The defence of provocation is provided for in Section 239 of the Code. It provides as follows:

"(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realization referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation,

(a) He or she does not have the intention or realization referred to in section forty-seven: or

(b) He or she has the intention or realization referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that:

(a) He or she did have the intention or realization referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances to lose his or her self-control,

The accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight."

Provocation can only be a partial defence to the crime of murder. It reduces murder to culpable homicide. It does so if the accused acts after being provoked, and causes death, with the intention or realization referred to in section forty-seven.

Section 47(1)(a) and (b) of the Code provides for the intention required for one to be convicted of murder as follows:

"(1) Any person who causes the death of another person,

(a) Intending to kill the other person; or

(b) 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 realization of that possibility;

shall be guilty of murder."

The accused must, therefore, intend to kill the deceased, or realize the presence of the real risk or possibility that his conduct may cause the deceased's death but nevertheless continues to engage in that conduct, despite the realization of that possibility.

In this case, counsel for the accused submitted that the accused was severely provoked, as a result he lost control of himself as he blacked out. She submitted that the accused must be found guilty of a culpable homicide instead.

The accused's defence was that on the day in question he had an altercation with the deceased around 9pm concerning her infidelity. The deceased had previously been found with cigarettes she could not satisfactorily account for. The deceased then confessed that their child was not sired by the accused.  This incensed the accused as the deceased further told him that she had falsely accused him of having bewitched her. This accusation had previously led the accused to take the deceased for treatment. The deceased, in the process, further told him that she had, in fact, had a Depo-Provera injection and was, in addition, taking some family planning tablets.

As a result of this provocation, the deceased took a stick from behind the door with which he assaulted the deceased. The deceased managed to fight back as she was bigger than the accused. The deceased, by then, was armed with an axe which the accused tried to wrestle from her. As they grappled, the accused turned the axe on the deceased and he has no recollection of how she got injured. He only recall's seeing the deceased sprawled on the bedroom floor in their bedroom. In a state of shock, the accused tied the deceased's limbs with a rope in a bid to straighten them as they had been broken.  Afterwards, the accused reported the incident to his brother's wife. From there, he followed a footpath that led to his late parents' home and discarded the axe. He then went to his in-laws home where he attempted to commit suicide by ingesting poison.

Coming to the defence of provocation, the first thing to note is that by virtue of section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provocation is not a complete defence. The provision in question states that-

“Except as provided in section two hundred and thirty nine, and subject to any other enactment, provocation shall not be a defence to a crime but the court may regard it as mitigatory when assessing the sentence to be imposed for the crime.”

On the other hand, section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that:-

“(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realization referred to in section forty seven, the person shall be guilty of culpable homicide if, as a result of the provocation-

(a) He or she does not have the intention or realization referred to in section forty-seven; or

(b) He or she has the intention or realization referred to in section forty-seven and has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

(2) For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that -

(a) He or she did have the intention or realization referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty eight.”

In his Commentary on the Criminal Law (Codification and Reform) Act PROFESSOR G. FELTOE had this to say-

“Provocation can be partial defence to a charge of murder and it is not a defence to any other crime, although it can be a mitigatory factor. (Previously, provocation could also have been a partial defence to assault with intent to do grievous bodily harm. This no longer applies because the court has merged together what used to be separate crimes of common assault and assault with intent to do grievous bodily harm).

In other cases, other than murder, the defence of provocation operates merely to mitigate sentence.

In murder cases there is a two-stage approach. The first stage is to decide whether X had intention to kill when he or she reacted to the provocation. If X did not have intention to kill, X will not be convicted of murder but only of culpable homicide. If X had intention to kill, then the court will proceed to the second stage which is to decide whether X lost his or her self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If X did lose his or her self-control and the reasonable person would have done likewise, X will have a partial defence and will be found guilty of culpable homicide and not murder. (In South Africa, on the other hand, if X killed intentionally, X will be found guilty of murder and the provocation will only act in mitigation of sentence).”

This is the approach that was adopted in S v Tenganyika 1958 R&N 228 (FSC) and S v Nangani 1982 (1) ZLR 150 (SC). S v Nangani 1982 (1) ZLR 150 (SC), which has a closer bearing to the present case, the appellant and the deceased had lived together for two years and a child had been born from the union. They subsequently separated. When the appellant went to look for the deceased he found her sharing a blanket with a man outside the hut. When the appellant asked who the man was, the deceased whispered something to the man who then ran away. The appellant pursued the man and returned to where he had left the deceased. On his way back he met the deceased who started to run away. The appellant, who was armed with a rifle, then shot and killed the deceased. The appellant was convicted of murder with no extenuating circumstances. The conviction was set aside on appeal and substituted with culpable homicide. This is what FIELDSEND CJ had to say with regard to the defence of provocation..,-

“In Tenganyika v R (supra) the Federal Supreme Court, albeit to some extent obiter, considered a different approach to the problem, perhaps best summarized at page 245 of BURCHELL and HUNT as follows-

“Where the charge is one of murder, and there is evidence of provocation, it was held that two separate inquiries must be made. First, was intention to kill present? In making this inquiry, account must be taken of all the facts – provocation, intoxication, and any other eccentricity or abnormality the accused may have had. And since the test for intention is subjective, at this stage provocation will be considered subjectively. If the court is left in doubt as to whether the intention to kill was present, the accused could, at most, be convicted of culpable homicide. On the other hand, if the court is satisfied that the intent to kill was proved, the Federal Supreme Court took the view that a second inquiry must be made, namely, whether the “provocation which the accused received was sufficient to warrant a verdict of culpable homicide despite the fact that the killing was intentional.” On this point, TREDGOLD CJ held the test to be objective 'whether the accused was so provoked that, in the circumstances, a reasonable man would have lost his self-control.'”

The learned CHIEF JUSTICE did not, of course, say that where an intention to kill has been established an accused can escape conviction for murder by showing merely that in the circumstances a reasonable man would have lost his self-control. Clearly, there would have to be some evidence (leaving aside the question of onus) that the accused himself lost his self-control. As he said of p237-

“…, to suggest that provocation is only a defence when it excludes the intention to kill is to narrow its limits unwarrantable…, it is not difficult to envisage circumstances in which it might properly be held that the accused had been provoked beyond endurance and to a point when any ordinary person would have been deprived of his self-control and acted in the same manner.”

