MAKONESE J: The 3rd
of August 2014 started as a normal day for the 77 year old Johnson
Siphoko Moyo (now deceased). In the early hours of this Sunday
morning the late Johnson Siphoko Moyo assigned his son (the accused)
to dip his cattle as he wanted to leave them at Tshawulwa Grazing
Farm on his way to Bulawayo. After dipping the cattle the accused
returned home and penned the cattle. Andrics Moyo (accused's 3 year
old son) who was playing outside the yard followed accused who was
heading towards the cattle pens.
At around 0900 hours on the same
day the deceased left his homestead on his way to Bulawayo. He
unpenned the cattle intending to leave them at the grazing area some
distance from his homestead in the Nyabane area of Plumtree.
This was the last time the
deceased was to be seen alive. He went missing.
His remains were recovered from a
well on 17th
January 2016. The deceased was positively identified through his
national identity card, drivers' licence and the clothes he was
last seen wearing.
Investigations carried out by the
police led to the arrest of the accused.
The accused who was aged 26 years
at the time of the disappearance of the deceased denies the
allegation of murder being levelled against him.
Accused is deceased's son. At
the relevant time he resided at his father's homestead at
Malisikwana Village, Nyabane area, Plumtree with his father.
Accused's defence is a complete denial of the allegations.
The State tendered into the
record of proceedings an outline of the State case (exhibit 1). The
Defence Outline was tendered as exhibit 2. The accused's confirmed
warned and cautioned statement was admitted into evidence as exhibit
3. The affidavit of Constable Edson Chikunguru who was on duty at
United Bulawayo Hospitals and who identified the remains of the
deceased was marked exhibit 4. The post mortem report number
78/77/2016, prepared by Dr Sanganayi Pesanai was filed as exhibit 5.
The report indicates that the cause of death was:
(a) Severe head injuries.
(b) Multiple skull fractures.
(c) Assault.
The State Case
Andrics Moyo
The State opened its case by
leading evidence from Andrics Moyo. He is a minor child aged 5 years.
He gave his testimony via video link at the Victim Friendly Court.
The accused is his father. The
deceased was his grandfather. At the material time he resided with
his parents at deceased's homestead. This witness gave an
eye-witness account of the events that led to the death of the
deceased. He confirmed that his grandfather passed away. He testified
that the deceased was murdered by the accused. He narrated that
accused struck the deceased with an axe on the back of his neck and
all over the body.
The witness indicated that when
the deceased was axed by the accused one Japhet and his son were also
present. The witness further testified that Japhet and his son were
merely present when the crime was being committed and looking on. The
witness stated that after the deceased had been axed his body was
placed in a wheelbarrow by the accused. The body was then hidden in a
cave. The witness stated that he observed that the wheelbarrow had
blood. The accused washed away the blood after placing the body in
the cave. The witness observed that the cave had been covered with
stones.
Accused's defence counsel had
very few questions for this witness.
Andrics was quizzed as to why he
had not told anyone about what he had witnessed. The witness'
response was that he had informed the police what he had witnessed.
The witness pointed out that the police subsequently recovered the
remains of the deceased from a well.
It is my view that the evidence
of the minor child was given in a clear detailed manner. The young
witness gave a graphic and precise account regarding the commission
of the gruesome murder. He was not contradicted in any manner under
cross-examination. I find no reason to suggest that the evidence of
the minor child was tainted by malice. The evidence was given with
such clarity that the events of the fateful day seem to have remained
attached in the mind of the youthful witness. I am satisfied that the
evidence of the youthful witness was credible in all material
respects.
Priscilla Moyo
The State called as its second
witness Priscilla Moyo. She resides at Siphoko Johnson Moyo's
homestead, Nyabane Area, Plumtree. She knows accused person as her
maternal uncle and deceased as her grandfather. She testified that on
the 3rd
of August 2014 around 1000 hours the deceased left his homestead
wearing a khakhi trousers, a blue work suit jacket, brown “farmer”
shoes and was carrying a black bag. The deceased was headed for
Bulawayo where he intended to consult prophets and faith healers
regarding his missing cattle. The witness testified that deceased
intended to unpen his cattle and drive them to a farm for grazing
before embarking on his trip to Bulawayo.
This was the last time the
witness saw the deceased alive.
