S v Tarashira (24 of 2024) [2024] ZWCHHC 24 (6 March 2024)

1 HCC24/24 HCCR1609/23 THE STATE versus LAMECK TARASHIRA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 13, 14, 27 February & 6 March 2024 Assessors, 1. Mr. Chivanda 2. Mrs Mawoneke K. Teveraishe, for the State M. Magama & F. Murisi, for the accused Criminal Trial MUZOFA J Background [1] On the 18th April 2023 the accused and his wife the deceased left home and proceeded to Gomango shopping centre, Landfall, Mutorashanga to celebrate the Independence Day. Unfortunately a day that started with merry making ended in tragedy. On their way back they had an intense altercation. The accused pushed the deceased off the road, sat on her strangled her and stabbed her with a broken mirror. He left her lying helplessly by the road. [2] The accused was charged with murder in terms of s47 (1) of the Criminal Code in that he assaulted the deceased with actual intention to cause her death or that he foresaw that death was imminent but persisted in his conduct . [3] The accused denied the offence and raised self-defence. He said when they had an altercation, the deceased suddenly attacked her with a broken mirror which she took from her hand bag. He wrestled the mirror from her and stabbed her with it. He denied strangling her. The State Case HCC24/24 HCCR1609/23 [4] At the onset the State produced the following exhibits with the consent of the defence; i. The accused’s confirmed warned and cautioned statement together with the script of the confirmation proceedings which was marked exhibit 1. The accused’s response to the charge was as follows; “My name is Lameck Tarashira and I have understood the nature of the inquiry and caution. The now deceased and myself were staying together as husband and wife and I had one child with her. On 18 April 2023 the now deceased and I were at Gomango Business Centre celebrating Independence Day when I saw Dennis Chihata who is the now deceased’s ex-boyfriend touching her buttocks. This did not go well with me until we left the place going to our home. Whilst on our way going home, we started quarrelling again until I strangled her, overpowered her, took a mirror which was in her purse and struck her several times with it on the face and nose until she died. I got the mind to rape her after she died. I then left and informed her sister, Mai Evernice of what had happened. I then ran away into the bush and I was arrested the following day. That is what happened.” ii. The record of indications made by the accused which was reduced to a sketch plan. The record and the sketch plan were marked exhibit 2 and 3 respectively. iii. The post mortem report which was marked exhibit 4. The cause of death was recorded as asphyxia. [5] The evidence of nine witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. This dispensed the need to prove any of the averments stated in the witnesses’ statements. [6] Their evidence can be summarised as follows: Taizivei Donati She was the deceased’s sister. On the fateful day she received a report from Sharon and Juliet that the accused was assaulting the deceased. She invited the deceased’s son one Moses Nyatsande and together they proceeded to the scene. They found the deceased lying lifelessly besides a road. The deceased was bleeding from the left side of her face. They returned home where they informed their brother one Afuwero Kurupira. [7] Moses Nyatsande HCC24/24 HCCR1609/23 He was the deceased’s son. The accused was his step father. He was advised by Taizivei about the assault on the deceased. He proceeded with Taizivei to the scene where they found the deceased already dead by the road side. [8] Afuwero Kurupira He was the deceased’s brother. On the 18th of April he was also at the Business Centre celebrating Independence Day with others. He saw the accused and the deceased quarrelling. It seemed they then resolved their issues. Around 2050 hours he returned to his home. At the compound he met the accused carrying his satchel. They chatted a bit and each went home, so he assumed. He was shocked when he later received a message on the deceased’s death from Moses that night. [9] He proceeded to the scene of crime and indeed found the deceased lying lifeless beside a road. He went and advised the deceased’s friend Tsitsi Agrippa who then filed a police report. [10] Tsitsi Agrippa She was the deceased’s friend. She received the message of deceased’s demise. She went to the scene and subsequently reported the matter. [11] Taxas Manditsvara and Julius Mutepeya. The two were police officers who were involved in the investigations. They attended the scene of crime and caused the deceased’s body to be taken to Banket Hospital. Before the deceased’s body was taken to the Hospital they examined it and observed that it had scratches on the neck. The deceased’s undergarments had been removed and torn. They observed two spots on the ground soaked in blood. They recovered a blood-stained broken mirror near the deceased. [12] Brian Kamunga A mortuary attendant who received the deceased’s body at Banket Hospital. He identified the body to the medical officer who examined the deceased and compiled the post mortem report. [13] Maxwell Madanwa HCC24/24 HCCR1609/23 He was a government clinical officer employed by the Ministry of Health and Child Care. On the 19th of April 2023, he examined the remains of the deceased Fungai Shereni and concluded that death was due to asphyxia. [14] Two witnesses gave oral evidence. The two juveniles aged 13 and 14 years and in grade 7 shall be identified as X and Y. Their evidence is similar in material respects. [15] X and Y also went to Landfall Farm to celebrate Independence Day on 18 April 2023. They