The question is what is meant by loss of self-control, and how that may differ from a lack of intention are separate matters. As LORD DIPLOCK indicated in Phillips v R (1969) 53 Cr App R 132…,-

“A loss self-control is not absolute but is a matter of degree: there are many intermediate stages between icy detachment and going beserk. And as SCHREINER JA said in Krull's case (supra) at pages 398-99:

'That acts done after a man has lost control of himself may still, in a sense, be said to be intended is no doubt true. But also, it may fairly be, and is, said that such acts are not really intended…,. Whether one says that a provoked man loses the power of self–control or becomes unable to form the intention to kill seems to me to be substantially a question of the choice of words. Either form is probably only a roughly approximate description of the actual mental processes. Legal systems can only attempt by one approach or another to give effect to the basic idea which is that the provoked person may have been so upset that the mental element requisite for murder may not have been present.'

Tenganyika's case (supra) has been followed in this country despite criticism of it in Krull's case (supra), see for example R v Bureke 1959 (2) R&N 353 (FSC); R v Majhaye 1965 RLR 106. We are not bound by these decisions – see section 24(2) of the Supreme Court Act No.28 of 1981 – but unless there is a good reason for departing from them we would not want to give a new direction to the law at this stage. Practice Direction (Precedent) 1981(4) SA 1981.

There are arguments, both of principle and expediency, in favour of each of the two approaches. The South African approach follows the logical and systematic application of the strict law that an intentional killing of another person is murder unless there is a legitimate excuse, such as a justifiable homicide (R v Koning 1953 (3) SA 220 (T) or self-defence (R v Mathlan 1958 (1) SA 350 (AD). To act under provocation, it is said, is not to act with any justification. As SCHREINER JA put it in Krull's case (supra) at p399C:

'In self–defence, the motive is fear, which, from the law's view point, is a better motive than anger, which operates in provocation.'

Provocation may be an extenuating circumstance and a mitigating factor, but, once it is established that a person acted with intent to kill he is guilty of murder. In my view, there are two answers to this view. First, if the law recognises that provocation is an extenuating circumstance then there is no question of principle involved in recognizing it as a circumstance which may reduce murder to culpable homicide. It is only a question of the effect to be given to it. Both self-defence and duress – see S v Goliath 1972 (3) SA 1 (AD) - are now recognized as defences to murder. Either may be a complete defence or may operate to reduce murder to culpable homicide depending on the facts. But, in each case, it is accepted that what is excused or reduced is an intentional killing. There is, therefore, no anomaly in recognizing that provocation may have a similar effect, or, at least, may reduce murder to culpable homicide, even where the killing is intentional.”

The accused said she was provoked by stepping on the deceased's excrement and the deceased's remark that she had defecated by the kitchen door because she (“the accused”), had left her (“the deceased”) alone when she went to the party.

Counsel for the accused submitted that the accused should be acquitted because, she acted in a drunken state after being provoked by the deceased. He submitted that she had been provoked by stepping on the deceased's excrement, and the deceased's tugging onto her dress. He submitted that the events leading to the deceased's death were not premeditated, but a result of a drunken reaction to provocation. He referred us to the case of S v Gambanga 1998 (1) ZLR 364 (SC)…, where EBRAHIM JA said -

“A successful plea of diminished responsibility has been said to reduce a charge of murder to culpable homicide: S v Chitiyo 1987 (1) ZLR 235 (S) at 239B. This statement requires considerable qualification. It has been held in some South African cases that non-pathological criminal incapacity could constitute a complete defence: S v Kensley 1995 (1) SACR 646 (A) at 658. It has been said that:

'.., an accused person should not be held criminally responsible for an unlawful act where his failure to comprehend what he is doing is attributable not to drink alone, but to a combination of drink and other facts such as provocation and severe mental or emotional stress…,. Other factors which may contribute towards the conclusion that he failed to realise what was happening or to appreciate the unlawfulness of his act must obviously be taken into account in assessing his criminal liability. But in every case the critical question is - what evidence is there to support such a conclusion?' Per DIERMONT AJA (as he then was) in S v van Vuuren 1983 (1) SA 12 (A) at 17 G-H.”

EBRAHIM JA, at p367 C-E, further commented as follows -

“However, I have been unable to find a case where murder was reduced to culpable homicide on the basis of sane criminal incapacity. That it should be able to do so seems to me to be inconsistent with principle. 

There are numerous cases, though, where a conviction for murder was returned, the accused's state of diminished responsibility being held to reduce the accused's moral, but not his legal responsibility. See,  for example, S v Sulpisio supra; S v Sibiya 1984 (1) SA 91 (A); S v Phillips & Anor 1985 (2) SA 727 (N); S  v Taanorwa 1987 (1) ZLR 62 (S); S v Chiwambutsa 1987 (2) ZLR 59 (S); S v Laubscher supra; S v Chin'ono 1990 (1) ZLR 244 (H); S v Calitz 1990 (1) SACR 119 (A). There is nothing in the facts of the present case to take it out of the ordinary run of cases.”

Diminished responsibility due to drunkenness and provocation, according to the none statutory Roman Dutch criminal law, though capable of leading to a reduction of a murder charge to culpable homicide or an acquittal, does not, ordinarily, lead to such results, but to his or her being convicted of murder, and the drunkenness and provocation being merely mitigatory. The defence succeeded in the case of S v Wild 1990 (1) SACR A 561, referred to in the case of S v Gambanga 1998 (1) ZLR 364 (SC) where the court said –

“If, on the evidence, there is a reasonable doubt whether the accused had criminal capacity, he should be given the benefit of the doubt.”

That must have been the basis of counsel for the accused's submission that the accused in this case must be acquitted because she acted in a drunken state after being provoked by the deceased.

Submissions by counsel for the State and defence, though well-researched and argued, did not take into consideration the changes introduced to the defences of intoxication and provocation by Chapter (xiv) Part (iv) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. I, in view of the provisions of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] brought these to their attention after which I granted them an adjournment to enable them to make additional submissions on the defences referred to above as codified by the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In his further submissions, counsel for the accused relied on section 224 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides as follows -

“If a person, while in a state of voluntary intoxication, is provoked into any conduct by something which would not have provoked that person had he or she not been intoxicated, the court shall, in accordance with Part IX, regard such provocation as mitigatory when assessing the sentence.”

