S v Dzama (32 of 2024) [2024] ZWCHHC 32 (15 April 2024)

1 HCC 32/24 HCCR 1666/23 THE STATE versus DOUBT DZAMA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 15 April 2024 Assessors: Mrs Mawoneke Mr Kamanga Criminal Trial N. S. Sibesha, for the State M. James, for the accused MUZOFA J: The accused is facing a murder charge as defined in s47 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It is alleged that on the 22nd of July 2023 the accused assaulted the deceased, one Vimbai Mapininga all over the body with intention to cause his death or realizing that there was a real risk or possibility that death may result and continued to engage in the conduct. The accused denied the offence and raised self-defence. In his defence outline he detailed what transpired on the day. In short he said he attacked the deceased after he entered his hut at night. He thought the deceased was a thief or a robber. The background to the case is undisputed and was set out in the summary of the State case marked Annexure 1. The accused was married to one Sharon Dzama hereinafter referred to as Sharon. They had four children. The accused resided in Harare and Sharon his wife lived in their rural home in Mhondoro with their four children. They took turns to visit each other, with the wife Sharon frequently visiting her husband the accused in Harare. On the weekend of 22 July 2023, Sharon was supposed to travel to Harare, she decided against going. She requested the accused to send some groceries. HCC 32/24 HCCR 1666/23 The accused, on second thoughts decided to visit his family instead of sending the groceries. He took a bus and arrived around 7pm. On arrival at their village, he did not proceed straight home to his homestead. He went to his uncle’s homestead to while up time. Around 9pm he was accompanied to his homestead by his uncle Munashe a young boy aged 17 years. When he got to his homestead, his wife and children had retired to bed. They woke up and exchanged pleasantries. They all share one room, semi divided by a curtain and a kitchen dresser. When they had just retired to bed the deceased arrived. What transpired after this, is in dispute. According to the accused the deceased, pushed the door and gained entry into his house. There was no light inside the room. The accused thought it was a thief or a robber. The State alleged that the accused had lured the deceased to his homestead. He must have suspected that he was having a love affair with his wife Sharon. This is what the State sought to prove in its case. The State produced the following exhibits by consent: 1. The post mortem report. The Doctor who examined the deceased’s remains concluded that death was a result of skull fractures, subdural and subrachnoid haemorrhage. 2. A confirmed warned and cautioned statement. In his response to the caution the accused said he struck the deceased thrice on the head in self-defence as the deceased had attacked him. 3. A sketch plan drawn from indications made by the accused and Sharon. 4. The wooden axe handle that the accused used to strike the deceased which was 75cm long, 5cm in diameter at the head and the handle was 2cm in diameter. 5. A white cellphone written Honour with a black cover. The evidence of two witnesses Patience Marozva and Kudakwashe Chiremba was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act. Their evidence was formal. Patience was the nurse at Gora Clinic where the deceased was taken to after the assault. She examined the deceased and discovered that he had no pulse. She observed that the deceased had a cut above the left eye and a swollen right leg. The body was then conveyed to Mhondoro Rural Hospital mortuary after the police report. Kudakwashe Chiremba was part of the police investigation team. His evidence corroborated Litshoni Mpofu’s eveidence that was led before the Court. They conducted the investigations HCC 32/24 HCCR 1666/23 together. Three witnesses gave evidence in court. Sharon Dzama She was married to the accused for 13 years. They had four children. She gave her evidence in between tears probably regretting her conduct. The deceased lived in their neighbourhood in Mhondoro. He was her boyfriend. Their relationship was about 5 months. She stayed with her children at their village in Mhondoro. The accused, her husband would visit at times but she is the one who usually went to Harare. On the 22nd of July 2023 which was a weekend, she decided not to go to Harare. She spent the day doing her chores. In the evening when she and her children retired to bed, Munashe her 17-year-old uncle knocked the door. He said he had brought a parcel sent from Harare by the accused. To her surprise the door was pushed, opened then the accused and Munashe entered the hut. The accused was not in a good mood. His response to her greetings was not the usual response. Munashe immediately left. The accused was agitated. He asked about the children, where they were. He was shown and he physically checked who was sleeping and where. He then asked for her phone. He was given. He started operating it. She did not know what he was doing or checking on the phone. As he operated her phone they spoke about other issues. The accused then asked for an axe handle that was usually kept in the house. He searched for it. Sharon advised him that it was under the bed. He took it and placed it behind the door, where the accused also