The witness indicated that before
this day the relations between accused and deceased had soured over
the deceased's missing cattle. Deceased fingered accused and one
Japhet in the loss of his cattle. The witness indicated that a
missing person's report was made when it became apparent that
deceased had not arrived at Bulawayo. The remains of the deceased
were discovered in January 2016. The witness assisted in the
identification of the body of the deceased. Under cross-examination,
this witness maintained that relations between the deceased and
accused had deteriorated as deceased was convinced that accused was
responsible for his missing cattle. The witness informed the court
that deceased had indicated that if he were to die, he would have
been killed by accused and his (deceased's) wife.
The evidence of this witness was
not controverted under cross-examination. She gave a concise account
of what she knew. She did not exaggerate her testimony. Her version
is credible and the court has no hesitation in accepting her
testimony as a true reflection of what happened.
Thambo Ncube
The third witness for the State
was Thambo Ncube. He resides at Malisakwana Village, Nyabane Area,
Plumtree. He knew the deceased during his lifetime as a close friend
and neighbour. He knew accused as deceased's son.
The witness illuminated the
proceedings by his candid testimony and somewhat ambient character.
He testified that during the first week of August 2014, around 0900
hours, he visited the deceased at his homestead. The deceased
revealed to him that he had missed four beasts at the grazing lands
and that he suspected that his son and one Japhet were responsible
for the disappearance of his cattle. The deceased ominously told the
witness that should he be found dead, the accused and his wife,
Mamina Moyo would be responsible. The witness further indicated that
after the disappearance of the deceased he had to engage senior
Police Officers at Plumtree but investigations yielded no clues
regarding the whereabouts of the deceased. The witness indicated that
sometime in January 2016 he was informed that the remains of the
deceased had been discovered in a well at Tshankwa Farm.
The evidence of this witness
remained largely unchallenged under cross-examination.
The witness corroborated the
assertion by Priscilla Moyo that prior to the disappearance of the
deceased the relationship between the deceased and accused had been
strained over the missing cattle.
The testimony of this witness was
clear and credible. It is an accurate reflection of what the witness
knew in connection with the case. There was no exaggeration on his
part. He had no motivation to lie or mislead the court.
The State then applied for the
admission of the evidence of the rest of the State witnesses by way
of formal admissions in terms of the provisions of section 314 of the
Criminal Procedure and Evidence Act (Chapter 9:07). The evidence of
the following witnesses was accordingly tendered into the record.
(a) Kenneth Maphosa.
(b)Annie Sibanda.
(c) Angeline Mhlanga.
(d) Detective Sergeant Xolani
Sibanda.
(e) Handson Moyo.
(f) Constable Emmanuel Chimhoswa.
(g) Constable McIrvine Langa.
(h) Xolisani Ability Ngwenya.
(i) Detective Constable Stanley
Tugwete.
(j) Detective Constable Garikayi
Mavhurama.
(k) Doctor Sanganayi Pesanai.
Defence Case
The accused elected to testify
under oath.
He is now 28 years old. He was
26 years old at the relevant time. The accused denied that he
murdered his father. He gave a lengthy account of his movements on
the day his father disappeared. He professed ignorance regarding the
allegation that he had murdered his father. He mentioned names of
various people he came into contact with on the day in question. He
did not however call any single witness to confirm his movements. He
failed to proffer any reason why his son Andrics would lie against
him. When pressed to explain why the minor child would falsely
implicate him, the accused ventured to suggest that the child might
have been influenced by one Ntombizodwa Ngwenya.
The accused surmised that the
minor child may have heard rumours circulating in the village that he
had killed his father.
The accused's suggestion was
not only far-fetched but without foundation. As correctly noted by Ms
Ngwenya, appearing for the State, the accused did not raise this
issue with the police when the warned and cautioned statement was
recorded. Secondly, the accused did not raise the issue in his
Defence Outline. Thirdly, the accused did not raise the issue in his
evidence in chief, neither was the issue raised under
cross-examination.
The inescapable conclusion is
that the assertion by the accused that Andrics may have been
influenced by villagers to create the damaging allegations against
him are an after-thought.