He submitted that the accused was provoked while drunk, and must therefore be found not guilty of murder but guilty of culpable homicide as provided by section 239(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides as follows -

“(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation;

(a) He or she does not have the intention or realisation referred to in section forty-seven; or

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

(2) For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that:

(a) He or she did have the intention or realisation referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control; the accused shall not be entitled to a partial defence in terms of subs (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

Counsel for the accused submitted that the accused was provoked by stepping on the deceased's excrement and the deceased's tugging on to her dress in circumstances which would not have provoked her if she had not been intoxicated. That far, I would agree with his application of the provisions of section 224 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to the facts of this case. He, however, went on to argue that in terms of section 239(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the accused should be found not guilty of murder but guilty of culpable homicide.

He clearly had abandoned his earlier submission based on the dicta in S v Gambanga 1998 (1) ZLR 364 (SC) that the accused should be acquitted.

This demonstrates the benefit of reading the Criminal Law (Codification and Reform) Act [Chapter 9:23] when dealing with crimes committed after the codification of our criminal law….,.

In the final analysis, counsel for the accused's reliance on section 224 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and counsel for the State's erroneous reliance on section 221(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]), which we accepted with a finding that intoxication still had an effect on the accused, leads to the same result. In both cases, intoxication is not a defence to the crime of murder but a mitigating factor to be considered in sentencing the accused for murder.

It remains for us to consider the issue of provocation.

At what stage was the accused provoked?

By his own admission, he was already so angry that he was prepared to do anything and did not care how his problem with Unite Maronga was going to be resolved before he left the bush a kilometre away in pursuit of Unite Maronga. By his own admission, albeit with tongue in cheek, as he says he was only scarring Unite Maronga, his avowed intent was to kill Unite Maronga. Hence the menacing way he chased away Taritha Ncube. He was seen rapidly walking into the homestead, determined to accomplish his avowed intent. He did not take time before he was seen landing two vicious blows on the head of the deceased. It cannot be said that Unite Maronga provoked him in the bush encounter because the accused did not tell us how she did except to say that she was a liar. Neither can it be said that the separation provoked him. He had lived with that reality for a while. In respect of the provocative words allegedly uttered by the deceased, our view is that when the accused got to the deceased's homestead, he was already in a menacing mood, he had already declared his intent to kill, and, as such, it is unlikely the deceased would have had the courage to confront him, as alleged, or to utter the words complained of. It was virtually impossible that there would have been time for the conversation to take place as Fungai Zhou says the time was very short. Whatever noise Fungai Zhou heard was associated with the imminent assault. In addition, when the events of 1^st July 2009 were still fresh in his mind, the accused gave a statement to the police on 9^th July 2009 in which he took full responsibility for what he did and gave the main reason for assaulting the deceased as the fact that the deceased had taken away his wife from him accusing him of preventing Unite Maronga from having affairs with other man.

The insult issue was secondary and was not even well-articulated.

Let me, at this stage, deal briefly with the defences raised by the accused starting with that of provocation.

In specific intent crimes, such as the crime of murder, the defence of provocation can, if properly established, act as a partial defence. See A Guide to the Criminal of Zimbabwe, 2^nd Ed. by G. FELTOE…,. In order for such a defence to succeed, the evidence must establish, beyond doubt, that the accused in this case, when he fatally assaulted the deceased on 24 March 2013, lacked the intention to kill because he was so angry due to the provocation that he did not realise his actions would result in the death of the deceased.

I must hasten to say that the evidence presented, and accepted, in this case, through Ruramisai Muzenda, showed that when the accused came into the hut where the deceased was seated and unsuspecting, the accused was firmly armed with the dibble (which turned out to be the murder weapon) which he was holding behind his back to ensure its non-detection before the assault began. Such conduct is not consistent with provocation but premeditation to commit an offence.

I have already dealt with the defence of self-defence which was built around the deceased's alleged aggressive conduct against the accused. The court made a specific finding that the evidence, as earlier on analysed, gives no room to the existence of this defence.

In passing, it occurs to me that the raising of the defence of provocation and alleging accidental stabbing at the same time makes the two explanations by the accused mutually destructive.

Let me deal with the defence of provocation at this stage.

In dealing with this defence, I am more inclined to lean on the remarks by GUBBAY JA in S v Muleya & Ors 1988 (1) ZLR 359 (SC)…, when he commented as follows:-

“The general rule of Roman Dutch Law is that a person may be so provoked or made mad by another person's behaviour that he loses control over his faculties and becomes incapable of forming the specific intent in relation to a particular offence. It is recognised that anger may be so strong as to destroy a person's “voluntarium” in a similar way as intoxication. If the accused lacked the intention necessary for the particular crime then…, he is not guilty of that offence but may be guilty of a lesser crime…,”

In Zimbabwe, the courts use a two-stage approach in determining the existence or otherwise of provocation as a defence. It is a combination of both the subjective and objective approach. The first question to be asked is:

Taking into account the alleged provocation by the accused in the circumstances narrated to us, including the alleged imbibing of 7 pints of beer, did the accused intend to kill the deceased?

Given the accused's sound recollection of almost every minute detail of what occurred on the day, we are left in no doubt in our minds that the accused must have intended to kill the deceased?

This would then force us to invoke the next rung:

Would a reasonable man placed in the position of the accused have killed the deceased?

Our position is a unanimous 'No'.

If followed to its logical conclusion, the accused's testimony suggests that he suspected that Jacob Rutanha was now having a love relationship with the deceased. He saw Jacob heading to the deceased's place and followed him. The accused cannot possibly give the impression to the court that he was provoked by the conduct of Jacob Rutanha, because, by following Jacob Rutanha, he was inviting anger upon himself and one cannot provoke a situation in order to benefit out of such self-created provocation.

By far, the majority of persons who commit offences of this nature will be reacting to anger after provocation which does not amount to a defence but strong mitigatory features.

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which the court brought to the attention of both counsel during court addresses, provides that in a murder charge where provocation is successfully pleaded it provides a partial defence. The section reads, in part, as follows:

“239. When provocation a partial defence to murder

(1)…,.

(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that –

(a) He or she did have the intention or realization referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] recognizes the defence of provocation as a partial defence if successfully pleaded.

Put simply, our law recognizes that in certain situations a person may be provoked by another person's behaviour to the extent of losing self-control over his faculties and becomes incapable of forming the specific intent to kill his victim, and, in such situation, the accused would then be found guilty of culpable homicide. But, if despite an accused being provoked he is still able to retain his intention to kill, the provocation will be taken as mitigatory. This position is clarified in section 239(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which is framed as follows:

“(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that –

(a) He or she did have the intention referred in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

The accused shall not be entitled to a partial defence…, but the court may regard the provocation as mitigatory as provided in section two hundred and thirty eight.”