stood. After about 30mins or an hour, the deceased arrived. When the deceased arrived, he knocked once and pushed the unsecured door and entered the hut. HCC 32/24 HCCR 1666/23 The accused struck the deceased once on the back. Deceased turned and faced the accused. They tussled and pushed each other outside. They fought. She could not restrain them. She fled from the scene. She went to a neighbour’s homestead and reported. That night she did not return home. She spent the night in a field. She heard voices at the scene of crime. She returned the following day when she heard of deceased’s death. Under cross examination she said she had not invited the deceased to her place. Infact she never met her lover at accused’s homestead they had a love nest where they met. Although she admitted to have communicated with the deceased that day, she denied inviting him. She said inside the house it was dark but outside there was moonlight. She could neither deny nor confirm that the deceased could have invited the deceased. She was truthful why she had the relationship with the deceased. She said she had problems with the accused and the relationship soothed her stressful life. Lawrence Dzama He was the headman. Around 11pm on the day, the accused called him by phone and advised him that he had assaulted the deceased. He proceeded to the accused’s homestead but it took some time to get to the deceased’s homestead since its some distance and they walked on foot. When he arrived, he found the deceased lying beside a fire about one and a half metres from accused’s hut. They secured transport around 4am to take the deceased to Gora Clinic where he was declared dead on arrival. His cross examination was inconsequential. He had no knowledge of how the offence was committed. He saw three cut wounds on the deceased. Deceased could not speak when he got to the scene of crime. The accused looked very restless and was concerned about the delays in taking the deceased to the Clinic since there was no transport. Litshoni Mpofu He was assigned to investigate the case. He proceeded to the scene of crime in the company of other police officers. At the scene of crime, they recovered an axe handle. The deceased’s body which was at Gora Clinic was taken for a post mortem. Upon the accused’s arrest, he surrendered the deceased’s cellphone which was produced before the court. The accused told the witness that he browsed the deceased’s phone and saw communication between the deceased and his wife which confirmed their love relationship. Under cross examination, the officer confirmed that he also saw the messages HCC 32/24 HCCR 1666/23 between the deceased and Sharon. The State then closed its case. The Defence Case The accused adopted his defence outline and opted to give evidence to bolster it. He knew the deceased and respected him as a father. He grew up with deceased’s children and was in the same class with one of his sons. He denied sending a message to the deceased to lure him to his homestead. When the deceased entered the hut, he attacked him and they fought. The deceased ran out, tripped and fell. He then identified himself as Chindavata. The accused then stopped hitting the deceased. When the deceased fell, his phone fell out of his pocket, his child picked it. He called the deceased’s wife to come, she refused. She said she was tired of the deceased and Sharon’s illicit affair. The deceased’s brother is the one who went to the scene. He chided the deceased about his adulterous love affair. He scrolled the deceased’s phone and saw the messages between the two lovers. Sharon had advised the deceased that she was not going to Harare. He did not tell the court if there was a specific message inviting the deceased to his homestead. Under cross examination the accused said before the deceased came to his house, he did not know about the relationship. He knew about it after he had assaulted the deceased, he thought he was a thief or a robber. He however said he was pained when he discovered the relationship. He denied planning to kill the deceased. The defence then closed its case. The Closing Submissions Both counsel filed their closing submissions in terms of s200 of the Criminal Procedure and Evidence Act (Chapter 9: 23). The state urged the court to find Sharon credible as she did not exaggerate her evidence. Further to that, that the state proved its case based on both direct evidence from Sharon and circumstantial evidence. After the accused had lured the deceased he left the door slightly open for the deceased to enter. The accused HCC 32/24 HCCR 1666/23 strategically positioned himself behind the door and attacked the deceased when he entered the house. The accused was not attacked by the deceased, self-defence is not applicable in this case. The accused was the factual cause of the death. Relying on the cases of S v Kurangana HH 267/17 and S v Wirosi HMT 57/21 it was submitted that the accused had actual intention to cause the death of the deceased as evidenced by his conduct before, during and after the commission of the offence. He had armed himself and strategically positioned himself to pounce on the deceased upon entrance. He used an axe handle and struck the deceased thrice on a vulnerable part of the body the head. All these circumstances lead to one inference, that he had actual intention to kill. For the accused, we were urged to find the