The nature of the detailed
evidence provided by the minor child is in logical sequence. There is
sufficient corroboration to the minor child's testimony. Priscilla
Moyo spoke of a bad relationship between deceased and accused prior
to his mysterious disappearance. Kenneth Maphosa was hunting with his
dog when he passed close to a small mountain when he noticed a human
body lying helplessly on the ground facing sideways and covered with
tree branches. This incident was witnessed around 3rd
August to 31 August 2014. Kenneth Maphosa had been dissuaded from
reporting the matter to the police by his grandmother. Kenneth
Maphosa was told by the grandmother that he would get into trouble
with the police if he reported the matter. After the discovery of the
remains of the deceased Kenneth Maphosa made indications to the
police and gave a statement outlining what he had witnessed on 3
August 2014.
Analysis of the evidence
The State relied to a large
extent on the eye-witness account of Andrics Moyo. That evidence is
credible and consistent. The court has been urged to treat the
evidence of Andrics with caution. It is been contended by Mrs
Magosvongwe appearing for the accused that the minor child never
narrated his story to any of the State witnesses for a period of 2
years. Further, it was argued that evidence of minors should be
treated with caution as witnesses of this age are suggestible and can
fantasize events. In support of her argument, counsel for the
defence relied on the case of S
v Sibanda 1994
(1) ZLR 394. I shall deal with the case later in this judgment.
For the State to secure a
conviction in this case, the court must be satisfied that the case
against the accused has been proved beyond reasonable doubt.
It is my view that the evidence
adduced by the State was not challenged nor controverted in any
material respect. The evidence of Andrics is consistent with the
results of the post mortem report. It is critical to note that, the
Pathologist Dr Sanganayi Pesanai made the following observations on
the remains of the deceased:
(a) Lineal Skull Fracture from
the right parietal to the left parietal bone.
(b) Lineal Fracture Frontal Bone.
(c) Fractured and missing right
frontal bone including the orbit.
(d) Fractured right parietal bone
missing piece.
(e) Fractured right temporal bone
missing part.
On other remarks the pathologist
noted -
(f) Fractured right anterior
fossae bones.
(g) Fractured right medial fossae
bones.
The nature of the injuries as
reflected in the post mortem report are consistent with the
observations made by the minor child who witnessed the accused axing
the deceased behind the neck, on the head and all over the body. It
is inconceivable that given the age of the minor child he would have
fabricated his evidence to such a degree that results of the post
mortem would, in all material respects fit into the puzzle of how the
deceased met his death.
The question of suggestibility
does not in this event arise at all. The evidence of the minor child
was not fanciful. The court notes that the minor child gave evidence
in a relaxed and purely innocent manner. His version of events is
accepted by this court. No reasonable or logical explanation has been
placed before this court to indicate that the child was motivated to
lie against his father.
Analysis of the law
In the case of S
v Sibanda (supra)
referred to by defence counsel, the court laid down certain
guidelines regarding the approach in dealing with evidence led from
minors. The court in that matter stated, (per head-note) as follows:
“In our law, unlike English
law, corroboration is not required. In our law, the approach is that
it is advisable to require corroboration of children because their
youth indicates immaturity which may cause them to give ill-conceived
or misleading evidence. Because our courts are not obliged to require
corroboration, the courts must be cognizant of potential objection to
the evidence of children which may or may not be valid according to
the facts and circumstances of each case.”
In the case of S
v Ncube
2014 (2) ZLR 297 (H), this court had occasion to deal with the
approach in dealing with evidence given by minor children in sexual
cases. This court concluded that:
“While the evidence of the
child witness must be approached with caution, such caution must be
creative or proactive caution where a judicial officer uses knowledge
of psychology or other relevant disciplines in order to maximize the
value of such testimony. Psychological research has established that
young children do not fantasize about being raped and other unusual
horrific occurrences, but their fantasies and play are characterised
by their ordinary daily experiences. It is highly unlikely for very
young complainants to make serious allegations without any basis at
all …”
In the case of Thomas
Madeyi v The
State HH-34-13 the
court cited with approval the Indian case of Uttah
Pradesh v Krishna
Master & Ors AIR
2010 SC 3071 where the Indian Supreme Court held that there is no
principle of law that it is inconceivable that a child of tender age
would not be able to recapitulate the facts in his memory. A child is
always receptive to abnormal events which take place in his life and
would never forget those events for the rest of his life. See also S
v Machowe
S-14-99 and S
v Madzombe
1999 (2) ZLR 214 (H).
