The State v Bernard Kufakunesu [2025] ZWCHHC 18 (17 February 2025)

3 HCC 09/25 HCCR 94/25 THE STATE versus BERNARD KUFAKUNESU IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI 12, 14 & 17 February 2025 Assessors: 1. Dr Mashavave 2. Mr Kamanga Criminal Trial R. Nikisi for the State M. Magama for the Accused BACHI MZAWAZI J: Summarized background The accused person has been convicted of murder with constructive intent of the deceased Viola Chitsinde, a woman with whom he had two minor children and used to stay with as his second ‘wife’, through assaults and strangulation using an electric iron power cable. The offence took place on the 28th of October 2024, at Tegwede Shop, Masiyarwa Business Centre, Zvimba. The deceased who was visibly pregnant had demanded some cash for a scan through one of the police officers at Kutama Police station who in turn had called the accused. The deceased ended up at the accused’s shop residence where a fatal altercation ensued. The body of the deceased was discovered a few kilometres away from the accused’s home. This resulted in the arrest of the accused. He was charged with murder as defined in section 47 of the Criminal Law Code. In his defence outline, the accused admitted to killing the deceased but denied having the requisite intention to murder. It is his evidence that though he was not amused with the police station avenue that had been chosen by the deceased to settle their monetary disputes as they had always previously resolved them privately, he had agreed to meet the deceased at his shop homestead. He stated that at first there was rapport but later on the deceased who had been spoiling for a fight by going through his mobile handset and shop transactions notebooks poked his face amidst some accusations. He retaliated by slapping the deceased once on the chick resulting in the deceased aiming an electric iron at him. In the process of blocking the iron strike, the deceased is said to have been entangled by the iron cord and was choked when they both fell to the ground. The accused does not admit that the deceased died there and then in his residence but said after being strangled she rose to her feet and left into the darkness of the night. He only learnt of the victim’s death the following morning when summoned by the police after taking his four year old to pre-school. Witness Evidence. Bernard Kufakunesu Junior Strange as it may be, it is this four year old, the accused person’s son, Bernard Kufakunesu Junior who is the key and sole witness to this case. Unbeknown to the child’s parents the young boy witnessed the whole fracas leading to the murder. The first thing that morning, after his father left him, the small child related the incident in detail to his class teacher. The evidence of the class teacher was recorded by the police and tendered unopposed in court. At the trial, after taking into account all the precautionary measures to eliminate inherent weaknesses in child testimonies the child was housed in the victim friendly court so as to give evidence. The court ensured that as a child of a very tender age, the atmosphere and environment was relaxed to enable him to relax. Though the set up in the victim friendly court, a specialised court for that purpose was friendly and inviting, the court also directed, with the consent of both the defence and state counsels to allow the class teacher to sit with the child. This was with a view that a child may withdraw when amongst strangers but can be at ease with a familiar face close by. This intervention alongside the assistance from a female interpreter made the environment more conducive for a four year old. The method paid dividends as the four year old’s testimony was fluent, coherent, consistent and smooth flowing. Upon being led by Mr Nikisi, the child witness in his simplicity stated that, on the last day he was with his mother, his father the accused, assaulted his mother the deceased, with an iron. He told the court that after the assault, all the three of them left the house for a bush. He then came back with his father and his father went to jail. He was asked whether they returned with his mother and he said she was taken in a wheel barrow by the accused. The cross examination by the defence did not elicit anything materially different and could not discredit the child’s testimony. What the child witness said in court did not differ from the already produced evidence taken and recorded from the class teacher which also forms part of the State’s summary of the case. It suffices to note that most of the written witness evidence and documentary exhibits were tendered and admitted as part of the record without opposition. Oral evidence was led from the child witness and the investigating officer. The investigating officer was responsible for the compilation of the confirmed warned and cautioned statements, sketch plan and indications. Investigating Officer Apart from being the officer who had called the accused on behalf of the deceased at the police station, the investigating officer’s evidence was crucial to the extent that he was familiar with the accused and the deceased as well as their history of domestic violence. He also confirmed that the deceased was visibly pregnant when she met her death. This officer was the one who arrived first at the scene