The circumstances surrounding the allegations of murder are as follows;

The accused and the deceased were, at the relevant time, customary law husband and wife. They resided in premises behind Munashe Store, managed by one Loveness Beta (“Loveness”) at Ndiyadzo Business Centre, Chipinge. Prior to the date on which the events subject of the allegations occurred, the deceased had been away for about a month. So when the altercation leading to her death occurred, she had only recently returned. Their relationship was under severe strain as a result of mutual allegations of infidelity. Around 10:00h, the couple engaged in an altercation which attracted Loveness Beta, their landlord. The deceased cried out for help and Loveness Beta came to her aid. She found that the deceased had already been badly injured. It appeared that she had been stabbed by the accused who wielded a spear. The deceased was rushed to Ngorima Clinic and later transferred to Mutare General Hospital where she subsequently died.

In denying the charge, the accused stated, in his Defence Outline, that their four year marriage had been shaken by various acts of infidelity on the deceased's part. Despite efforts to talk these over, the infidelity streak in his customary law wife continued to haunt their marriage. What had led to this latest altercation was the following. By September 2014, they had, as a couple, saved $4,000= with which they intended to build a home. He had, that month, travelled to Beitbridge on business. When he called his wife on her mobile number, she had told him that she had left their home and proceeded to her maiden home. Upon further enquiry with his wife's relatives, he learnt that, in fact, she was in Chiredzi where she was spending time with another man.

By the time he returned home, on 22 October 2014, the deceased was still not at home although she had undertaken to be home. She only returned home on the eve of 24 October 2014. By that date, he had information that the deceased was planning to build a home with another man. He therefore asked about their US$4,000= savings. She avoided the subject and prevaricated on the issue raising his suspicions higher. The next morning he asked her, again, about their savings but she rebuffed him. When he got the chance, he searched her handbag for the money. He came across concrete evidence of infidelity in the form a love letter and a photograph of a man. Before he confronted her with this evidence, he decided to seek the wise counsel of their landlord, Loveness Beta. Her advice was that it was in the interest of both of them if they separated amicably. He left Loveness Beta and went back to the deceased whom he confronted with the evidence of her infidelity. Upon being confronted, the accused says that the deceased then asked him why he had searched her bag and berated him for it. She, however, admitted having used the money to buy another piece of land.

This angered him.

He advised her that their marriage was over and that she should give him back his money and leave. He began to pack her clothes into a bag. At that point, the deceased picked up his spear and attempted to attack him. He grabbed the deceased's hand and elbow to wrestle the spear from her in an attempt to avert the attack. They struggled for the possession of the spear. In that struggle, she bit him on the hand. They both fell to the floor. In the process, he says, the deceased was accidentally stabbed. As a direct result of this accidental stabbing, when she fell onto the spear, the accused says she released her hold on the spear. He remained holding it. She, however, thereafter, went on to grab him by his private parts and pulled them. In a bid to cause her to free this grip, he then stabbed her on the arms. She relented and loosened her grip on him. The spear was now on the floor. He grabbed it to prevent her from picking it up and using it on him. He maintained that he had no intention to kill her as she was accidentally stabbed. He also maintained that he did not realise that there was a real risk that in the process of defending himself from an unlawful attack, the deceased might be fatally injured.

The evidence led from the medical doctor, Dr Matimbura, was that on 24 October 2014 she attended to a patient who had presented at a local clinic with serious injuries. She was visiting from Mutambara Mission Hospital. Upon enquiry, the doctor learnt that the patient had been stabbed by her husband. The patient bore several stab wounds and exhibited signs of severe blood loss. The doctor described the injuries as follows;

(i) She had laceration on the right forearm extending to wrist, inside the right palm and right forearm near the wrist; left upper arm, and the shoulder.

(ii) She noticed a deep penetrating wound to the abdomen through which faecal matter was drawing. This latter wound implied that the intestines had been perforated. In her view, it required severe force by a sharp object to puncture the skin as well as the stomach wall into the intestines. Draining of faecal matter into the blood stream indicated that simultaneous and rapid poisoning of the patient's blood was taking place.

The patient required a higher level of care than that which the clinic could give. She referred the deceased to Mutambara Mission Hospital for the appropriate level of care.

In her view, from her experience as a medical doctor, and going by the number of lacerations, it was highly unlikely that the injuries on the patient were sustained accidentally. In any event, when she asked the patient how she had sustained the injuries, the patient had indicated to her, as doctor, that her husband had stabbed her with a spear. At Mutambara Mission Hospital, the patient was operated upon. Unfortunately, the patient died. The post mortem report by Dr Makange, in Exhibit 6, confirmed the oral description of the injuries given by Dr Matimbura.

Crucially, the evidence led from Loveness Beta establish that on the day following the deceased's arrival the accused had approached her with a letter which tended to confirm the accused's claims of infidelity by his wife. She had advised him that a cordial separation was the best in the circumstances. The accused conceded that his wife had previously strenuously denied any allegations of infidelity. He now held, in his own hands, hard evidence of that infidelity. This had angered him beyond measure by his own admission.

In our view, these factors provide sufficient motive for the accused rather than the deceased to have been the aggressive of the two. Put differently, it is in our view, the accused who had reason to be on the offensive rather than the deceased as the accused would have us believe. In any event, the argument over the money only provides further reason for the accused to be angry with her. This court therefore finds that the State witness, Loveness Beta's, evidence is more reliable on the factual situation obtaining inside their room than the version given by the accused. This is particularly made more cogent by Loveness Beta's version as to how the accused took her advice. According to her, after she advised him to cordially separate from the deceased - the accused indicated that he would resolve the issue his own way. A few minutes later, Loveness heard the deceased shout for help.

Loveness Beta had no idea of what she was to witness shortly thereafter. She went on to say that she heard the deceased scream and shout that that she was dying. She ran to the couple's quarters and upon arrival at the couple's quarters, she saw the accused stabbing the deceased on the left shoulder with a spear. The deceased was by then bleeding from wounds inflicted earlier on. She shouted at him to stop. The deceased was in a bending position holding her right lower abdomen. She had pulled the accused outside their room. The deceased followed outside the room. When the three were outside, the accused attempted to stab the deceased again. She pushed him away. She arranged for the injured wife's evacuation to nearby Ngorima Clinic.

