S v Khumalo (47 of 2024) [2024] ZWCHHC 47 (21 May 2024)

1 HCC 47/24 HCCR 421/24 THE STATE Versus FAITHFULLY KHUMALO HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 21 May 2024 Assessors: Mr. Mutombwa Mr. Mutayiwa Criminal Trial Mr. N. A. Sibesha, for the State Ms. L. Ndlovu, for the accused BACHI MZAWAZI J: Initially the accused, Faithfully Khumalo had been jointly charged with her husband Fredrick Mucharaga, on the charge of murdering her eleven-year- old son, Anele Khumalo. The husband is reportedly critically ill and bedridden. He therefore, was not able to stand trial. An application in terms of s190 of the Criminal Procedure Evidence and Reform Act Chapter 9:07, to amend pleadings and file those reflecting only the accused was made and granted. She was charged with murder as defined in s47 (1) of the Criminal Law Codification and Reform Act Chapter 9:23. She pleaded not guilty to the charge. Brief Facts The accused person had a son, the deceased, Anele Khumalo out of wedlock. The biological father of the child, disowned the pregnancy and abandoned the accused when she was two months pregnant. When her son was six years, she met and married her co-accused, Fredrick Mucharaga, an older man with grown up children. She moved in, with her new husband and within a space of five years to the time of the murder, had two other minor children. It is alleged that the deceased was habitually troublesome landing him into trouble at home. It became an established pattern that each time the young boy, aged eleven years, would disappear from home for more than two days each time he committed some petty boyish offences. On this occasion it is stated that the deceased had damaged the family HCC 47/24 HCCR 421/24 television set and deserted into the bush as the norm. He then came back on the 9 th of August 2023, firstly around 6pm and later in the evening. When he came for the second time both his parents had returned from their brick moulding occupation. The accused person‟s husband, the deceased‟s step father then interrogated the deceased on the issue of the broken television which he owned up. However, the two adults decided to punish him for both the television set damage and the two day absence from home without leave. The punishment took the form of severe, persistent assaults all over the body with a fan belt. The child was beaten to the point that he was silenced by death. Initially he had been screaming and pleading for mercy to no avail. Defence Case In her defence, the accused person stated that she sanctioned the assaults as a form of reprimand but did not partake in the assault or foresee that death will ensue as a result. She stated that it was her husband who did the beating at her behest. She is the one who supplied the fan belt. Her defence in court prevaricated. She first stated that the child was beaten in her presence whilst she went about her daily home chores in the same room. She then shifted goal posts and stated that the deceased was assaulted in their living room whilst she was in her bedroom with her other minor children. She did not deny hearing the deceased pleading mercifully whilst being hit mercilessly by her husband, as she alleged. She maintained that she was not startled by the piercing screams of the deceased which were heard by a neighbour residing hundred kilometres away. However, during cross examination she was asked on how the deceased ended having head injuries when only a fan belt was being used? Her response was that she discovered the head injuries when she was examining the deceased‟s motionless body. In her words she asked her husband, „How about these head injuries?‟, upon which the husband is said to have told her that the deceased had bumped onto a sofa. She denied lying and concealing to her neighbours and the police, the actual cause of her son‟s death, the deceased. When asked the nature of the offences that earned the eleven year old deceased the name and reputation of a delinquent, the accused said, these were petty thefts that led him to stray from home each time they were committed. The accused person motivated for an acquittal on the basis that no one had seen her hitting the deceased or link her to the offence. HCC 47/24 HCCR 421/24 The State Case The State case opened by the production of documentary evidence tendered unopposed in terms of the relevant sections in the Criminal Procedure and Evidence Act Chapter 9:07. These included the autopsy report, the confirmed warned and cautioned statement, sketch plan and indications, as well as the mortuary attendant affidavits. Of the eleven lined up State witnesses, only two were called to testify in open court. The implication is that the rest of the evidence from the other nine witness was admitted “voetspoots”, as is. It is uncontested. First State witness Ottis Mucharaga, the son of the accused‟s husband was the first to give evidence. On the day in question, the deceased had not been home for two days. When he arrived around 8pm to 9pm he had already retired to bed with his wife. He says he heard the child screaming for mercy and could hear that he was being assaulted. The deceased interchangeably would plead with the father not to continue assaulting him saying “Baba Baba zvakwana” “Daddy, daddy that it is enough”. The witnesses stated that, the deceased would then also plead with his mother the accused, calling her “Mom it is enough‟. From the witness‟s perspective both the accused and the father were taking turns to assault the child. His evidence was to the effect that he was present and in the same house when the deceased was being assaulted. He confirmed that the little boy was naughty and that after courting trouble he would run away from home for a number of days. It