the body was discovered. It was his evidence that, though initially the accused pretended to be surprised with the news of the death, he eventually broke down and admitted to the commission of the crime. Analysis and application of the law On analysis, it is trite that child testimony just like single witness evidence should be treated with caution. In other words, it falls under the cautionary rule of evidence. This is because ordinarily children are prone to suggestions, manipulations, and fantasy and to some extent exaggeration due to their cognitive developmental stages. This was well explored in the cases of S v Mupfumburi HH464/2015 and S v Banana SC51/2000. Ponder 1989 (1) ZLR 255 (S); J 1958 (3) SA 699 (SR); Sikulite 1964(3) SA 151 (SR). The first two cases, whilst speaking to the cautionary rule in single witness evidence in general, and with regards to S v Banana, above, single witness evidence in sexual matters, highlight that, though corroboration is essentially necessary to test the veracity of a testimony in some instances, however, a conviction can be sustained even if there is no corroboration on a single witness evidence provided the court is satisfied with the credibility and consistency of the testifier. The last two cases are authorities that a court can convict on the basis of the uncorroborated testimony of a child witness, provided it is satisfied that the dangers inherent in founding a conviction on the child's uncorroborated evidence have been eliminated. Nevertheless, it is prudent as a court to examine whether there is corroborative evidence to that of the child implicating an accused person as such evidence is always viewed as the safest assurance against wrong convictions. See S v Musasa 2002 (1) ZLR 280 HH. S v Ncube 2014 (2) ZLR 297 HH. Against that background, it cannot be over emphasised that the key first-hand evidence in this matter comes from a single four year child. It is thus a combination of both single witness and child witness evidence. The court after taking measures that find support in the case of S v Ncube (2) ZLR HB 128-2014 of ensuring that the victim friendly court is user friendly as described above, and applying the cautionary rule found the testimony highly credible. Not only that, it was corroborated by the person to whom he first made the report even after witnessing such a traumatic, heart rending and harrowing experience. In addition, though the accused said the child was fast asleep, it is unbelievable as how would he have known that the child woke up due to the commotion and witnessed everything to the minute detail? The wheel barrow and the electric iron which were both mentioned by the child witness were all recovered through the accused’s indications admitted into evidence. The sketch plan now an exhibit before this court was drawn at the instance and assistance from the accused person. The most damning corroborative evidence came from the accused person’s own confirmed warned and cautioned statement and the autopsy report. In his confirmed warned and cautioned statement, the accused in a single sentence admitted to the murder citing that the deceased was a pestering nuisance and he had to put an end to the nuisance. Nowhere in that statement did he allege self-defence, provocation or that the deceased was the aggressor. These defences emerged in court but not sustained. The defence of provocation is provided for on Section 239 (1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. Ordinarily, all things being equal provocation if proved is a partial defence to murder reducing the charge to culpable homicide. We are convinced that there was no provocation and if ever there was, it was minimal and insignificant to warrant the murderous attack. There is no proof that he lost self- control or a reasonable man in his shoes would have lost control. We only heard of a mere finger poking on his person form a seven months pregnant woman which not only attracted a slap on the face but a wrestle and strangulation. Given their domestic violence background a reasonable person in those circumstances would not have lost self-control. See, S vMuchocha HMA25/23, S v Mafusire 2010 (1) ZLR 417; S v Moses Saunyama HH581/17 at 16; and S v Masina 2010 (2) ZLR 498. Be that as it may, the post mortem report, exhibit one, disclosed that the deceased died from strangulation from an electric wire cord. Strangulation means choking or throttling someone. It deprives the smooth normal flow of oxygen and blood and affects breathing, in simple terms. That is, it involves the obstruction or compression of blood vessels and/or airways by external pressure to the neck impeding normal breathing or circulation of the blood. For the accused to then say in open court, that the deceased after being choked by the electric cord entangled on her neck then woke up, a heavily pregnant woman for that matter, .to walk more than four kilometres away is illogical and a blatant lie. In the face of the autopsy report that version is contemptuously rejected. The reasonable inference drawn from the totality of evidence is the victim had the air choked out of her and she died at the crime scene, corroborating the child witness’s evidence that the body had to be then transported to a different location to conceal the offence. Inevitably, the child witness’s