We have assessed the credibility of the witnesses led by the State and are satisfied by the veracity of their versions. We are satisfied that they were truthful and their versions accord with the probabilities in the matter. We find it highly unlikely that the deceased suffered multiple wounds in the manner the accused described. His version is so improbable that we are satisfied that it is false beyond doubt.

In our finding, upon a fair consideration of the facts of this matter, the accused was on this day provoked by the continued infidelity of his wife, which had been confirmed by hard evidence, as well as her decision not to share the US$4,000= which he said they had saved for the construction of their own home. In the heat of the moment, he had attacked her by stabbing her with the spear on the abdomen. This would have led the deceased to scream for help. When he pulled out the spear, she must have defensively tried to hold the spear hence the injury to her palm and wrist. He was found by Loveness Beta delivering the left shoulder stab wound. He attempted to stab her even after Loveness's intervention.

The question which arises is whether, in those circumstances, the accused can be said to have lost self-control and acted in the heat of passion in stabbing her. In other words, can a defence of lack of intention to kill be upheld on the facts? Can this court uphold his partial defence of provocation to the charge of murder?

Generally, provocation is not a defence to a crime. In certain circumstances, however, the law recognises that situations may arise in which a person is virtually pushed to act in a manner constituting a crime because the amount of provocation he would have been subjected to literally prevents him from exercising control over his faculties. In other words, in order to provide or act as a partial defence, the provocation would have resulted in the accused losing self-control. Short of that it constitutes no defence.

Section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] codifies the common law position thus:-

“239 When provocation a partial defence to murder

(1) If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realisation referred to in section forty-seven, the person shall be guilty of culpable homicide if, as a result of the provocation -

(a) He or she does not have the intention or realisation referred to in section forty-seven; or

(b) He or she has the intention or realisation referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.

[Subsection amended by section 31 of Act 9 of 2006.]

(2) For the avoidance of doubt, it is declared that if a court finds that a person accused of murder was provoked but that -

(a) He or she did have the intention or realisation referred to in section forty-seven; or

(b) The provocation was not sufficient to make a reasonable person in the accused's position and circumstances lose his or her self-control;

The accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

In S v Nangani 1982 (1) ZLR 150 (SC), the court confirmed the common law position that provocation can, in appropriate circumstances, have the effect of excusing or reducing an intentional killing at least to the point of reducing murder to culpable homicide - even where the killing is intentional. The court, however, pointed out that in order to meet this threshold, the provocation must be such as to have actually caused the accused to have lost self-control, though not necessarily his capacity to intent to kill. It added that it must also be such that in the circumstances, an ordinary man would have lost his self-control and acted in the manner the accused did.

See also R v Bureke 1960 (1) 49 (FC); S v Turk 1979 (4) SA 621 (ZR).

Counsel for the accused relied on S v Nyangani 1982 (1) ZLR 150 (SC) in urging us to find that there was sufficient provocation to reduce the charge of murder to culpable homicide. It seems to me that her argument ignored the fact that the accused did not dispute the evidence given by Loveness Beta that after finding the letter inside his wife's handbag, the accused had sought her advice as how he should handle the situation he found himself in. In our view, he had the opportunity to reflect on the possible courses of action that were open to him. He had, so to speak, an opportunity to reflect on his action and reaction. He opted to ignore the sound, sensible and sober advice from his landlord and practically took matters into his own hands - as he said to the landlord.

In our view, a reasonable man in his position, having walked out to seek advice, and such advice having been rendered, would not have acted in the manner that he did. He would have heeded the landlord's advice and not settle on resorting to the use of a spear on the cheating wife. He expressed his wish to resolve the matter his own way. He was, at that stage, not armed with a weapon of any description, let alone a spear. The act of arming himself was a deliberate one, borne out of the desire to punish the wife for her so many transgressions which included infidelity. If he did not intend to kill her when he stabbed her in the abdomen he certainly realised the obvious risk associated with the puncturing of the abdominal area using such a weapon as a spear.

In our view, the accused cannot escape conviction for murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

He is therefore found guilty as charged.

The accused also raised provocation as a possible defence.

Section 239(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that provocation may be a partial defence to a charge of murder if “he or she has the intention or realization referred to in section forty-seven but has completely lost his/her self control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self control.”

See also S v Dzaro 1996 (2) ZLR 541 (H).

In the present case, the proved facts are that the accused was not provoked at all by the deceased. Even assuming the accused acted under provocation, the evidence shows that she did not lose her self control in that she answered Munyaradzi Gwezuva's question in a meaningful manner. She exhibited a lot of dexterity in extricating herself from Munyaradzi's grip. Thereafter, she looked for a weapon which she effectively used. Her behaviour after the attack shows that she was in full control of her faculties despite her hot temper. Put differently, a reasonable person faced with the sort of taunt the accused referred to would not have lost self-control. According to the accused, this was not the first time that such events had occurred. Munyaradzi also corroborated her evidence by saying, in the majority of cases, the cause of the fight was the accused's allegation that the deceased had girlfriends.

In our view, the following submission by counsel for the State aptly summarises the accused's evidence on provocation;

“In respect to the aspect of provocation, accused told the court different versions. In her Defence Outline, she stated that she had received a phone call from a person claiming to be deceased's wife and that led to a fight between her and deceased and leading to the stabbing of the deceased. In her warned and cautioned statement to the police, she stated that deceased had been accusing her of having boyfriends and kept pestering her about that issue and went on to assault her leading to the stabbing in an effort to defend herself. The accused, in her evidence in chief, told the court that deceased's “girlfriend” sent her insulting messages on her phone telling her to leave deceased alone.

It is the State's submission that accused's version of events cannot be possibly be believed as her story was fraught with contradictions and inconsistencies throughout. From the evidence led in court, the State is of the opinion that accused failed to show that she was provoked by anything that the deceased might have done or said on that day. If at all the accused had been provoked one would have reasonably expected her to react after the so-called phone calls or messages from deceased's girlfriend and not the following day. The partial defence, as afforded by section 239 of the Code, cannot be extended to the accused in this case.”

We agree entirely with this reasoning. Accordingly, the defence of provocation, in these circumstances, does not apply.

