S v Muzira (30 of 2024) [2024] ZWCHHC 30 (12 April 2024)

1 HCC30/24 HCCR1669/23 THE STATE versus LINOS MUZIRA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 12 April 2024 Assessor Mrs Mawoneke Mr Kamanga R. Nikisi, for the State N. Charehwa, for the accused Criminal Trial MUZOFA J [1] The accused is facing a charge of murder. The State alleges that on the 27 th of June 2020 at Shumbayaonda Business Centre, Chief Chirau, the accused assaulted the deceased, Donald Chitofiri with stones and bricks intending to kill him or realizing that there was a real risk or possibility that death may ensue but persisted in the conduct. [2] The accused denied the charge. Although he admitted having an altercation with the deceased, he remained adamant that he did not cause the deceased’s death. He shifted the blame to the deceased’s friends who threw a brick to strike him but missed and hit the deceased. In another breath he raised provocation. The State Case [3] To prove its case the State produced the following exhibits by consent. i. The post mortem report which recorded that death was due to severe multiple open skull fractures. ii. The accused’s confirmed warned and cautioned statement in which he denied the charge. He said he fought with the deceased. HCC30/24 HCCR1669/23 iii. iv. The sketch plan. A certificate of weight in respect of the stones and bricks allegedly used by the accused. v. The stones and broken bricks used by the accused. [4] The evidence of four witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. [5] The admitted evidence by Rudo Matekenya, James Bright, Deniah Memory Chivhanga can be summarised as follows. [6] The accused and deceased were at Shumbayaonda Business Centre together with other patrons gambling. The accused had US$1.00 which he intended to exchange for the local Zimbabwe currency. The deceased, offered to transact with the accused. He took the US$1.00 from the accused. However, he did not deliver the local currency equivalent. [7] Obviously the accused was not amused, he was angry and tried to retrieve his one dollar but failed. The accused briefly left the scene. He returned and warned the deceased that he would kill him. He threw a brick at the deceased. There was commotion. Most patrons ran away from the scene. [8] The deceased was severely injured. He lay on a veranda. Bright James was called to provide transport to ferry the deceased to the hospital. When Bright arrived at the scene the deceased had died. They called the police. [9] Seargent Deniah Chivhanga of ZRP Zvimba attended the scene of crime together with other officers. At the scene she observed that the deceased lay in a pool of blood. The deceased had multiple head injuries. Where the deceased lay, there were several stones and bricks which she recovered. They were produced as exhibits. The body was taken to the mortuary and a post mortem conducted. [10] Two witnesses Quiet Nyamidzi and Batsirai Kambarami gave evidence. They knew both the accused and the deceased as local community members. [11] Quiet Nyamidzi HCC30/24 HCCR1669/23 The deceased was his nephew. He knew the accused as one of the local residents in their community. On the fateful day he went to the Business Centre late in the day. When he arrived, he found some people gambling. The accused and the deceased were also at the Business Centre gambling. [12] The accused demanded his US$1.00 from the deceased. He did not know the genesis of this US$1.00 issue. They started pushing and tussling. The deceased tore the accused’s Covid pass. The offence took place during the Covid pandemic period. During this time traveling was limited. Only persons with valid traveling passes could travel. When the accused’s pass which enabled him to travel to work was torn by the deceased he got even more agitated. They continued to fight but were eventually refrained. [13] The accused briefly left the scene. The deceased resumed gambling. He stood by shuffling playing cards. While he did so, the accused threw a brick that struck the deceased. The deceased fell. Patrons ran around some rushed off the scene. He also left the scene to advise his friend about what transpired. He returned to the shops with his friend. [14] When they arrived at the scene, the deceased was lying on the ground. Accused was striking the deceased. He held the accused by his belt and refrained him from further assaulting the deceased. At this stage he did not see what the accused used to assault the deceased. [15]When he refrained the accused, they left going to a funeral. Later they advised the deceased’s grandmother about what transpired. [16] He did not see anyone striking the deceased except the accused person. [17] His cross examination skirted the issue about the deceased’s friends throwing bricks and stones. It focused on the provocation. Quiet conceded that the deceased was the author of the altercation. Firstly, he took the accused’s money and did not hand over the local currency equivalent. Secondly, he tore the accused’s Covid pass. The accused was visibly angry. [18] He was adamant that he saw the accused striking the deceased on the head. [19] Batsirai Kambarami HCC30/24 HCCR1669/23 He operated a shop known as Mukokera General Dealer at Shumbayaonda Business Centre and stayed at the shop. He was not at the shop during the day. He returned home around 3pm. There were people gambling. The deceased arrived at dusk. The assault on the deceased took place by the veranda of his shop. [20] Around 7pm they had retired to bed. Shortly thereafter he heard some noise and a stampede of people running away. He heard a voice threatening to kill someone or words to the effect, “I will hit you, you will not see tomorrow”. Obviously, he knew there was trouble, he decided to go outside and call for help. [21] He opened the door and saw the accused carrying stones in both hands approaching the veranda. He quickly closed the door for fear of being attacked. [22] He heard the accused continue to swear that he would damage the deceased beyond repair. At that time he was not aware of the identity of the person being attacked. [23] Under cross examination he confirmed that he did not know how the altercation started. He did not see the accused striking the deceased. He only saw the accused with stones and swearing. He also heard the deceased scream in pain. [24] Despite the witness professing ignorance on how the altercation