accused not guilty and acquit him as he acted in self-defence. According to the defence, Sharon’s evidence must be treated with caution. She was in an extra marital affair with the deceased and had a reason to embellish her evidence. Further on the authority of S v Makanyanga 1996 (2) ZLR that the accused’s defence must be accepted where it appears reasonably possibly true. In this case the accused was attacked by the deceased using a knobkerrie or some hard weapon. The accused was entitled to defend himself from the intruder who attacked him. Factual and Legal Analysis The factual issue the court must resolve first is why the accused assaulted the deceased? Did the accused assault a suspected criminal who intended to steal or rob them or his wife’s paramour? The answer will invariably guide the court to the accused’s intention. In assessing evidence the court shall bear in mind that the evidence must be assessed holistically, a piecemeal approach to assessment of evidence can result in an improper result. In S v Chabalala 2003 (1) SACR 134 (SCA) the court correctly set out the manner in which evidence should be evaluated at 139 (i) -140(b) as follows, "The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence taking proper account of inherent strengths and weakness, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt of the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a HCC 32/24 HCCR 1666/23 material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch to one (apparently) obvious aspect without assessing it in the context of the full picture of the evidence". Sharon was the key witness. As stated her evidence must be treated with caution she was at the centre of this love trial angle. A closer look at her evidence did not show any signs to embellish her evidence or falsely implicate the accused or load the blame completely on the deceased. We did not find any reason to reject her evidence in its totality. She was brave enough to admit the love relationship in public, she could have simply denied it. She also said she saw the accused strike the deceased once on the back. Had she intended to falsely incriminate the accused she could have exaggerated and told the court how the accused bashed the deceased several times all with an intention to secure a conviction. She did not do that. She also said that the two fought which corroborates the accused’s evidence. She confessed that she did not know if the accused sent a message inviting the deceased to their homestead. We therefore accept that she was a credible witness. As correctly stated by the State there was both direct and circumstantial evidence in this case. Circumstantial evidence is drawn from proved facts that point towards the guilt of the accused. Only one inference must be drawn from the cumulative evidence. There are common cause facts in this case where inferences can be drawn. Sharon had declined to go to Harare to visit the accused. Prior to that the accused and Sharon had argued about her movements and the conversation ended with the angry accused telling her that “he knew what she was doing there”. The accused decided to visit her without her knowledge. The non-communication could have been strategic. When the accused arrived by bus, he did not go straight to his homestead, he went to his uncle’s homestead. We were not given a reason why the accused decided to visit his uncle first. Around 9pm he proceeded to his place in the company of Munashe. When they arrived Munashe knocked the door, when Sharon inquired, it was Munashe who responded falsely that he brought a parcel sent by the accused. This part of Sharon’s evidence was not HCC 32/24 HCCR 1666/23 disputed. Why would Munashe misrepresent facts about the accused? Why did the accused choose to use Munashe if he was simply visiting his family? From these common cause facts the only inference is that the accused intended to make a surprise visit on Sharon. His conduct after he got home confirms that his visit was not only to deliver groceries. When the accused entered the hut, there was no light. Although the State in its outline indicated that the accused lured the deceased to his homestead Sharon was non-committal on the issue before the court. However, she said the deceased took his phone and operated it. The accused denied this. This issue about the phone must be analysed holistically. After assaulting the deceased, and the deceased was taken to the Clinic, the accused took the deceased’s phone. One wonders why he would take a suspected thief or robber’s phone. We are mindful that he did not take it after he learnt of the love affair as he said. He said his child picked the phone when the deceased fell. He chose not to surrender the phone but keep it. Obviously he kept it for the purposes of evidence. He also went through the phone messages and saw the communication between the deceased and Sharon. In our view the accused’s conduct partially corroborate Sharon’s evidence that the accused took her phone and operated it. The accused was aware that evidence of the illicit affair between the two can be found on the phones. There is a high probability that the accused after going through Sharon’s phone he either sent a message to the deceased or he saw some communication about his coming. Either way the accused must have known that the deceased was coming. He prepared for it. The accused denied