In the instant case the child
gave his testimony in a clear and logical sequence. There is no
reason to suggest that his evidence is a result of fantasy or that he
was influenced to implicate an innocent man. The demeanor of the
youthful witness was that of an innocent child simply reciting and
narrating what he had observed. The events were so clear in the mind
of the child that he gave graphic details of the events.
It is safe to rely on the
evidence of the minor child.
There is sufficient corroboration
in the accounts of Priscilla Moyo, Kenneth Maphosa and Thambo Ncube.
The established facts are that
the accused sought to kill his father. He had the motive, the means
and the opportunity to commit the heinous crime. He planned on how he
would dispose of the body of the deceased. He managed to conceal the
body. Only after a period of 2 years was the body of the deceased
recovered from a well. The minor child, Andrics, placed the accused
at the scene of the crime. The defence did not controvert the version
placed on record by the minor child.
We are satisfied that the State
proved its case beyond a reasonable doubt. The accused intended to
kill the deceased. He achieved his purpose. The accused is
accordingly found guilty of murder with actual intent.
Sentence
In assessing an appropriate
sentence the court takes into account the fact that the accused has
been convicted of murder with actual intent. The murder was committed
in aggravating circumstances. The deceased was aged seventy seven
years at the time he met his death. The murder was clearly
premeditated. The court may therefore impose a death penalty as
provided under section 48(2) of the Constitution of Zimbabwe (No. 20)
of 2013.
The General Laws (No.3) of 2016
has now set out what constitutes aggravating circumstances. In terms
of section 8(3) it s provided that:
“A court may also, in the
absence of other circumstances of a mitigating nature or together
with other circumstances of an aggravating nature, regard any
aggravating circumstances the fact that -
(a) the murder was premeditated;
or
(b) the murder victim was a
police officer or prison officer, a minor, or was pregnant, or was
over the age of seventy years or was physically disabled.”
In terms of subsection 8(4) of
the General Laws Amendment it is further provided that:
“A person convicted of murder
shall be liable –
(a) subject to sections 337 and
338 of the Criminal Procedure and Evidence Act (Chapter 9:07), to
death, imprisonment for life or imprisonment for any definite period,
not less than twenty years, if the crime was committed in aggravating
circumstances as provided in subsection (2) or (3) or
(b) in any other case to
imprisonment for any definite period.”
The State has not advocated for
the imposition of the death penalty in view of what they perceive to
be the background facts of the matter. They argue that the fact that
the accused was being accused of stealing his father's cattle
affected his mind and he acted irrationally. The emotional and
pyschological stress he may have suffered contributed to his
irrational behaviour.
This court recognizes that the
manner in which the accused committed this offence fits perfectly
within the category of a murder committed in aggravating
circumstances. This court however, does have a discretion to impose a
death penalty or life imprisonment, or other appropriate sentence. In
my view, even where a murder is committed in aggravating
circumstances, the court still has a discretion whether to impose a
death penalty or other appropriate sentence. This discretion must be
exercised judiciously, taking into account all the relevant factors
relating to the commission of the offence.
The irrationality of the
accused's behaviour, tends to reduce his moral blameworthiness. I
have not lost sight of the fact that there was evidence placed before
the court to indicate that the relationship between the deceased and
the accused had soured prior to the commission of this offence. The
deceased had threatened to consult prophets and traditional healers
in Bulawayo to establish who was responsible for his missing cattle.
The accused must have been rattled and disturbed by this threat,
which possibly, would expose him as the person behind the missing
cattle. For that reason, I would be persuaded to give the benefit of
the doubt to the accused person to the extent that the accused was
not solely motivated by an evil design to murder his father.
This is a murder that was
evidently committed in a most brutal and callous manner. The accused
not only set out to kill his father. After he achieved his purpose he
succeeded in concealing the body. The remains of the deceased were
only recovered after a period of 2 years.
The court must therefore impose a
sentence that shows that the courts do not condone the senseless
killing of other human beings. The accused acted selfishly and showed
no remorse up to the end. He chose to cover up his tracks in the hope
that he would escape punishment for his evil deed.
In my view the following is an
appropriate sentence.
“Accused is sentenced to
life imprisonment.”
The Prosecutor General's Office, state's legal
practitioners
Messrs Danziger & Associates, accused's legal
practitioners