started, he was questioned about the deceased’s friends. Naturally he did not know anything about it. The questions should have been directed to Quiet. [25] He was also quizzed about the illumination at the scene. He was clear, it was at night but there was moon light. He reconciled smoothly with Quiet’s evidence who said they had phone torches. He explained that they may have used the torches while gambling. On his part he could see the accused since there was moonlight. He could easily identify the accused since he had known him for one and a half years. The State then closed its case. The Defence Case [26] The accused adopted his defence outline. He elected to briefly explain what transpired. [27] He said he had an altercation with the deceased. He then fought with the deceased. He did not give details how they fought. HCC30/24 HCCR1669/23 [28] His cross examination was brief. There was no need for a sustained one for that matter. The accused was clear that he was provoked. [29] He was not quick to give details of how he fought with the deceased. It is only after some incisive questions that he let out some information on how he fought with the deceased. [30] He said as they tussled, he heard the deceased call out to his friends to strike the accused. A stone was thrown at him, he ducked and it struck the deceased. According to him the deceased’s friends targeted him . He could not tell who threw the stone. The defence case was then closed. Closing submissions [31] Both legal practitioners addressed the court in terms of s200 of the Criminal Procedure and Evidence Act. Both simply summarised the facts and did not relate to the defence and its effect on the circumstances of this case. [32] That section requires more than a summation of the evidence. It requires legal practitioners to summarise the evidence and address the legal issues arising from the facts. In this case the accused raised the defence of provocation. It was necessary for counsel to address the law and how it applies in this case. [33] Mr. Nikisi in his closing submissions urged the court to find the accused guilty of murder with actual intention. He submitted that Quiet was at the scene and was credible. Batsirai saw the accused at the scene with stones. The nature of injuries show that the accused intended to kill the deceased. [34] For the accused, the submissions were that he had no intention to cause the death of the deceased. The deceased was drunk and abusive. He was the aggressor. Quiet was not a credible witness, he contradicted himself on how the assault took place. In his evidence in chief, he said accused struck the deceased and ran away yet under cross examination he said accused struck the deceased twice. [35] The court was urged to reject Quiet’s evidence due to its inconsistency and that he had every reason to embellish his evidence since he was related to the deceased. HCC30/24 HCCR1669/23 [36] The second witness did not see the accused assault the deceased. The accused’s explanation should be accepted as the truth of what transpired. The accused must be found not guilty and acquitted. Factual Analysis [37] The court must make a factual finding on what transpired on the day from the evidence placed before it by both the accused and the State witnesses. [38] The following is common cause. The accused and the deceased had an altercation about one dollar. They fought using clenched fists. As they fought the deceased tore the accused’s Covid travelling pass. Nobody knows whether this was intentional or otherwise. What is known is that this further angered the accused. [39] What transpired thereafter is disputed. The accused said deceased’s friends intervened to assault him, yet the State witnesses allege the accused took a break then returned with a brick and struck the deceased. [40] Quiet was the only witness who gave direct evidence of the accused’s conduct in assaulting the deceased. Indeed, he was an uncle to the deceased and it maybe natural to embellish evidence. However, we were not given a reason to discard his evidence on that basis. If he intended to nail the accused through and through he could have done so. However, he told us that he saw the accused strike the deceased once and he rushed to call a friend probably to rescue his nephew. [41] We acknowledge that under cross examination he faltered and said he saw the accused strike the deceased twice. We have no problem with that. That on its own does not discredit his evidence. It is trite that bbefore determining the credibility of a witness who contradicted himself or herself, a court has to evaluate all the facts, taking into account the nature of the contradictions, their number, their importance and bearing on the rest of the evidence (see S v Mkohle 1990 (1) SACR 95(A). In this case whether it was once that he saw the accused strike the deceased or not is of low probative value because the accused was seen striking the deceased several times by Batsirayi. The contradiction is of no bearing to the rest of the evidence. The accused remains the only person who assaulted the deceased on the day. [42] Batsirayi’s evidence was circumstantial in nature. He saw the accused wielding the stones and swearing at someone that he would kill him. His evidence taken in conjunction HCC30/24 HCCR1669/23 with Quiet’s evidence together with the admitted evidence leads to one inference that the accused assaulted the deceased with stones. [43] The accused struck the deceased with a brick and there was commotion. People ran away. Accused remained with the deceased. Nobody saw what transpired in this gap period. However when Quiet returned to the shops he found the accused still assaulting the deceased. [44] We are required to assess the evidence holistically including his defence. In his warned and cautioned statement, he said he fought the deceased. However, in the details he said a friend to the deceased threw a stone and hit him. [45] It must be noted that the accused is the only person who was with the deceased after other patrons fled. It is surprising that he was conservative on the details, he chose not to clearly explain how he fought with the deceased. [46] The accused said the deceased’s friends threw stones. We wondered if the deceased’s friends took the risk to just throw stones at the two, when there was a high probability that anyone could be struck. [47] In his conservative explanation