was his evidence that the assault took place in his parents bedroom, as opposed to the living room in contrast to the accused‟s version. He also noted that the assaults on the boy were not a new phenomenon but on this night he heard the boy interchangeably pleading for mercy from both parents. He testified that from his interpretation of what he heard, the accused and her husband were taking turns to beat the deceased. He told the court that his conclusions were confirmed as he later heard the two culprits blame shifting in his presence after the child had passed. He said the assaults took a considerable period until everything went quiet. He also heard thudding against the wall during the beatings. After everything went quiet, the accused person knocked at his bedroom door almost an hour later to inform him of the death of the deceased. When he left his room HCC 47/24 HCCR 421/24 into the living room he saw a trail of water mixed with blood. It was his evidence that both the accused and her husband, his father did not show any signs of grief or remorse. In actual fact, he related they were roping him into their already formulated plan to say that the child came home with head injuries and fell down to his death. Ottis Mucharaga, told the court that he objected ever to being made part of the evil scheme as he feared the avenging spirits of the deceased who was not of the family lineage. This witness also informed the court that the two accused persons had engineered the falsehoods in order to convince the neighbours to sanitise the death and assist with the facilitation of a speedy burial. He also revealed that, Fredrick Mucharaga left the scene to call neighbours whom he knew would then inform the village head to give effect to their quick burial plan. Upon cross examination, this witness stated that he is aware that children or humans in general, when in trouble or being assaulted they call upon their mother. As such, the calls he heard pertaining to the mother do not indicate that the mother partook in the assaults in response, this witness maintained that the child only called the mother saying,‟ Mama, it‟s enough, mama, it‟s enough‟, when it was the mother‟s turn to beat him. He said the deceased also called „Dad, dad”, when it was the father beating him. The first witness told the court at nor given time did he see the accused wailing, weeping or mourning for the loss of her son. Although this witness did not see with his own eyes what was actually transpiring in the bedroom where the deceased was assaulted to death, his evidence was very honest and credible. He was in the same house. He could not mistake what he heard. He said he had a cordial relationship with his stepmother and had no reason to lie or exaggerate. The court believed him. Asked as to why he did not intervene to stop the onslaught. The witness said this was the order of the day at the homestead. The child was always being assaulted for petty crimes. The Second State witness The second witness was Memory Msili. She stayed about one hundred meters from the accused‟s house. She stated that on the night in question she was awakened by Fredrick Mucharaga after 9pm. She had already retired to bed in the company of her husband. They were both summoned to the accused person‟s house. They enquired whether everything was alright but were just informed to accompany Fredrick. HCC 47/24 HCCR 421/24 They both dove- tailed Freddy to his homestead and into his living room. He had a lit torch. He showed them the motionless body of the eleven-year-old boy. He then lifted the child‟s hand twice. It dropped back after each up-lift. The witness then attested that, Freddy, informed them that the deceased came home already injured and fell down to his death. The same story was repeated by the accused when the witness went inside their bedroom to commiserate with her. This was after an hour or two after the beatings had stopped as related by the first witness. So if there was initial shock and numbness then surely it should have worn away. In addition, the presence of a familiar face always triggers wailing in women who would have innocently lost their loved ones. Memory noticed that the accused was not weeping or shedding any tears nor crying or mourning. She was laid back, as if frozen or afraid of what they had done. It is this witness who then notified the village head and his village policeman. They all went back to the homestead in the company of their spouses and confirmed the death of the boy. Thereafter the national police was called. Memory Msili, a mature, dignified woman in appearance did not stammer or falter. She attested that the deceased had a history of absenting himself from home after committing petty boys‟ offences. She added that the child would spend days in the bush alone other than face the wrath of his parents and the impending penalties. She also said that she was close to the accused and they used to chat regularly and amicably with her as neighbours. Ishmael Kuzvarwa‟s uncontested evidence corroborated that of Mucharaga and Memory Msili. He was a neighbour to the accused. On the 9th of August 2023, he was seated when he heard, Anele Khumalo the deceased screaming „Baba Baba‟. He recognized the voice. His testimony was to the effect that the crying and shouting persisted for some time and it was followed by dead silence. After he had retired to bed about two hours, he then received a call from the second witness informing him of the deceased „s death. The rest of the civilian evidence tallied with that of those who testified orally. The evidence of the investigating officer and two of the police details involved in the matter or corroborated Memory Msili‟s evidence that the accused upon being interviewed