Provocation, in Zimbabwean law, may, where proved, reduce murder to culpable homicide, itself a punishable offence. This is because despite the fact that the accused would have responded to provocative behavior, it is every person's social responsibility to exercise self-restraint. Where they fail to do so, they must still be punished in order to prevent anarchy.

Our approach with provocation is two-pronged.

The first stage, being the application of the normal subjective test to decide whether there was an intent to kill. If there was intention to kill then the court must proceed to inquire whether the extent of the provocation was of such magnitude as to reduce murder to culpable homicide.

We, however, prefer the less problematic approach adopted in S v Nangani 1982 (1) ZLR 150 (S) instead of conducting the second rung of the inquiry. In that case, the court formulated the test stating that the question to be asked is: Was the provocation such as could reasonably be regarded as sufficient ground for loss of self-control?

In terms of section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provocation may be a partial defence where the accused lacks intention or realization of risk in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or he has the intention or realization referred to in section 47 but because of provocation has completely lost self-control in circumstances where a reasonable person would have lost self-control.

It is the now deceased who provoked the accused persons - especially Accused 2…,.

The accused was not meaningfully provoked by his father, the now deceased, who merely asked him why he had not finished thatching the hut.

Provocation

The accused should show that he acted as a direct result of the provocation. It is surprising to note that the accused was not provoked by Enock Muleya whom he alleged he found being sexually intimate with his wife - on his bed, in his house; and yet he wants the court to believe that he was provoked by the deceased because had seen him holding hands with his wife several hours before the murder. The accused's conduct defies logic and the defence of provocation has no foundation.

The requirements of this defence are canvassed under section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Section 239(1) of the Criminal Law (Codification and Reform Act [Chapter 9:23] is a partial defence to a charge of murder.

The accused has dismally failed to show how he was provoked by the now deceased but has sought to mislead the court as regards the basis of the alleged provocation. No wonder why the accused blows hot and cold by alleging a love affair between his wife and the now deceased but in the same breath alleges forced sexual act.

According to section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], whilst provocation is not a defence to a crime other than murder [to which it is a partial defence if certain conditions are met], nevertheless the court may regard it as mitigatory when assessing the sentence.

In terms of section 218 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), diminished responsibility operates in mitigation of sentence. It is diminished responsibility if, among other things, at the time when the accused commits a crime, his capacity to appreciate that the nature of his conduct is unlawful, is diminished on account of, among other things, acute mental or emotional stress.

In the present case, it must have been emotionally stressful for the accused to witness the complainant assaulting those close to him.

While the accused was clearly provoked by the now deceased's conduct, public policy demands that people should be able to rein in their temper even under such provocation and avoid such conduct leading to loss of life. The accused should therefore remain accountable for his conduct....,.

In terms of section 238 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] provocation is indeed a mitigatory factor in assessing sentence in a case of culpable homicide.

The accused was indeed provoked when he discovered an intruder inside his married daughter's bedroom who was a stranger to him. The attack upon the now deceased was therefore not pre-planned or premeditated. The accused was just confronted by a provocative situation and acted at the spur of the moment.

The Criminal Law (Codification & Reform) Act [Chapter 9:23] (“the Criminal Law Code”) has codified the Zimbabwean common law position regarding provocation as a defence.

Section 239 of the Criminal Law (Codification & Reform) Act [Chapter 9:23] sets out the circumstances under which provocation can successfully be raised as a partial defence to a charge of murder.

Section 238 of the Criminal Law Code provides that provocation shall not be a defence to crimes other than murder. Section 239 then elaborates when it may be a partial defence to the crime of murder. It is a partial defence, if, after being provoked, and as a result of provocation, the accused does not have the intention or realisation referred to in section 47, or, although the accused has the intention or realisation referred to in section 47, but has completely lost his self-control in circumstances where the provocation was sufficient to make a reasonable person lose his or her self-control; then, in those circumstances, the charge of murder will be reduced to culpable homicide.

Put differently, if a court finds that a person charged with murder was provoked but what he did here the intention on realisation referred to in section 47 or the provocation was not sufficient to make a reasonable person in the accused's position lose his self-control the accused shall not be entitled to a partial defence in terms of section 239(1) but the court may regard the provocation as mitigatory only….,.

In my respectful view provocation and anger are different concepts just as cause and effect are.

In criminal law, the term provocation seems to be used to include both concepts thereby throwing light on the accused's conduct. Thus, when considering the phrase “in the heat of passion” a court is assessing the subjective frame of mind which has triggered the act.

The concept of provocation indicates a situation in which the provoker elicits anger or wrath of the provoked by means of a challenging or defiant behaviour, and the latter, in reaction to the provocative behaviour, commits a criminal act. See S v Mokonto 1971 (2) SA 319 A.

Legally, the emotional response of the victim to the assaulting or provocative words or conduct is relevant. When a person has been provoked, anger and rage are the predominant emotions that are experienced.

In this case, the accused struck the deceased with a knife in the stomach. The accused, in this case, was not being attacked by an armed attacker. The accused was reacting to past harassment and conflict with the deceased. That would be a suggestion of provocation but certainly not a defence to the charge of murder….,.

The accused, when he testified in evidence in chief and under cross-examination, emphasises that he had endured a lot of humiliation at the hands of the deceased and his family. Whereas this might be the correct position and would amount to provocation it certainly is not a defence neither does it bolster the requirements of self-defence. The built up of past experiences at the rough hands of the deceased only bolster and depict a man who stood ready to show that it was time to clearly say enough is enough.

The accused is facing a charge of murder; it being alleged that on 4 April 2014 at House Number 32443 Entumbane, Bulawayo, the accused did wrongfully, unlawfully, and intentionally kill and murder his elder brother Eddington Muchairi.

According to the State summary, Annexure “A” the deceased was 40 years old at the time he met his demise, while the accused was aged 35 years. The two brothers stayed at the same house, 32443 Entumbane. At around 19:30 hours, on the fateful day, the deceased and the accused had an altercation on family issues which resulted in the accused striking the deceased with a hoe on the head and he collapsed. The deceased was rushed to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.

In his Defence Outline, annexure “B” the accused, in denying the charge, denied the intention to kill and raised self defence.

He averred that he was defending himself from the deceased who was approaching him with the intention of attacking him with a stone and from the deceased's wife who had picked up the hoe first and later had thrown it into the garden where he then picked it up.

He added provocation by the deceased and intoxication whose combined effect he alleged made him not realize the real risk/possibility his conduct would cause.