looking for an axe handle. It occurred to us that, this hut was furnished. It had a bed, a kitchen dresser, a lounge suit and other household property. It was literally a bedroom, kitchen and dining or lounge. It is likely that there was limited space to move around. The accused had not been at his home. He did not know where the axe handle was. The room was dark how did he manage to pick the axe handle unless he knew where it was? Sharon said it was under the bed and had told the accused where it was . The accused had retrieved it beforehand and placed it behind the door. We do not accept that the accused picked the axe handle randomly. Even the way the accused explained how the attack took place defies logic. In his evidence in chief, he said they had retired to bed. We now know that the deceased was not a thief of tangible property, although his visit amounted to some act of dishonesty. The accused said, they heard the door HCC 32/24 HCCR 1666/23 being opened. His wife Sharon asked who it was. The two that is the accused and Sharon discussed on how to proceed. He wanted to go to the door but Sharon discouraged him. This was a single room. Surely deceased would have heard the conversation. Being aware of his devious visit he would not remain in the hut. No philanderer would challenge their lover’s husband in his house. More so even if this was a thief he would not remain in the house. We have no doubt that the deceased was invited to the homestead. There was no direct evidence who invited her . The State could have done better had it placed before the court some excerpts from the deceased or Sharon’s phone to confirm the communication between the two. The time the messages were sent would have confirmed or rebutted the suspicion that the accused lured the deceased to his home. The accused arrived in the evening if the messages were sent around 9pm then it could have been the accused. That as it may be from the events of the day, it admits of no doubt that the accused was aware that the intruder was his wife’s paramour. We therefore accept Sharon’s evidence that the accused prepared himself for the deceased’s arrival. We accept that he was the first to strike the deceased on the back. According to Sharon the deceased turned and the two fought. The Magistrate who confirmed the accused’s warned and cautioned statement recorded that the accused had bruises on the left cheek. The accused said he was hit with a knobkerrie. One wonders where the deceased who was not a robber would have gotten a weapon in this dark room. It is likely that the deceased was not armed. He had visited to enjoy the fruits of a forbidden tree, he must have been relaxed and unaware of the lurking threat ahead. He had visited his lover and had no reason to be armed at all. From the circumstances of the case we conclude that the accused must have known about this illicit affair. When Sharon refused to go to Harare, a perfect opportunity presented itself to catch the love birds in the act. This, in our view is the reason he opted to go to his house late at night. When he failed to catch the love birds, he went a step further and lured the deceased into his home. We do not accept Sharon’s evidence that she did not meet with deceased at accused’s homestead. The deceased’s conduct when he arrived was unusual. It’s said he knocked once and pushed the door open. Deceased obviously had been invited and needed no authority to get into the house. Generally visitors knock, they wait to be invited into the house. The HCC 32/24 HCCR 1666/23 deceased did not bother about such courtesies which means he was used to this place and needed no invitation to get inside. The post mortem report shows that the deceased sustained injuries on the head. Three places were identified all at the frontal region and side of the head. The injuries confirm the accused’s evidence that he struck the deceased thrice on the head. The Law In terms of its definition, murder is committed where the accused is both the factual and legal cause of death. The accused must either have the actual intention to cause death, or had a realisation of a real risk or possibility that death may result but persisted with the conduct. The test for intention is subjective. The court must endeavour to decipher what was in the accused’s mind at the time the offence was committed. The accused raised self-defence. Self-defence is a complete defence where it is shown that the accused was under an unlawful attack or the attack was imminent, that his conduct was necessary to avert the attack, the means used to avert the unlawful attack were reasonable in all the circumstances; and any harm or injury caused by his or her conduct. In assessing the applicability of the defence the court must put itself in the shoes of the accused and consider the stress, and other factors operating in the accused’s mind. Section 253 of the Criminal Code. The use of the word “and” after each requirement means that the requirements should be taken cumulatively and should all be met. However if the other requirements are met except that the means used by the accused to avert the unlawful attack were not reasonable in all the circumstances, the accused will have a partial defence to a murder charge and will be found guilty of culpable homicide. See s 254 of the Criminal Law Code, S v Mugarisanwa HH62/23. Application of the law to the facts We have