evidence has been corroborated in several ways by the documentary evidence adduced. More particularly, when the court could not help but take judicial notice of the fact that the young boy continuously referred to his father, the accused innocently, affectionately with a sense of great longing. This illustrated that he was oblivious of the implication of his testimony to his father‘s freedom. His continuous reference punctuating his every statement was ‘dad went to jail’ repeatedly, led the court to ask the prison officials to allow the boy to see his father one more time after their unceremonious parting. The torn apart boy who lost both parents almost the same time, one to murder and the other incarceration deserved to be given an opportunity for closure no matter how small. More so, when the boy had a stronger bond with the father who had been looking after him singlehandedly when the parties were living apart. Indeed, after the court session the boy delightedly flew into his father’s arms. Back to the case at hand, it is clear that though not disputed from the onset, the actus reus, that the accused killed the deceased has been proved. What remains is the mens rea. The partial defence of provocation has been dismissed. It follows that, the limited plea of negligent killing cannot be accepted either. There is no negligence in suffocating a vulnerable seven months pregnant woman to death. Nonetheless from the facts and evidence before this court murder with actual intent has not been proved beyond a reasonable doubt. The accused had not planned to meet the deceased on this particular day. Even when they then met , from the only version on record, the accused’s, the two spent some considerable time together whilst accused prepared supper up to the time of the scuffle. Murder with actual intent is not sustainable. It all boils down to murder with constructive intent. It is therefore our finding that the accused person, realizing that there was a real risk or possibility that his actions of strangling the deceased with an electric iron would result in her death, he continued with the strangling grip, stifling life out of her despite the possibility that death would occur. There was a reasonable foreseeability that death would occasion. He then resolved to remove the body and dump it elsewhere. We found the accused guilty of murder with constructive intent. See, S v Idea Rukwaripo HH92/12. S v Chimangaidzo Ndou HMA15/18. Sentencing Judgment The accused has been convicted of murder with constructive intent. The facts surrounding the commission of the offence have been exhausted in the main judgment. The accused strangled the deceased who was seven months pregnant. They were in a long term relationship marred with episodes of domestic violence. At the time of the commission of the offence they had been estranged, living separately. Weighing the mitigatory and aggravatory factors against the victim impact statement and the sentencing report the court is of the view that a sentence of 15 years meets the justice of this case. Cognisance has been taken of the fact that accused is an elderly person aged 54 years. He has a formal wife and several children. They paid two beasts towards lobola rites that had not been paid to the family of the deceased. Very little contribution was paid towards the funeral expenses. However, the age discrepancy between the victim and the accused is great. The deceased was half the accused’s age. He ought to have behaved like the more mature adult he is. He lied to the court that he was not aware that the deceased was pregnant with his child. The mother of the deceased. In the victim impact statement, the mother of the victim stated that the deceased was seven months pregnant. The second witness said that the deceased was visibly pregnant, so does the post mortem report. Two lives were terminated at the hands of the deceased. Gender based violence is ever increasing at an even more alarming rate. Society is failing to take heed of traditional dispute resolution mechanisms. “Vatete vachabvepi” a vernacular colloquial adage spelling the need of involving other social strata institutions, family elders, the church amongst other counselling groups to assist in dispute settlements. The young boy has also been an indirect victim of the domestic violence. Having to witness such a tragic event and the subsequent loss of the natural camouflage of his nucleus family, the child will be forever, scarred and traumatised. Though no amount of punishment compensates the loss of human life the circumstances of this case and the degree of blameworthiness coupled with the many aggravatory factors stated above calls for a deterrent penalty. The cases of S v Moyo HB240/2020, S v Bambanani Ndlovu HB83/24 and S v Chitsa HHC33/24 all involving strangulation of vulnerable persons have been of assistance in arriving at the custodial sentence of 15 years. Murisi & Associates, the accused’s legal practitioners. National Prosecuting Authority, the State’s legal practitioners. 