S v Marira (534 of 2024) [2024] ZWHHC 534 (19 November 2024)

HH 534 - 24 HCH CR 3601/24 THE STATE versus MEMORY MARIRA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE 02 OCTOBER 2024 & 19 NOVEMBER 2024 Assessors: Mr Shenje Mr Mpofu Criminal Trial K Chigwedere, for the state L Sambadzai, for the accused MUNGWARI J: Memory Marira (hereinafter referred to as "the accused"), a 36- year-old woman, was indicted before the High Court on a charge of murder, as defined in Section 47(1) of the Criminal Law (Codification and Reform) Act [ Chapter 9:23], (the Code).

[1] The state alleged that on 20 January 2024, at number 401 Ushewekunze in Harare, the accused had a dispute with her husband, Lovemore Tembo (hereinafter referred to as "the deceased"). On that fateful night, the deceased, despite being already inebriated advised the accused that he was going for a beer drink. The accused objected and followed him outside. When the deceased returned into the house, the accused continued to press him not to leave. Although the deceased ultimately relented he insisted that he would attend a traditional beer-drinking ceremony instead. The accused did not accept the compromise. When the deceased attempted to leave the house once more, the accused struck him on the head with an empty bottle of coca cola. The deceased collapsed and was rushed to a nearby health centre for treatment. Unfortunately, he died the following day at Sally Mugabe Hospital. The state alleges that the accused inflicted the fatal injuries on the deceased with intent to kill, or with the realisation that her actions posed a real risk or possibility of causing death, yet she continued her course of conduct despite that awareness.

HH 534 - 24 HCH CR 3601/24

[2] The accused denied the charge of murder. She instead tendered a limited plea of guilty to the lesser charge of culpable homicide. The state however rejected the limited plea and sought to pursue and prove the allegations of murder. In her defence outline the accused admitted that she struck the deceased with a bottle amid a heated misunderstanding. She contended however, that she had no intention of killing the deceased. She claimed that she was provoked by the deceased’s drunken behaviour and taunts that he directed at her. Additionally, she asserted that he had pulled out her braids, actions which pushed her to react impulsively and violently. She maintained that in that moment of emotional distress, she did not foresee that the strike with the bottle would result in death. In essence the accused pleaded the defence of provocation.

[3] Since the accused agreed that she caused the death of the deceased by striking him on the back of the head with a bottle, the only issue that arises for determination in this case is whether the accused intended to kill the deceased and whether her defence meets the requirements to sustain the partial defence of provocation. State case

[4] The prosecution opened its case by applying to produce the autopsy report compiled by Doctor Arianna Gourguet a pathologist stationed at Sally Mugabe Hospital. The doctor examined the remains of the deceased on 24 January 2024. Significantly she noted surface wounds and injuries which she described as: “blunt wound in right parietooccipital region” Further an internal examination on the head revealed: “hemorrhagic as well as infiltrate in perineum, hemorrhagic infiltrate in both flaps in right region, epidural hematoma in the right region, cranial vault collapse in occipital region, spiderweb fracture in occipital region as well as severe brain edema” In the end she concluded that the cause of death was due to: a. “Severe brain edema b. Skull fracture c. Severe cranioethoracic trauma” With the consent of the defence the postmortem report was duly admitted into evidence as Exhibit

1. The cause of the deceased’s death was therefore uncontested as was the act of violence perpetrated upon the deceased.

[5] Exhibit number 2 comprised two broken bottles and their certificates of weight. It was tendered by consent. The court observed broken pieces of a brown beer bottle

HH 534 - 24 HCH CR 3601/24 weighing 350g as well as pieces of a Coca-Cola bottle weighing 740g.The state alleged that the Coca-Cola bottle was the murder weapon. The other was also used during the melee that occurred on the fateful day.

[6] Additionally the testimonies of Richard Chitima, Mirriam Malunga and Melody Musengezi (the investigating officer in the matter) were formally admitted in accordance with s314 of the Criminal Procedure and Evidence Act [ Chapter 9:07 ] ( CPEA) as outlined in the state’s summary of evidence. In his testimony, Richard Chitima, a friend and neighbour of the deceased, stated that he had been summoned by Jessica Tembo to the deceased’s residence after the accused had assaulted him. Upon arrival, he found the deceased bleeding and lying at the entrance of the bedroom. Richard transported the deceased to the doctor’s rooms where he received treatment and was subsequently discharged. However, the deceased’s condition worsened prompting Richard to take him again the following day to Sally Mugabe hospital. He informed the deceased’s sister Melody Malunga about the assault. She arrived at the hospital with medication for the deceased only to discover that he had already passed away. Following a report of murder, Melody Musengezi a duly attested member of the Zimbabwe Republic Police was assigned to investigate the case. She proceeded to arrest the accused and, in the accused’s company she visited the crime scene. There, she recovered the broken pieces of bottles that were allegedly used as the murder weapon.