danced to music, socialised and made merry with food and drinks at Gomango where the celebrations were held. They knew the accused and deceased as husband and wife. They lived in the same community at Mapulanka, Mutorashanga. [16] They left the place in the evening around 7 pm when it was a bit dark. [17] When they walked along the road back home, they heard voices ahead of them. They ran to catch up with the people for company. Obviously as children they needed some form of security. They caught up with the accused and the deceased. [18] They were about a metre or so as they walked with the two. Suddenly the accused pushed the deceased off the dust road to the grass. The deceased fell down. The accused sat on her while strangling her. He told them to rush to the compound and advise people that he will kill the deceased. They rushed to Mapulanka compound where they advised Taizivei, the deceased’s sister. X proceeded to her home while Y accompanied Taizivei to the scene of crime. Factual Analysis [19] The court must first decide whether X and Y were credible witnesses. They were the only ones who gave oral evidence. [20] Their cross examination could not discredit the material part of their evidence. They were cross examined on the source of light. It is common cause that it was dark or getting dark. X said she could see since there was moonlight yet Y said the deceased had a small phone whose torch was switched on. [21] The differences in the source of light in our view does not discredit their evidence. The bottom line is each one of them saw what transpired which was not controverted. They saw the accused strangling the deceased. HCC24/24 HCCR1609/23 [22] Their evidence was not exaggerated. They did not see anything about the stabbing. That the deceased was strangled is confirmed by the post mortem report. Death was due to asphyxia. [23] The clinical officer who examined the deceased noted multiple bruised marks on deceased’s neck. The bruises were on the frontal part of the neck where the wind pipe is located. He explained asphyxia in layman’s language as failure to breathe. His narration was that there was some tempering with the neck which inhibited air going down into the lungs leading to death. According to him, the puncture wounds did not contribute to the deceased’s death. This corroborates X and Y’s evidence that the accused sat on the deceased and strangled her. Their evidence is supported by real evidence in the form the wounds observed by the medical officer. [24] X and Y were credible witnesses. They had no reason to exaggerate or down play the events of the day. They simply knew the two as a married couple. They did not witness the stabbing which they could simply have said they did if they wanted since they were the only people who witnessed the event. [25] The accused confirmed that the two were within some distance from them although he denied talking to them. Our conclusion is that either the deceased or the accused told the two children to go and report to people at the compound. The two differed on who told them to go and tell people at the compound. X said it was the accused, yet Y said it was the deceased. [26] We accept their evidence in its totality in so far as what transpired leading to deceased’s death. [27] We are required to consider the accused’s explanation and make a judicious decision whether it is reasonable in the circumstances. A man cannot be said to he heard in the absence of a proper ventilation of his explanation to the allegations. This is every accused person’s right as established by case law and substantive law. [28] The accused was not consistent in his explanation. One hallmark of truthfulness is consistency in material respects. Minute and irrelevant details maybe foregone but there are main details that, as a court we expect to be consistent in the accused’s warned and cautioned, HCC24/24 HCCR1609/23 his defence outline and eventually his evidence in chief and his responses in cross examination. [29] In his response to the police the accused gave a damning explanation as follows” “My name is Lameck Tarashira and I have understood the nature of the inquiry and caution. The now deceased and myself were staying together as husband and wife and I had one child with her. On 18 April 2023 the now deceased and I were at Gomango Business Centre celebrating Independence Day when I saw Dennis Chihata who is the now deceased’s ex-boyfriend touching her buttocks. This did not go well with me until we left the place going to our home. Whilst on our way going home, we started quarrelling again until I strangled her, overpowered her, took a mirror which was in her purse and struck her several times with it on the face and nose until she died. I got the mind to rape her after she died. I then left and informed her sister, Mai Evernice of what had happened. I then ran away into the bush and I was arrested the following day. That is what happened.” That explanation does not raise self-defence. He attacked the deceased from anger after suspecting the deceased of having a love affair with someone. [30] His indication to the police he explained how he dragged the deceased off the road to the point he strangled her. He did not mention any attack from the deceased. The closest the deceased did was to resist the attack, of which the accused said he overpowered her. After strangling her, as if that was not enough he took a mirror from her handbag which he used to stab her near the left eye as well as the left nostril. The wounds were observed and recorded on the post mortem report. [31] He also admitted that two children passed by while he was assaulting the deceased. [32] Surprising in his defence outline