S v Nyamande (871 of 2022) [2022] ZWHHC 871 (30 November 2022)

1 HH 871-22 CRB 58/22 THE STATE versus DENFORD NYAMANDE HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 5 October 2022, 29 &30 November 2022 Criminal Trial Assessors: Mr Jemwa Mr Shenje J Mugebe, for the state M Tshuma for the accused MUNGWARI J: The accused was indicted before this court facing two counts of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge was that he brutally attacked his 87 year old father, Felix Taonana Chiodza and his 89 year old father’s sister Angela Bhunu with lethal weapons and inflicted mortal injuries on them. In detail, the allegations are that Denford Nyamande (hereinafter “the accused”) had a long standing dispute with his father Felix Taonana Chiodza (hereinafter “1st deceased”) and his father’s sister Angela Bhunu (hereinafter” 2nd deceased”) which stemmed from allegations of witchcraft. The accused believed that the two were responsible for bewitching him and bringing misfortunes and illness in his life. Consequently, on 22 March 2021 the accused left his place of work at Dema in Seke communal lands. He proceeded to 1st deceased’s place of residence in Marumisa village Murehwa. He found the 1st deceased alone in his bedroom hut. He picked an axe which was in the room and struck the 1st deceased once on the left hand and twice on the head with the back of the axe. The 1st deceased died instantly. The accused closed the door to the hut and proceeded to Chidziva village where the 2nd deceased resided. There, he found the 2nd deceased alone in her house. He had in hand a 200ml zimbo spirit can which he was drinking from. He confronted the 2nd deceased and demanded that she remove the spell that she had cast upon him which he alleged was the source of his misfortunes. When that did not happen, he picked a hoe that was in the house and hit her with it twice on the head until the HH 871-22 CRB 58/22 hoe handle broke. The 2nd deceased bled to death. He left the empty alcohol container at the scene and disappeared until his arrest. The accused denied the double homicide charges of murder. In his defence outline he stated that he had no intention of killing the deceased as they were both his relatives. His account of the events which led to the double tragedy was that, sometime in 2019 after the family had been hounded by a series of misfortunes, a prophet was brought to the 1st deceased’s homestead in order to conduct a cleansing ceremony. During the ceremony which saw family members converging at the 1st deceased’s homestead, the prophet had removed some witchcraft apparatus from the 1st deceased’s homestead. At this gathering the 1st deceased had confessed to owning the witchcraft paraphernalia. Before the prophet left he also fingered the 2nd deceased as a key participant in the black occult. He warned those gathered that she too was in possession of witchcraft apparatus which required exorcism. Since that demonstration the accused believed that the 1st and 2nd deceased dabbled in witchcraft for different purposes which included causing his misfortunes. The accused further alleged that a clear illustration of the practice of witchcraft by the two deceased occurred the following year in December 2020. He visited the 1st deceased at his homestead. On that day he had felt excruciating body pains as he was cleaning the 1st deceased’s yard. He had confronted the 1st deceased who warned him not to inform anyone about it. Strangely though, after speaking to the 1st deceased about the ailment he immediately felt better. He was certain that the 1st deceased had through his occultist powers released him from the pain he had felt. It made sense to him therefore that when he fell sick in March 2021, he approached the 1st deceased for relief because this time around the illness was severe. He experienced pain in his feet. He said more alarmingly his genital organs shrunk. Before he set out to get assistance he engaged the 1st deceased who promised to relieve him of the pain. On the fateful day he left Dema where he was working, for Marumisa village where the 1st deceased resided. Expecting to get assistance like before, the accused was surprised when the 1st deceased spurned his request and even referred him to the 2nd deceased for assistance. A misunderstanding ensued between the two and in the heat of the moment the accused picked an axe which was in the 1st deceased’s hut and struck him with it until he fell. Still on his quest for relief from the pain, he left the premises en route to 2nd deceased’s place. Along the way he bought a bottle of Zimbo beer. He arrived at 2nd deceased’s place with it in hand. He confronted the 2nd deceased who professed ignorance on the source of his illness. She referred him back to the 1st deceased. She insisted that she was also a victim of the 1st deceased’s witchcraft and HH 871-22 CRB 58/22 informed him that the 1st deceased had a shrub in his possession that he could use to cure him. Driven by the intense body pains that he was feeling the accused “lost it” and using a hoe handle that he picked inside her house he assaulted the2nd deceased. Thereafter, he went away. In essence the accused pleaded the defence of provocation. COMMON CAUSE ISSUES The facts of this matter are largely undisputed and can be summed up as follows: 1. There had been a long standing dispute between the accused and the deceased persons arising from allegations of witchcraft 2. On the fateful day the accused approached the both deceased persons and confronted them over his belief that they were bewitching him and causing him untold suffering. 3. The accused took an axe and hit the 1st deceased repeatedly with it. 4. The 1st deceased sustained severe injuries from which he died. 5. The accused caused the death of the 1st deceased 6. The accused proceeded to the 2nd deceased house 7. He picked a hoe handle and used it to assault the 2nd deceased repeatedly 8. The 2nd deceased sustained mortal injuries 9. The accused left the empty Zimbo beer can from which he had been drinking when he arrived at 2nd deceased’s house 10. He caused the death of the 2nd deceased STATE CASE Prosecution opened its case by applying to tender the autopsy reports that were compiled by Doctor Yoandry Olay Mayedo a pathologist employed at Parirenyatwa Hospital. The doctor had examined the remains of both deceased on 8 April 2021. On the 1st deceased, the doctor noted surface wounds on the left eyebrow and left ear and internal head injuries. In the final analysis he concluded that death was as a result of brain injury, left temporal commutes bones fracture and severe head trauma. With the consent of the defence the postmortem report was duly admitted into evidence as exhibit no 1. The cause of the 1st deceased’s death was therefore uncontentious. Likewise the defence also did not object to the admission of the postmortem report that was compiled after examination of the remains of the 2nd deceased. The examination confirmed that the cause of death was as a result of brain injury, right front parieto temporal commutes bones and severe head trauma. The cause of 2nd deceased’s death was also undisputed. HH 871-22 CRB 58/22 The state thereafter applied to produce the accused’s confirmed, warned and cautioned statements. The first related to the death of the 1st deceased whilst the 2nd related to the 2nd deceased. The defence consented to the admission of both statements. The statements were confirmed by a magistrate sitting at Murehwa on 1 April 2021. The statements were accordingly admitted as exhibit no 3 and 4 respectively. In exhibit 3 the accused mentioned the following relevant factors under caution: “On 22 March 2021 I left Dema going to our rural home in Murewa. I arrived at our rural home,I procceded to the deceased’s house Felix Taonana Chiodza and I talked to him concerning my sickness but he insisted that he does not know anything. During that time we had an altercation and I got angry, I too