[7] The evidentiary value of the above witnesses’ testimonies was somewhat diminished. The accused’s admissions had already established the facts they all stated in their

Evidence

The only relevant piece is that Melody Musengezi recovered the broken pieces of bottles with the accused’s assistance.

[8] The state also led viva voce evidence from Jessica Tembo the deceased’s daughter. The accused on the other hand was the sole witness for the defence. Jessica Tembo (Jessica)

[9] Jessica, currently a sixteen-year-old girl is the deceased’s daughter and the accused’s step daughter testified that the accused has been the only mother she has known since she began living with the couple at a young age. The accused and the deceased also have three children together. Jessica indicated that she has maintained a positive relationship with the accused, while the same cannot be said of the relationship between the accused and the deceased which had always been tumultuous. For as long

HH 534 - 24 HCH CR 3601/24 as she could remember they always fought and she had actually become accustomed to witnessing their frequent conflicts. In her view, the accused’s bone of contention with the deceased was always over money. She personally witnessed the traumatic events that unfolded in their two-room house on the fateful night. Apart from the accused and the deceased, she was the only other person present in the house, making her the sole witness to the events that transpired. She said her parents had arrived home separately that night. The deceased, who was intoxicated, requested for food from the accused. The witness further said she had dozed off while the accused was warming up the deceased’s meal but was stirred awake shortly thereafter by the clinking sound of bottles. She opened her eyes in time to see the deceased gathering some bottles on the floor. From her vantage point in the dining room, where she lay, she observed and heard the accused arguing with the deceased in the bedroom. With only a torn curtain separating her from the doorway, she stated that she was able to see and hear everything clearly. She heard the deceased taunting the accused, urging her to finish him off with the bottles he had arranged for her. He encouraged the accused to ensure she did not miss her target, as she had done the last time. She then witnessed the deceased hit an empty black label bottle against the bed, shattering it. She also observed the accused, dressed only in a Zambia cloth, following the deceased outside the house, and insisting that she wanted to accompany him wherever he was headed. The deceased protested, admonishing her about her nearly naked state, and instructing her to go back inside the house.

[10] Three times, the accused and the deceased chased each other outside, quarrelling over his decision to leave. Despite the bickering, they occasionally laughed and engaged in light conversation during these exchanges, which lasted for about two to three hours. Exhausted and desperate for a moment of sleep, which was repeatedly interrupted by their arguments, she decided to go to Richard Chitima’s house for help. Richard was the deceased’s friend and neighbour. When she pleaded with him to intervene between the two, he refused to help.

[11] Upon returning home, she was confronted by the deceased, who cautioned her against going out at night. He closed the door behind her securing it with an empty bucket. Once inside, and from the same vantage point, she overheard the deceased, who was in the bedroom with the accused, informing her that he was now leaving for a traditional beer-drinking ceremony. As he was leaving the bedroom where the

HH 534 - 24 HCH CR 3601/24 accused was and at the doorway she witnessed the deceased being struck from behind hard with a Coca-Cola bottle by the visibly angry accused. He fell to the ground face down, his upper body landing in the dining room while the rest remained in the bedroom. For a while, the deceased lay there in silence, bleeding profusely, with his blood flowing onto the blankets on the floor and spilling onto the veranda. The witness wailed in disbelief at the horrific scene before her. She called out the accused, questioning why she had killed the deceased. According to Jessica the accused made light of the injury and even asked her why she was crying. She left the accused pouring water on the deceased as she rushed to seek help from Richard Chitima for the second time that evening. This time she was able to convince him. She returned with him in tow. When she arrived with Richard they found the deceased awake, holding a cup of water as he asked the accused what she used to assault him. Jessica heard the accused apologising to the deceased. Richard then transported both the accused and the disoriented deceased to the clinic while she the remained behind cleaning.

[12] Jessica was clear in her testimony that the accused was not provoked. Rather it was the accused who provoked the deceased and prevented him from leaving the house when he wanted to. Despite that the two had bickered and argued over deceased’s intention to leave the house and the accused’s request for money, she did not at any point witness any physical altercation between them. She dismissed the accused’s claims that the deceased had pulled out her braids or that she accidentally picked up the bottle in a moment of heated reaction. According to Jessica, the deceased had simply indicated that he was leaving for the traditional beer drinking ceremony and was on his way out when the accused struck him from behind. She firmly stated that she had no reason to fabricate any evidence against the accused, as she had lived with her for nearly her entire life. The accused is the only mother she knows and their relationship was one characterised by mutual affection.