3 HCC 09/25 HCCR 94/25 3 HCC 09/25 HCCR 94/25 THE STATE versus BERNARD KUFAKUNESU IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI 12, 14 & 17 February 2025 Assessors: 1. Dr Mashavave 2. Mr Kamanga Criminal Trial R. Nikisi for the State M. Magama for the Accused BACHI MZAWAZI J: Summarized background The accused person has been convicted of murder with constructive intent of the deceased Viola Chitsinde, a woman with whom he had two minor children and used to stay with as his second ‘wife’, through assaults and strangulation using an electric iron power cable. The offence took place on the 28th of October 2024, at Tegwede Shop, Masiyarwa Business Centre, Zvimba. The deceased who was visibly pregnant had demanded some cash for a scan through one of the police officers at Kutama Police station who in turn had called the accused. The deceased ended up at the accused’s shop residence where a fatal altercation ensued. The body of the deceased was discovered a few kilometres away from the accused’s home. This resulted in the arrest of the accused. He was charged with murder as defined in section 47 of the Criminal Law Code. In his defence outline, the accused admitted to killing the deceased but denied having the requisite intention to murder. It is his evidence that though he was not amused with the police station avenue that had been chosen by the deceased to settle their monetary disputes as they had always previously resolved them privately, he had agreed to meet the deceased at his shop homestead. He stated that at first there was rapport but later on the deceased who had been spoiling for a fight by going through his mobile handset and shop transactions notebooks poked his face amidst some accusations. He retaliated by slapping the deceased once on the chick resulting in the deceased aiming an electric iron at him. In the process of blocking the iron strike, the deceased is said to have been entangled by the iron cord and was choked when they both fell to the ground. The accused does not admit that the deceased died there and then in his residence but said after being strangled she rose to her feet and left into the darkness of the night. He only learnt of the victim’s death the following morning when summoned by the police after taking his four year old to pre-school. Witness Evidence. Bernard Kufakunesu Junior Strange as it may be, it is this four year old, the accused person’s son, Bernard Kufakunesu Junior who is the key and sole witness to this case. Unbeknown to the child’s parents the young boy witnessed the whole fracas leading to the murder. The first thing that morning, after his father left him, the small child related the incident in detail to his class teacher. The evidence of the class teacher was recorded by the police and tendered unopposed in court. At the trial, after taking into account all the precautionary measures to eliminate inherent weaknesses in child testimonies the child was housed in the victim friendly court so as to give evidence. The court ensured that as a child of a very tender age, the atmosphere and environment was relaxed to enable him to relax. Though the set up in the victim friendly court, a specialised court for that purpose was friendly and inviting, the court also directed, with the consent of both the defence and state counsels to allow the class teacher to sit with the child. This was with a view that a child may withdraw when amongst strangers but can be at ease with a familiar face close by. This intervention alongside the assistance from a female interpreter made the environment more conducive for a four year old. The method paid dividends as the four year old’s testimony was fluent, coherent, consistent and smooth flowing. Upon being led by Mr Nikisi, the child witness in his simplicity stated that, on the last day he was with his mother, his father the accused, assaulted his mother the deceased, with an iron. He told the court that after the assault, all the three of them left the house for a bush. He then came back with his father and his father went to jail. He was asked whether they returned with his mother and he said she was taken in a wheel barrow by the accused. The cross examination by the defence did not elicit anything materially different and could not discredit the child’s testimony. What the child witness said in court did not differ from the already produced evidence taken and recorded from the class teacher which also forms part of the State’s summary of the case. It suffices to note that most of the written witness evidence and documentary exhibits were tendered and admitted as part of the record without opposition. Oral evidence was led from the child witness and the investigating officer. The investigating officer was responsible for the compilation of the confirmed warned and cautioned statements, sketch plan and indications. Investigating Officer Apart from being the officer who had called the accused on behalf of the deceased at the police station, the investigating officer’s evidence was crucial to the extent that he was familiar with the accused and the deceased as well as their history of domestic violence. He also confirmed that the deceased was visibly pregnant when she met her death. This officer was the one who arrived first at the scene the body was discovered. It was his evidence that, though initially the accused pretended to be surprised with the news of the death, he eventually broke down and admitted to the commission of the crime. Analysis and application of the law On analysis, it is trite that child testimony just like single witness evidence should be treated with caution. In