had stated that the deceased came home crying with a visible head wound, fell down and died soon after. Angeline Gatsi is the one who was the first to interrogated the accused. All the police officers did not see the accused crying or mourning her son‟s death. From the facts and the evidence so far produced, the court has to determine the following issues: First and foremost, HCC 47/24 HCCR 421/24 1. Whether or not the State managed to prove beyond a reasonable doubt that, a. Accused assaulted the deceased? or b. She acted in common purpose with her co-accused not yet tried, to bring about the death of the deceased? In casu, there is no eye witness to the offence. No one saw the accused person assaulting the deceased. We have evidence of a witness who based his assumptions on what he heard from another room. We thus have no direct evidence on that aspect but indirect evidence. However, it is well settled that courts can convict on circumstantial evidence but it should pass the tests set out in the R v Blom 1939 AD and Muyanga v The State HH 79/13. Essentially, circumstantial evidence is all about drawing inferences on the guilt or innocence of the accused. These inferences are drawn from and must be consistent with proved facts. Thus, the first step is to identify and list all the proved facts. The inference can then be drawn from those proved facts. Merriam Webster Dictionary defines an inference as a conclusion or opinion that is formed from known facts or evidence by using reasoning. That is, in common parlance, a logical conclusion arrived at from a set of facts and evidence. In legal parlance, the facts have to be proved facts. In R v Blom, WATERMEYER JA, underscored two approaches to circumstantial evidence in a criminal trial that: 1. The inference sought to be drawn must be consistent with all the proved facts. If it is not then the inference cannot be drawn. 2. The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.” See, Hoffman and Zeffert, The South African Law of Evidence, third edition, Butterworths, at pp 589-90. In the case of Muyanga v S, HH79/13 the court highlighted that: “But in a circumstantial case no individual fact can prove the guilt of the accused. Where the state‟s case depends either wholly or in part on circumstantial evidence, then the court is asked reason in a staged approach. The state first asks the court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused‟‟ The following tests were outlined in the above case Muyanga v The State where it was further stated that: “The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: HCC 47/24 HCCR 421/24 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and 4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation by any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. See, S v Shoniwa 1987 (1) 215 (SC) and the cases therein cited. In the current case, the proved facts are that, The deceased who was the accused person‟s out of wedlock son died from multiple injuries on his head, abdominal cavity and all over the body. The post mortem report disclosed fresh head injuries on both sides of the head, back and front. Old forehead wounds were also noted. The cause of death was listed as subdural haemorrhage and stomach haemorrhage It is the accused who instructed her husband to assault the deceased. She supplied the murder weapon of choice, a fan belt. She was in the room whilst the deceased was being beaten to death, she never intervened, come to the aid of the deceased or order the assaults to stop. She showed no emotions of loss, hours after the death of the child. She lied to Memory Msili that the deceased had come home from his two days with a bleeding head injury, collapsed and died. After the fatal assaults she again concealed the fan belt in her bedroom only to reveal it when making indications to the police. The deceased was always running away to stay in the bush after committing minor offences only to return a couple of days later. From these facts what can be logically deduced is that the accused did actively take part in the assault of the deceased. Judging from her lack of emotion, when the child being assaulted with such a dangerous weapon, the accused cannot be absolved from actually using it to assault the child. We have already accepted the evidence of Ottis Mucharaga. He had no reason to lie. He said he heard the accused and his own father, in his face, right in front of him blaming each other of using excessive force and throwing the deceased against the wall. This was at the stage the two were plotting to come up with a defence that the child came home already seriously injured and died. This in our considered view is direct evidence that the accused was also involved in the fatal and tragic assault. HCC 47/24 HCCR 421/24 Accused herself proved not to be reliable. She put up a poor show in the witness stand and her adduced evidence. She gave contrasting evidence that she was in the room when the child was being assaulted. Later on, she said she was in the other room, which happened to be her bedroom. She did not challenge the testimony by Ottis that all the assaults took place in the bedroom. She failed to dispute what Memory said in court about her falsehoods as to the cause of the deceased‟s death. In addition, even if we may have erred in coming to that conclusion, there is also sufficient and direct and indirect evidence to support a finding that the accused acted in common purpose with her co-perpetrator who is not before us. In her confirmed warned and cautioned statement, she stated that she is the one who gave the other accused the fan belt to discipline the deceased for deeds he had done, breaking the television and staying away from home thereafter. Whilst