The other addendum was that the deceased, who was intoxicated, had earlier on fallen to the ground a couple of times on a hard surface with rocks.

He said he struck the deceased with a hoe once on the back, slightly below the neck, and once on either shoulder. He denied the allegation that he uttered the phrase “minus one” soon after assaulting the deceased.

The following exhibits were tendered by the State by consent:

(i) Exhibit 1 - affidavit deposed to by Constable Mwembe who identified the deceased's body to Dr I. Jekenya on 7 April 2014.

(ii) Exhibit 2 - the post mortem report number 86/67/2014 by the pathologist Dr I. Jekenya.

(iii) Exhibit 3 - the metal hoe used by the accused to strike the deceased with the following specifications:

(i) Weight = 2,5kg.

(ii) Length of handle = 84,5cm.

(iii) Length of blade = 14cm.

(iv) Sharp edge = 16cm.

Two witnesses, Tragedy Muchairi, the accused and the deceased's sister, and Sikhumbuzo Ncube, the accused's neighbour, gave viva voce evidence for the State.

The evidence of Lovemore Mutsakani, the police officer who recovered the hoe, and that of the pathologist, Dr I. Jekenya, was introduced by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused gave evidence and closed his case.

What is common cause in casu is that on the day in question the accused did strike the deceased three (3) times with the hoe, exhibit 3, bearing the specifications alluded to supra. He denied landing the blows on the deceased's head saying he struck him once on the back and once on either shoulder.

He sought to throw spanners into the fireworks by saying, before the assault, the deceased had slipped and fallen twice on a rocky surface. He did not say the deceased sustained injuries as a result of the fall.

We are not persuaded any bit that the deceased sustained the head injuries observed by the pathologist which occasioned his demise from the alleged fall. We are satisfied that it was the accused who caused those head injuries.

This is corroborated by the evidence of Tragedy Muchairi, whose testimony we accept, that although she did not actually see the accused deliver the blows on the deceased's head; when the accused approached her and the deceased on the road, she jumped across a drain and then heard “boom” the sound of the hoe striking the deceased three (3) times. When she later checked the deceased, he was lying down in a pool of blood.

Sikhumbuzo Ncube also heard the same sound, and after the accused had run away, he found the deceased lying in a pool of blood bleeding from his head.

Also, the pathologist found no injuries on the parts of the deceased's body the accused said he aimed the blows at.

The accused raised three (3) possible defences viz -

(i) Self-defence;

(ii) Provocation; and

(iii) Intoxication.

The latter two (2) can be quickly dismissed as mere sophistry, which, at best, amounts to either extenuation or mitigation or both.

Granted, both the accused and the deceased were intoxicated, but, the accused, clearly, from the evidence, knew what he was doing. He could run and he recalled with clarity all that transpired.

As for the alleged provocation, the evidence does not reveal that he acted in the heat of passion when his name continually featured in the discussion the deceased and Tragedy Muchairi were having as the cause of the family wrangles.

That the deceased's wife shouted at the accused from the yard hurling vulgarities, including referring to the accused's mother's clitoris – we are not persuaded that this occurred.

None of the witnesses heard this except the accused alone.

It is highly improbable that the deceased's wife would allude to her husband's mother's clitoris.

Even assuming she did insult the accused so, the accused had no plausible reason to then direct/vent his venom at the deceased instead of at the deceased's wife. No reasonable man would have lost his self control in the circumstances.

This case involves an allegation of murder of one brother by the other blood brother. It is the State's contention that on 15 August 2017, and at Village 51 Nyamusosa, Mayo, the accused unlawfully caused the death of Gabriel Masomera by striking him with a log once on the head with the intention to kill him or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility, resulting in injuries from which Gabriel Masomera died.

The accused pleaded not guilty to the charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]....,.

In his Defence Outline, the accused pointed out that the brothers, who had been assisting their parents at the brick kiln, had a misunderstanding over allegations by the deceased that the accused had extra marital affairs. This issue was brought to the attention of the accused in the presence of his 10 year old son, one Wisdom Masomera. This did not go down well with the accused hence the two engaged in a war of words. The mother, on realising the two were argumentative, ordered them to proceed to their respective homes. Whilst on the way, according to the accused's version, the deceased started physically assaulting the accused thus prompting the accused to pick a log and strike the deceased once and then the accused fled as he was in fear that the deceased would get up and follow him to fight again.

The summary of the State case captured the basis of the allegations on the day in question as follows:

The accused and the deceased were at their parents' home assisting their parents to bum bricks at a kiln. The deceased remonstrated with the accused on the latter's behaviour of having extra-marital affairs and this led to a misunderstanding. The accused left for his home but decided to waylay the deceased who followed and the accused struck him with a log.

The issue that falls for determination is whether or not the accused had the requisite mens rea when he caused the death of the deceased.

The State adduced evidence by tendering documentary evidence and leading evidence from witnesses. The confirmed warned and cautioned statement of the accused. The post mortem report by Dr Roberto Trecu, Affidavit of evidence by Dr Matsvai and sketch plan drawn through indications of witnesses and the accused were produced as exhibits 1-4 respectively by counsel.

Evidence of all the other witnesses, 2 and 4-11, was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Rosemary Chitagu, the mother of the accused and the deceased, and Winston Muchineripi Masomera gave oral evidence.

Rosemary Chitagu's evidence was on common cause aspects that on the day in question their children, including the deceased and the accused, were assisting them at the brick kiln. In the evening, the family gathered by the fire outside while the father and mother were inside the kitchen hut. According to the witness, the children, that is the boys, were drinking beer courtesy of the witness and her husband, the second witness. According to the witness, the beer purchased for the “boys” was two (2) crates of opaque beer commonly known as “scud”. The witness told the court that not all the beer was consumed and none of their children was drunk. The witness told the court that the deceased remonstrated with the accused over his wayward behaviour of having extramarital affairs. This did not go well with the accused who left for his home. The deceased remained behind and indicated he would stroke the fire to ensure that the fire at the kiln was attended to. Thereafter, the deceased bade his mother farewell.

Within a short space of time she heard noise and words to the effect “arise, arise, muka, muka” and advised her husband that their children were fighting but the latter was dismissive. The witnesses went out to investigate and she found the accused standing while the deceased was lying on the ground injured. The witness told the court that the accused was shouting in a weird manner that she thought maybe he was possessed given she was used to him being a respectable young man, but, on that day, when she sought clarity from him he disrespected referring to her in the singular; “hey you don't talk to me.” The accused went away with the log while the witness was trying to resuscitate the deceased using water after she had notified her other son Benjamin. The deceased regained consciousness and was taken to the clinic then hospital where he eventually died.