he told us about one brick that was thrown that he ducked and hit the deceased. He did not explain how the deceased sustained the multiple severe injuries on the head. The multiple injuries sustained by the deceased could not be a result of one brick. The injuries are consistent with the State witnesses’ evidence that the deceased was assaulted several times all over the body. [48] The accused chose to be mum on how the fight between him and deceased came to an end. He did not dispute Quiet’s evidence that when he returned to the shops, he found the accused still assaulting the deceased. He held accused by his belt to refrain him. [49] We therefore do not accept that the deceased’s friends, who were only seen by the accused had anything to do with the injuries sustained by the deceased. It was the accused who had an altercation with the deceased and they fought. The accused did not tell the court of any injuries he sustained. Batsirai saw the accused wielding stones swearing about killing someone. HCC30/24 HCCR1669/23 [50] The accused denied making any indications. However, he did not dispute the indications made by Batsirai, Dylan and Quiet which were reduced to a sketch plan placed before the court. [51] From the sketch plan, the deceased died by the Mukokera shop veranda, the shop operated by Batsirai. The stones allegedly used to attack the deceased were about half a metre from where the deceased’s body was. Batsirai did not tell the court that he kept stones by his veranda. The only reasonable inference is that they were used by the accused to strike the deceased. The accused did not dispute that the deceased was by the veranda. [52] We therefore come to the conclusion that the accused is the one who assaulted the deceased using the stones that were recovered. The Law [53] The accused raised provocation as a defence. In terms of s239 of the Criminal Code provocation is a partial defence. An accused can be convicted on the lesser charge of culpable homicide where the provocation is such that a reasonable person in the accused’s position and circumstances would lose his or her self-control. [54] The test is subjective at the first instance and then objective, the court must consider the circumstances under which the offence was committed and ask itself how a reasonable person in those circumstances would have acted. [55] The wording in s239 shows that the court must determine the accused’s subjective state of mind. See Dzaro 1996 (2) ZLR 541. [56] Despite raising the said defence, the onus remains on the State to prove its case beyond a reasonable doubt. In terms of s18 of the Criminal Code, it is the State’s duty to prove beyond a reasonable doubt that the defence does not apply. Application of the law to the facts [57] The accused was provoked on two levels firstly the deceased would not handover his one dollar. Then the deceased tore his Covid pass. We do not lose sight of the setting. This was a rural community, money maybe hard to come by. However, the amount involved was negligible. The provocation cannot be described as gross. Of course, the circumstances HCC30/24 HCCR1669/23 would anger any balanced individual, no one would tolerate to be patronized especially about their money. [58] The next issue is whether in spite of the circumstances he formulated an intention to kill. We have no doubt that the accused formulated an intention to kill. [59] Although people react differently to provocation. Some have a general hot temper and would want to inflict pain. Others are slow to anger. That therefore puts paid the need to get to the accused’s subjective state of mind. In this case the accused after being miffed they fought and were restrained. He went away and picked a brick to strike the deceased. [60] He had time to cool off. He simply yielded to a passion which aroused in him a desire to cause the death of the deceased. So, our answer to the first rung is that he intended to kill the deceased. [61] The next question is whether a reasonable person in the circumstances would have lost self-control and acted in this way? There was slight provocation in this case. A reasonable person, having been restrained in the first place and walked away would not have lost self-control. [62] Loss of self-control requires that, at the point of provocation, the accused snaps and acts at the spur of the moment. There must be no break or time to reflect on the course to take. See S v Mafokosho HMT 33/20. In this case, the accused did not snap. His attack on the deceased was sustained for some time. Quiet went to look for help and returned, he found the accused still assaulting the deceased. [63] He used stones and bricks which are generally lethal weapons particularly if directed to the head. The accused did not have the actual intention to cause death despite his expressions heard by Batsirai. To our minds those expressions show how angry the accused was. [64] His persistence is apparent in his continued picking of stones striking the deceased who was already on the floor, death was foreseeable. The deceased was at some point lying on the veranda and the accused continued to bash his head using stones, Surely any person faced with such circumstances can easily come to the conclusion that there was a realisation that death will result but the accused persisted in the conduct. The accused is accordingly found guilty of murder with constructive intention as defined in s 47 1 (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. HCC30/24 HCCR1669/23 Sentence [65] In passing sentence the court will consider that the accused is a first offender aged 39 years. He has family responsibilities . He acted out of anger after being provoked. We were told he wanted to exchange the one dollar for the local currency to give the money to his children for use at school. Provocation shall therefore be treated as mitigatory. [66] It was submitted for the accused and correctly so that there was no aggravating circumstances, the murder was not premeditated. We were urged to impose a sentence in the range 12 to 15 years on the authorities of [67] In aggravation the state emphasised the need to preserve life and urged the court to impose a sentence in the range of 15 to 20 years. [68] The accused is sentenced to 18 years imprisonment . National Prosecuting Authority, the State’s Legal Practitioners. Murisi and Associates, the accused’s Legal Practitioners.