[13] Cross-examination of the witness was cursory. Contrary to defence counsel’s expectations it simply elicited firmer reiterations of the witnesses’ evidence in chief ultimately leaving her testimony both solid and credible. Defence case- Memory Marira (Memory)

[14] In her evidence in chief the accused significantly deviated from her defence outline, attempting to persuade the court that she acted in self-defence. She began by

HH 534 - 24 HCH CR 3601/24 asserting that the deceased, her husband of twelve years was an abusive man who regularly assaulted her. However, she admitted that she had never reported any of the incidents she cited. On the fateful night, the deceased returned home intoxicated at around 2200 hours. After warming his food and serving him in the dining room where Jessica lay, he got up and followed her into the bedroom. Unprovoked he pulled her braids from her head as he threatened to kill her. He then began to assault her with fists all over the body. In a desperate attempt to calm him she apologised for any perceived harm that she might have caused. He released her momentarily and then pretended to strike her with a bottle before smashing an empty Coca-Cola and a black label beer bottle together sending glass shards cascading onto the bed. He approached her demanding to know if she had seen what he had done and reiterated his intention to kill her before resuming his assault. She testified that she called out to Jessica twice, instructing her to summon Richard Chitima but Jessica did not respond. The deceased continued beating her and then began to throttle her. In a moment of desperation, she became emotional and picked up a beer bottle, striking him on the head, causing him to fall. She confirmed Jessica’s account, that the impact sent the deceased sprawling into the dining room where Jessica lay. The accused further said she instructed Jessica once more to call Richard. Jessica did while she remained behind with the deceased. She tied the deceased’s head with her clothing garment in an effort to stop the bleeding. She emphasised that her intention was merely to ward of the attack by inflicting pain on the deceased and not to kill him. When the deceased regained consciousness she even apologized to him in the presence of Richard and Jessica. Moreover, she accompanied the deceased to Unihealth Surgery to ensure that he received medical assistance.

[15] When questioned by defence counsel on the distance between herself and the deceased when she struck him she claimed they were some meters apart. The implications of her response appeared to elude her, as she had previously claimed that the assault occurred while the deceased was actively throttling her. This inconsistency poked holes into her narrative making it doubtful that she had been throttled. She claimed that she had no other means to defend herself because the deceased was in the habit of assaulting her. She even volunteered information of how the accused was prone to violent acts and corroborated Jessica’s evidence that the relationship had become acrimonious due to constant disagreements. What stood out from her

HH 534 - 24 HCH CR 3601/24 testimony was that she was a dishonest witness. She crafted a narrative that ultimately, ensnared her in contradictions.

[16] Under cross examination she was taken to task over the entirely new and inconsistent elements introduced into her narrative. Specifically, she claimed that she had been threatened with death and violently attacked, including being throttled, which she argued justified her actions in self-defence. However, her defence outline had not mentioned these significant threats or acts of violence. It being the basis of her defence she could not have failed to include it in her defence outline. Instead, she focused on minor issues such as the deceased's drunken behaviour, taunts, and the pulling of braids, omitting crucial details about threats of death, physical assaults, and throttling. As anticipated, she struggled to provide a satisfactory explanation for this discrepancy, further undermining her assertions of having acted in self-defence.

[17] The court also inquired whether she had sustained any injuries from the alleged vicious attack. She admitted that she had only minor injuries. She neither sought medical attention nor report the incident to the police. That raised doubts about her narrative, leading us to conclude that her claims of being threatened and mercilessly attacked by the deceased were likely an afterthought and a red herring.

[18] The accused also found herself at a loss for words when asked if her narrative implied that three bottles were broken on the same night.She responded by saying that she hit the deceased with a bottle of black label making the bottles of black label that were broken in that house on that night two in number. However, she struggled to clarify why only shards from one Black Label bottle were picked up from within the house after the incident, rather than two. She suggested that they may have been thrown in the pit outside the house as she claimed to have seen some in the rubbish pit. She forgot that in her unchallenged evidence Melody Musengezi a police officer said she recovered the pieces of bottles in the presence of the accused and took them as exhibits. She could have indicated to her that others were in the dust bin. That inconsistency led us to view her assertion that she struck the deceased with a Black Label bottle on the head as an afterthought. It appeared she was desperate to introduce a second beer bottle into her narrative, so that she could claim it as the weapon she used to assault the deceased. In her evidence in chief, she had already accounted for two bottles that she claimed were shattered by the deceased and fell onto the bed. Given this significant inconsistency, we found Jessica’s account more credible - that