already made a factual finding that there was no unlawful attack on the accused that he could act in self-defence. He was not attacked first . He is the one who attacked his wife’s lover and they fought. Self-defence therefore does not arise. In our view the facts may give rise to the defence of provocation. Section 239 of the Criminal Code provides for the defence of provocation. It is not a complete defence. At most HCC 32/24 HCCR 1666/23 it can be a partial defence to a charge of murder. In S v Mugarapanyanga HH 211/23 the Court had this to say on the applicable test for provocation, ‘In murder cases there is a two-stage approach in applying the defence. The first stage is to decide whether the accused had the intention to kill or the realization that death could occur when he or she reacted to the provocation. If the accused did not have the intention or realization, he or she will not be convicted of murder, but culpable homicide. If the accused had the intention to kill or realization that death could occur, the court will proceed to the second stage, which is to decide whether the accused lost his or her self-control and killed the deceased in circumstances where even a reasonable person faced with this extent of provocation would also have lost self-control. If the accused lost control and a reasonable person would also have lost control, the accused will have a partial defence and will be found guilty of culpable homicide: see Prof G Feltoe Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] Legal Resources Foundation, 2nd Edition 2012 @p 216.’ In this case the accused acted more out of anger than provocation. He did not find the deceased in his home. The deceased was invited probably by the accused. He had time to prepare himself on how he will deal with the deceased. At the time, the accused cannot be said that he had the actual intention to kill but he realised that death may result. He waylaid the deceased armed with an axe handle. The second stage is whether the accused lost self-control in circumstances where a reasonable person would have lost self-control. We do not think he lost self-control. As already noted the accused acted more out of anger than. A reasonable person in the circumstances would not have lost self-control. There was no self-control to even relate to. The accused had time to think through his response to this paramour’s presence. If a person purposefully executes his plan, it cannot be said to be loss of self-control. Our view is that even if the accused planned to attack the deceased, he lacked the actual intention to cause death. His intention was to expose the illicit relationship and gather evidence. This is the reason why he took the deceased’s phone with him. It also explains why he went through the deceased’s phone to get messages to confirm the relationship between the deceased and Sharon. Accordingly, we find the accused guilty of murder with constructive intention. Sentence Both counsel were agreed that the offence was not committed in aggravating circumstances. HCC 32/24 HCCR 1666/23 The accused is a first offender who has lived the past 41 years with no brush with the law. He had family responsibilities a wife and four children aged 12, 9,5, and 2 years. He was the sole bread winner therefore sending him to prison will affect his family. However the accused has been convicted of a serious offence where a non-custodial sentence would be inappropriate. The accused is remorseful he tried to secure help for the deceased. His family tried to offer an olive leaf to the deceased’s family which was rebuffed. We shall also take into account the 8 months pre incarceration detention as mitigatory. It is aggravating that a life was lost. Indeed nothing good can be said about the deceased’s conduct on the day. The right to life provided in the Constitution 1 is not for the good or the bad it is for all and sundry. No one has a right to take it away except pursuant to a lawful process. The accused and indeed his family will live with the stigma that he is a murderer which is a sentence on its own. Even if he discovered that his wife of 12 years was unfaithful he had ample time to make a conscious decision. He could have initiated divorce proceedings. Either way the marriage now is gone. No one should take the law into their hands. The court must consider the offence, in this case it is a serious offence. It must also consider the accused and his circumstances. He is fairly young but also acted out of anger and to some extent provocation which shall be treated as highly mitigatory. The court must also consider the interests of justice. The interests of justice encompass the legislative purpose, the public policy consideration and the interest of the public. I have already alluded to the policy consideration everyone has a right to life and no one should take the law into his or her hands. The public expect that spouses should be faithful to each other. There may be a divided opinion on what should happen to the paramour particularly the one who knows that the woman is married. In my view the public opinion bows to the policy considerations. In view of the provocation the following sentence is imposed. 13 years imprisonment National Prosecuting Authority, the State’s legal practitioners. Chikwangwani and Tapi Attorneys, the accused’s legal practitioners. 1 S 48 of the Constitution of Zimbabwe