The witness' evidence was straight forward and she maintained, understandably, as a mother, that she was shocked in the manner the accused had struck his brother given ordinarily the two were close and the accused respected his elder brother. She maintained that there was no illicit brew of nipper or kachasu/tototo partaken by the children at the residence. She also suggested she did not know how to brew this beer.

Her evidence in this respect, and on all material aspects, was confirmed and corroborated by the husband Winston Muchineripi Masomera.

The latter confirmed that their children were, on the day in question, drinking opaque beer commonly known as “scud”. This was after assisting the parents at the brick kiln. His evidence as regards the sequence of events was the same as that of his wife. The accused left after having been remonstrated with over having extra marital affairs and an argument about tobacco seed. A while later the witness was called to the scene where the deceased was lying unconscious. Despite taking the deceased to the clinic and hospital the latter died.

The witness was firm that there was no illicit brew being partaken at his house on the night in question but opaque beer. He, just like his wife, pointed out that his wife could not brew the illicit beer as she was a member of the apostolic sect. He was equally surprised at how the accused turned violent on the night in question as he ordinarily respected his elder brother.

The accused was the only witness in the defence case....,.

The accused, in his account, pointed out that the deceased punched him with clenched fists and also struck with open hands. This, he said, happened while at the homestead when they had a misunderstanding about his alleged issues of extramarital affairs. This alleged physical combat was not confirmed by the State witnesses who pointed out that their children/sons only shouted at each other about the issue but there was no exchange of blows.

Both the father and the mother intended to stop the argument over tobacco seed and/or extra marital affairs.

By the way, we have no reason to doubt the State witnesses' evidence....,.

The impression created from the accused's version is that he did not take lightly to being remonstrated to about extra marital affairs during the presence of his 10 year old Wisdom Masomera....,.

The accused, in testifying and recounting the sequence of events, revealed he was not amused to be remonstrated with over extra-marital affairs in the presence of his child - which would be natural....,.This would have been an issue of provocation but not a defence to murder. 

Clearly, the suggested provocation, and time taken to react, would not vitiate the intention.

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach....,.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach.

The main issue for resolution were the circumstances surrounding the stabbing; in other words, the reasons for the misunderstanding....,.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(c) Efforts had been made to restrain the accused from further assaulting the deceased before the fatal stab.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.

Further corroborated was Tatenda Gwata's evidence that the deceased had sought shelter behind one of the patrons and that the deceased had not been holding any beer bottle fragment at that time.

As this witness was about to return inside he had observed the accused putting something in his bag and walking away.

His view was that the deceased was not a violent person and that if any provocation had taken place it was likely to have been the accused who had provoked the deceased as he had witnessed the two talking nicely before.

He further corroborated the first witness's evidence that on that day the deceased was definitely not drinking at the very least up to the point he fell asleep. He told the court that he had known the accused for over a year and that he had at least three girlfriends at the same time....,.

The Accused's evidence

The accused then gave his evidence.

He could not remember what time he had arrived at the bottle store as he had no watch. He surmised it was in the afternoon around 14:00. He confirmed that he was drinking beer bought by Kabanga Muyambo and not by himself. He could also not recall what time the deceased had entered the bottle store save that she had arrived when he was already there. His evidence was that the deceased had come to the counter where he was and they had started talking and drinking together. It was whilst they were talking that the deceased had stated that she wanted to sleep with him for a small fee. He had told her he had no money but she had been persistent.

According to him, the deceased had then hurled insults at him calling him useless and a pauper and had then poked him on his forehead with her finger. She had used profanities and had even slapped the accused after uttering the profanities. He had become angry at the insults and had slapped her and grabbed her head and butted her. That is also when she had hit him with a bottle.

He said she had continued uttering profanities and had come after him with a broken bottle. That was when Kabanga Muyambo got hold of him but he had shaken him loose. The deceased was by now behind one of the patrons but was still trying to advance to him with a broken bottle. He had taken out the knife to scare her from using the bottle and had intended to strike her on the arm. He had stabbed her in the stomach instead when he thought he had stabbed her in the arm. He had the knife on him because he had intended to go hunting....,.

The accused relied on the defence of provocation in that the deceased had mocked him for being less of a man. Section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) deals with provocation.

In cases other than murder it is not a complete defence but may act in mitigation. In murder cases, the initial question is whether the deceased had an intention to kill when he reacted to the provocation. If he had no intention to kill, the conviction is culpable homicide. If he had an intention to kill then the next question is whether a reasonable person faced with the same provocation would have acted likewise. If so, the accused would be found guilty of culpable homicide and not murder; see S v Mafusire 2010 (1) ZLR 417 (H)....,.

The evidence at every turn pointed to the accused having been the aggressor. When the bottle was thrown at him by the deceased it was in her self-defence as she was being head butted by the accused.

There was no evidence that the deceased was provoked. Instead, he was the one who provoked the deceased when he assaulted her for ignoring his advances. There was also no credible challenge to Tatenda Gwata's evidence regarding the accused's harassment of the deceased in the initial instance as being what led to the unfortunate events.

Indeed, the court observed that the accused was most at pains in crafting his version of events when it came to relating the cause of the violent rupture. What was particularly observable from the accused's narration of his version of events was that he clearly struggled to tell his story. His own counsel had to prod him several times to give the fuller accounts of what happened. This, to the court, was indicative of a person who was having to make up his story as he went along since deceivers tend to use fewer words in communication and make fewer factual statements for fear of being caught in the lie; see BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

His narrative was no more than pejorative utterances about the deceased as a 'prostitute.”

The story that the deceased had harassed him for sex and had become annoyed at his lack of co-operation and uttered profanities at him was clearly made up. There was no evidence from any of the two witnesses that they had heard the deceased utter any obscenities against the accused as he claimed that could have led to his being provoked as he was the first to assault the deceased before she threw the beer bottle at him when he was head-butting her.

She had been assaulted for showing no interest in him and rejecting his advances. 

In such a situation where there is a contest of credibility between an alleged male assailant and an alleged female assailant the court is indeed entitled to take cognisance of the fact the vast majority of crimes of violence are committed by men.