he denied the presence of the children. He raised self-defence. [33] In our view the accused did not act in self-defence at all. The two witnesses who gave evidence did not see the deceased attack the accused. The accused also confirmed so in his warned and cautioned. [34] His explanation of self-defence is a blatant misrepresentation of facts. The accused was the bitter partner who suspected infidelity on the part of the deceased. The probabilities are that he is the one who attacked the deceased to settle scores. The deceased HCC24/24 HCCR1609/23 had no reason to attack the accused who according to the juvenile witnesses was taller and sturdier than the deceased. [35] There was no self-defence in this case. The accused was driven by uncontrolled anger which is a common feature in these crimes of passion. The accused strangled the deceased which led to her death. He was not satiated, he made sure that the deceased felt all the pain that a body can absorb, and he took a mirror and stabbed her. [36] We cannot say that the accused had the actual intention to cause the death of the deceased. He did not set out to cause the death, he had already taken some beer and obviously intended to punish the deceased for her infidelity. We have no doubt that accused foresaw the possibility of death but was reckless whether or not death manifested. [37] Accordingly, accused is found guilty of murder with constructive intention. Sentence [38] In passing sentence the court will endeavour to strike a balance of the competing interests taking into account, inter alia, the seriousness of the offence, the accused’s personal circumstances and the vested interests of society. This is often referred to as the triad in S v Zinn 1969 (2) SA 537 (A). The imposing of sentence on an offender, therefore of necessity, requires an evaluative and objective analysis of a number of difficult and differing factors. [39] Deterrence and rehabilitation are important factors that fall to be considered in evaluating the appropriate sentence to be imposed. However deterrence seems to pale in the shadow of a serious offence such as murder. Retribution takes precedence as society must be protected. [40] The court must consider the degree and extent of the violence that accompanied the murder, the character of the victim and the after effects of the crime. See S v Mudyiwayana . In this case the State submitted that the murder was committed in aggravating circumstances. The murder was accompanied by torture and mutilation as provided in s47 (2) (c) of the Criminal Code. The accused strangled the deceased and stabbed her. He also intended to rape her. He removed her pants and lifted her clothes and her private parts were exposed. HCC24/24 HCCR1609/23 [41]We comment in passing that there was no evidence of rape. Had the Doctor examined the deceased the results would have assisted the court. Nothing much can be read from his mere intentions. [42] We do not think that the murder was committed in aggravating circumstances as submitted by the State. Mutilation and torture has a deeper meaning of which includes but not limited to scourging, beheading, burning, hanging, drowning, quartering, the cutting off of hands and ears, and the breaking of body parts while the person is still alive or dead. [43] The accused was married to the deceased. This is domestic violence and such cases have continued to rise unabated. A husband and wife is a union where each party must be safe and feel protected. However when the union becomes the centre of murder it ceases to be the comfort space that it is expected to be. Spouses should be open minded, once one spouse is unfaithful there is always a choice to either walk away from the toxic relationship or live with it. Violence has never been an answer. The sentence must reflect society’s abhorrence of such cases. [44] We totally agree with the sentiments expressed in Sv Tevedzai HH206/18 cited by the State that murders committed in the domestic set up must be treated as murder committed in aggravating circumstances. In that case the murder took place in the home in the presence of the couple’s children. The deceased was subjected to horrendous assaults and the court settled for 35 years imprisonment [45] Just like most of the cases that courts deal with, the man accused would always blame the deceased wife for her ‘sluttish conduct,’ that in our view is no justification for taking a life. In this case the accused treated the deceased’s body despicably, to remove her pants, lifting her clothes exposing her private parts were unnecessary acts , which reflect cruelty. This was by the road for any passerby to see if they cared to. [46] The accused is a first offender aged 27 years. He is fairly young. However his youthfulness cannot be treated as mitigatory. In Sibanda v The State SC 39/14 the court held that youthfulness must be considered in the context of the offence. The court must consider if the offence was committed or influenced by the accused’s youthfulness. HCC24/24 HCCR1609/23 [47] Pre-trial incarceration is highly mitigatory the accused spent 10 months in custody which is a reasonable period considering that the accused’s matter was investigated and tried in less than a year. [48] The accused was brutal to his wife. By strangling the deceased the accused exhibited some callous conduct. He obviously watched her suffering, scream, try to breathe while she tried to free herself until she passed out. As if that was not enough he treated the deceased’s body with disdain. The appropriate sentence in the circumstances is as follows, 20 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners. Murisi and Associates, the Accused’s Legal Practitioners.