chastising a child is permissible in terms of the law, it has to be moderate. Parents are allowed to use corporal punishment to correct a wayward delinquent child. They however, need not go overboard or exceed the boundaries of mere punishment. Factors that determine punishment within moderate limits are in our view: a. The nature or type of weapon that has been used weighed against, b. The age of the child. c. The area of the body where the blows are directed. d. The amount of force used and the duration of time in which the corporal punishment was administered. e. The offence or misfeasance or felony committed by the child. f. Evidence of previous disciplinary measures other than corporal punishment This should be examined against the background of s241 (2) of the Criminal Law Codification and Reform Act [Chapter 9:23]. This section permits a parent or a guardian to administer moderate punishment for disciplinary purposes upon his or her minor child or ward. Section 241(6) outlines factors to be considered by a court in deciding whether the corporal punishment was administered is moderate in any particular case. These are as follows: a. The nature of the punishment and any instrument used to administer it; and b. The degree of force with which the punishment was administered, and c. The reason for the administration of the punishment. HCC 47/24 HCCR 421/24 d. The age, physical condition and sex of the person upon which it was admissible. e. Any social attitude towards the discipline of a child which are practiced in the community where the minor person was living. In this case, the deceased was a mere eleven year old child. He had simply damaged a house hold gadget that was reparable and replaceable. Selecting a fan belt, whose characteristic, strength, resilience, malleability, durability is specifically made to hold together the engine components of a motor vehicle and specially made to withstand that pressure cannot be said to be an instrument suitable for reprimanding a mere child. Synonymous with this age group and sex is the adventurous and explorative nature of their growing minds and journeys of discovery. Boys‟ pranks to draw attention are also part and parcel of this age group. This court took judicious notice that there was a disturbing pattern of a history where the boy could rather face the dangers of a forest rather than face the disciplinary measures taken against him each time he erred. Common sense and logic directs that there was rampant child abuse and domestic violence against this little boy. The frequency and repetitive nature of the absence from home without leave attendant to some misdemeanour indicates that the child was crying out for help. The accused could not even detail the nature of misfeasance that made her child to be termed naughty. She only managed to state that they were minor thefts. Again, the post-mortem report depicts assaults all over the body, on the front and back of the head, chest and stomach. The pictures drawn on the autopsy report pointed to even old forehead wound. There was a depression on the forehead. Paragraph 16 of the report spoke to multiple injuries to the chest wall which was depressed. The cause of death was haemorrhagic shock due to blunt abdominal trauma and subdural haemorrhage. Subdural haemorrhage is a rapidly developing brain bleeding, often caused by a significant head injury like an accident. If we place this aspect in the context of the first witness‟s evidence that the child was being thrown against the wall then it ceases to be the fan belt alone that inflicted the fatal injuries. Surely, these extensive injuries speak to excessive force beyond the bounds of chastisement. They also reflect excessive force on a small body directed at vital body parts housing crucial body organs, such as the brain and others. To even think that a mother would HCC 47/24 HCCR 421/24 stand by and do nothing to protect her own child with whom she has a legal duty to protect when the child received such fatal blows is mind blowing. More so, when the child pleaded mercifully, his screams piercing the evening serenity to a neighbour‟s ears hundred metres away. In Tungamirai Madzokere and Others v The State SC 71/21 justice Makarau CCJ, outlined three cardinal rules to establish the doctrine of common purpose as envisaged in s196 A of the Criminal law Code. The honourable judge highlighted that, principally, the State has to lead evidence tending to prove, i. ii. iii. Firstly, that the appellants knowingly associated with the person who killed the deceased, . secondly that such association was with the intention that each or any of 11 them would kill or be prepared to kill the deceased and, thirdly, that the appellants were present with the actual perpetrator when the fatal blow was delivered. Section 196A reads: Liability of co-perpetrators 1. If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the co- perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. 