The accused is the mother to the two children who died in
an inferno which destroyed the house in which the two children were asleep. She
was charged with murder as defined in section 47(1) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23]. The State alleged that;
“On the 26th day of May 2014, and at Tapera
Village, Chief Makoni, Rusape, the accused unlawfully and with intent to kill,
burnt Bathsheba Berly Mamhunze and Divine Rhythm Mamhunze by setting on fire
the bedroom in which both were sleeping and got burns all over their bodies
thereby causing injuries from which the said Bathsheba Berly Mamhunze and
Divine Rhythm Mamhunze died.”
It is common cause that the accused is the mother to both
deceased children. On 26 May 2014, the bedroom in which she was sleeping with
the two children with her husband and the two children was gutted by fire. The
State claims that the accused had intentionally set the bedroom on fire with
intent to kill her children. She denies the nefarious motive and maintains that
the fire started accidentally and gutted the bedroom where she and her family
were.
The matter proceeded to trial on that basis.
Evidence was led from not less than eleven witnesses. The
first witness was her husband's mother. Her evidence was that the accused was
the senior wife in her marriage to Tapiwa Mamhunze, her son. The junior wife
was Esina Kunaka. Earlier that day, the accused had quarrelled with her husband
over certain issues which remained unclear. She had restrained and counselled
them in this misunderstanding. She later observed the accused sprinkle petrol
on Tapiwa Mamhunze, her son, who she then attempted to set on fire. Her son had
managed to douse out the fire without incident or injury to himself. She and a
neighbour, one Loveness, had counselled the young couple and later retired to
bed. It was only in the early hours of the next morning that she woke up to the
shouts for help from her son, Tapiwa, who said his house was on fire. When she
got to the scene her son had managed to rescue Divine Rhythm. She accompanied
the child who had suffered serious burns to Rusape General Hospital.
The junior wife, Esina Kunaka, confirmed the altercation
between the accused and their husband. She also confirmed that the accused had
sprinkled petrol over their husband and attempted to set him alight. He did not
suffer any injuries as he managed to put out the flames. Later that night,
going into the early hours of the next day, she had been woken up by their
husband who shouted that the house was on fire. She occupied a separate section
of the house. She managed to escape with her children. The accused's two
children were severely burnt in the fire.
The father-in-law to the accused, Elton Mamhunze, gave evidence
in court. That evidence touched on the events of the day preceding the incident
in which his son's house got burnt. He had earlier that day counselled the
young couple against violence. They appeared to have heeded his wise counsel as
their father. He was awakened by his wife who told him of the fire engulfing
his son's house. He did not see nor did he later get to know from other sources
how the fire had started. He was unable to say the accused had set the house
alight.
The rest of the evidence was of a formal nature touching
upon how the hospital staff had treated the deceased and later complied post
mortem reports at different times as well as how the police had conducted the
investigations.
It is critical to observe that the only person who could
have shed light in this matter, besides the accused, was the accused's husband,
Tapiwa Mamhunze. They were in the same room with the children when the fire
started. He would have had the first-hand information regarding this aspect of
the case. Unfortunately, the State decided to exclude this crucial evidence,
and, instead, chose to call a witness, Elton Mamhunze, who was not listed as
part of the line-up of the State witnesses. In the end, there was no evidence
linking the accused with the death of the deceased.
As she was entitled to, the accused applied for the
discharge of the case against her at the close of the State case on the basis
that no evidence was led that she committed the offence charged or any other
offence for that matter.
The courts in Zimbabwe have pronounced themselves in a long
line of cases, including S v Kachipare 1998 (2) ZLR 271 (S), as to the law in
Zimbabwe on an application for discharge at the close of the case for the State.
The position at law is sufficiently clear as to be called trite. It may be
restated as follows. Where the court
considers that there is no evidence that the accused committed the offence
charged or any other offence of which he or she might be convicted, the court
has no discretion but to acquit.