2. The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they- a. were present at or in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or b. were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or c. engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged.” The cumulative effect of all the above observations point to the guilt of the accused both as an active participant and an accomplice. The State has managed to prove beyond a reasonable doubt that factually, the accused committed the offence both directly and in common purpose with her then husband. It can never be emphasised that the onus to prove a person‟s guilty beyond a reasonable doubt lies on the State in Criminal matters. The accused has no duty to prove her innocence. All she needs to do is to lay out a defence. If the court finds the defence probable HCC 47/24 HCCR 421/24 then the accused person is entitled to an acquittal. This was amplified in the case of R v Difford AD 1937. The accused‟s defence in this regard is improbable and is disregarded as observed in detail above. Section 18(1) of the Criminal Law Codification and Reform Act Chapter 9:23, also provides that no person shall be guilty of a crime in terms of the code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt. The State has managed to do so. What then remains to be determined is whether the accused persons had actual or legal intention to commit murder or were negligent? In that regard, section 47 of the Criminal Law Code states, 47(1) Murder 1. Any person who causes the death of another person – i. intending to kill the other person; or ii. realizing that there is a real risk or possibility that his or her conduct may cause death; and continues to engage in that conduct despite the risk or possibility shall be guilty of murder. The Supreme Court in the case of Dube v The State SC 83/22, has this to say, “It is trite that there are four basic essential elements that must be proved to sustain a conviction of murder. These are: - (i) causing death of (ii) another human being; (iii) unlawfully; and (iv) intentionally.” Disposition The accused was the legal guardian of the eleven year old victim, now deceased. She had a legal duty to protect him. She had the powers to stop the assaults before degenerating into murder. She initiated the beatings. She selected the choice of instrument to be used, rather the murder weapon. She turned a deaf ear to the child‟s screams in pain and for mercy. Though there may have been no direct eye witness who can say they saw her participating in the assaults, the totality of proved factors points to her guilty other than her innocence. Her connivance with the co-accused and husband to lie about the cause of death of the deceased make her culpable as has already been alluded to. In aggregate, her conduct, omissions and misrepresentations against the bedrock of the evidence adduced point to a person who cannot be absolved from one having the intention to kill. In the case of State v Kurongera HH 267/17 Hungwe J, stated that; HCC 47/24 HCCR 421/24 “Where there is no expression of such intent, the law can infer such intention from the accused‟s conduct and circumstances surrounding the commission of the offence and conclude that such an intent existed in accused‟s mind” In State v Wairos, HMT 57/21, the court re-affirmed the position the law is that that; “It is now settled law that of aspect of intention can safely be inferred from the nature of the weapon used, the part of the body, the fatal wound was inflicted, the number of blows intensity and viciousness of the attack. A finding on murder with actual intention is however unsustainable in the circumstances of this case. The State did not manage to prove beyond a reasonable doubt that this was a well-planned and orchestrated killing. The State has managed to prove, nonetheless, murder with legal intent. The graphic detail of the injuries and weapons used, the duration and where the blows were directed all point to the fact that the accused must have realized that there is a real risk or possibility that her conduct may cause death and continues to engage in that conduct despite the risk or possibility. In the State v Mungwanda SC19/2002, it was highlighted that: “On the basis of the above it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond a reasonable doubt that; Either the accused desired to bring about the death of his victim and succeeded in completing his purpose, or while pursing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless…on the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being subsequently certain, making this a question of degree more than anything else). In the test of culpable homicide, the test (s) be ought to, as a reasonable man have foreseen the death of the deceased.” The accused person is accordingly found guilty of murder with constructive intent. In sentencing the accused, the facts are by and large common cause. The court has taken into account submissions made both in mitigation and aggravation. It has also synthesized the victim impact statement alongside the sentencing report. All these have been weighed against the legal principles governing sentencing. That is the interests of society and administration of justice, the interests of the liberty of the accused and those of the victim. See, S v Gara HCC 02/2024 sentencing judgment by this court. The accused is a young mother in her mid- thirties. She has three minor children. She has lost a child through her own conduct. She will live to bear the brunt of having shed human blood as well as, societal stigmatisation. In aggravation however, the victim falls in HCC 47/24 HCCR 421/24 the category of vulnerable people. The deceased looked up to the accused for love and protection which he was denied leading to his untimely death. Society shuns to see children from past relations being treated like outsiders or ill-treated for the sack of pleasing the new marital set-up. Life is sacrosanct. Such young life was terminated in the bud. The presumptive sentence for murder with constructive intent is 20 years. However, justice must be tampered with mercy. Each case stands on its own merits. The degree of the accused „s moral blameworthiness, being the parent and guardian measured against, the extent of the injuries, is at higher end. The accused person is sentenced to 15 years imprisonment. See S v Mukunguma HMT32/2020. S v Pedzisai HMA 60/22. National Prosecuting Authority for the State. W. O. M. Simango & Associates, for the accused.