On a charge of murder, the possible alternative charges
include culpable homicide and assault.
The test whether the court ought or must discharge the
accused at the close of the State case has been set out as follows;
The court should discharge the accused at the close of the
case for the prosecution where:-
(a) There is no evidence to prove an essential element of
the offence (A-G v Bvuma & Anor 1987 (2) ZLR 96…,.);
(b) There is no evidence on which a reasonable court acting
carefully might properly convict (A-G v Mzizi 1991 (2) ZLR 321…,.);
(c) The evidence adduced on behalf of the State is so
manifestly unreliable that no reasonable court could safely act on it (A-G v
Tarwireyi 1997 (1) ZLR 575…,.).
In all these instances, the cardinal guide is that the
State would have failed to prove a prima facie case against the accused. A prima
facie case is a case where one can say there has been shown, on the evidence
led, a probable cause to put the accused on his defence. Generally, probable
cause or a prima facie case is made where all the essential elements of the
offence charged or any other offence on which the accused may be convicted have
been proved on a balance of probability. At this stage, the test is not whether
there is proof beyond reasonable doubt but whether on a balance of
probabilities it can be argued that the essential elements constituting the
offence charged or any other offence have been proved.
On a charge of murder, the State, at this stage, ought to
show a balance that the following elements have been proved:
(a) Tthe accused burnt the deceased;
(b) By setting the bedroom on fire;
(c) With intent to kill;
(d) That the accused acted unlawfully.
In other words, the evidence must be such that a reasonable
court, acting carefully, may convict the accused for the offence charged or any
other offence on which he can be convicted.
The evidence led so far related to how the accused acted
towards her husband during the day. The accused had quarrelled with her
husband. She has secured petrol. She had later attempted to set him alight. She
had poured the petrol onto her husband and so on.
The charges she faces in this trial relate to her two
children and not her husband.
The crime charged, murder, was allegedly committed by
setting the bedroom, in which the two children were asleep, alight. There is no
evidence to show how she did this. There is, too, no evidence to suggest that
she did so intending that her two children only be consumed by the raging
inferno without risking her own life in the process. There is no evidence to
suggest that she lit the bedroom from the outside. There is no evidence of any
motive that she, as the natural mother, would have to achieve such a wicked
outcome. Of course, the existence of a motive is not, on its own, sufficient
evidence linking a suspect to a crime but it does provide probative value, in
cases, to other pieces of circumstantial evidence that may exist in a case.
This evidence could have been procured from the only other witness present in
the bedroom who survived the fire, Tapiwa Mamhunze, her husband.
He was not called.
As matters stand, an essential element of the crime, which
is the act constituting or linking the circumstances to the intent to kill, was
not proved. It is not clear on the evidence led so far, how she set the bedroom
alight, and, least of all, how she set alight or burnt her children. It is mere
speculation for this court to suppose that she had sprinkled the entire bedroom
with the petrol she had acquired earlier in the day in an effort to kill her
husband, as testified to by the mother-in-law or the junior wife. These two
could not, by any stretch of the imagination, be adjudged independent witnesses
in the circumstances of this case. Therefore, if one discounts the evidence
from the close family members, who themselves do not state that the accused set
the bedroom ablaze in a particular manner, or that she had confided in one, or
both, or more, of the witnesses that she had done so, it is unclear how the
case for the State could ever reach the threshold of proof beyond a reasonable
doubt.
The accused's defence is that this was a tragic and
unforeseen accident in which she too was a victim.
What this defence does is to challenge the State to prove
that the burning of the children was accompanied by a malicious mind on the
part of the accused….,.
In the present case, up to the close of the State case, it
is not disclosed what the accused did to either set the children's bedroom
alight or to burn them. Without some form of proof of her conduct, it is
inconceivable that the accused can be convicted on any other offence which is a
competent verdict on a charge of murder.
In the result, the accused must be found not
guilty and acquitted.