other words, it falls under the cautionary rule of evidence. This is because ordinarily children are prone to suggestions, manipulations, and fantasy and to some extent exaggeration due to their cognitive developmental stages. This was well explored in the cases of S v Mupfumburi HH464/2015 and S v Banana SC51/2000. Ponder 1989 (1) ZLR 255 (S); J 1958 (3) SA 699 (SR); Sikulite 1964(3) SA 151 (SR). The first two cases, whilst speaking to the cautionary rule in single witness evidence in general, and with regards to S v Banana, above, single witness evidence in sexual matters, highlight that, though corroboration is essentially necessary to test the veracity of a testimony in some instances, however, a conviction can be sustained even if there is no corroboration on a single witness evidence provided the court is satisfied with the credibility and consistency of the testifier. The last two cases are authorities that a court can convict on the basis of the uncorroborated testimony of a child witness, provided it is satisfied that the dangers inherent in founding a conviction on the child's uncorroborated evidence have been eliminated. Nevertheless, it is prudent as a court to examine whether there is corroborative evidence to that of the child implicating an accused person as such evidence is always viewed as the safest assurance against wrong convictions. See S v Musasa 2002 (1) ZLR 280 HH. S v Ncube 2014 (2) ZLR 297 HH. Against that background, it cannot be over emphasised that the key first-hand evidence in this matter comes from a single four year child. It is thus a combination of both single witness and child witness evidence. The court after taking measures that find support in the case of S v Ncube (2) ZLR HB 128-2014 of ensuring that the victim friendly court is user friendly as described above, and applying the cautionary rule found the testimony highly credible. Not only that, it was corroborated by the person to whom he first made the report even after witnessing such a traumatic, heart rending and harrowing experience. In addition, though the accused said the child was fast asleep, it is unbelievable as how would he have known that the child woke up due to the commotion and witnessed everything to the minute detail? The wheel barrow and the electric iron which were both mentioned by the child witness were all recovered through the accused’s indications admitted into evidence. The sketch plan now an exhibit before this court was drawn at the instance and assistance from the accused person. The most damning corroborative evidence came from the accused person’s own confirmed warned and cautioned statement and the autopsy report. In his confirmed warned and cautioned statement, the accused in a single sentence admitted to the murder citing that the deceased was a pestering nuisance and he had to put an end to the nuisance. Nowhere in that statement did he allege self-defence, provocation or that the deceased was the aggressor. These defences emerged in court but not sustained. The defence of provocation is provided for on Section 239 (1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. Ordinarily, all things being equal provocation if proved is a partial defence to murder reducing the charge to culpable homicide. We are convinced that there was no provocation and if ever there was, it was minimal and insignificant to warrant the murderous attack. There is no proof that he lost self- control or a reasonable man in his shoes would have lost control. We only heard of a mere finger poking on his person form a seven months pregnant woman which not only attracted a slap on the face but a wrestle and strangulation. Given their domestic violence background a reasonable person in those circumstances would not have lost self-control. See, S vMuchocha HMA25/23, S v Mafusire 2010 (1) ZLR 417; S v Moses Saunyama HH581/17 at 16; and S v Masina 2010 (2) ZLR 498. Be that as it may, the post mortem report, exhibit one, disclosed that the deceased died from strangulation from an electric wire cord. Strangulation means choking or throttling someone. It deprives the smooth normal flow of oxygen and blood and affects breathing, in simple terms. That is, it involves the obstruction or compression of blood vessels and/or airways by external pressure to the neck impeding normal breathing or circulation of the blood. For the accused to then say in open court, that the deceased after being choked by the electric cord entangled on her neck then woke up, a heavily pregnant woman for that matter, .to walk more than four kilometres away is illogical and a blatant lie. In the face of the autopsy report that version is contemptuously rejected. The reasonable inference drawn from the totality of evidence is the victim had the air choked out of her and she died at the crime scene, corroborating the child witness’s evidence that the body had to be then transported to a different location to conceal the offence. Inevitably, the child witness’s evidence has been corroborated in several ways by the documentary evidence adduced. More particularly, when the court could not help but take judicial notice of the fact that the young boy continuously referred to his father, the accused innocently, affectionately with a sense of great longing. This illustrated that he was oblivious of the implication of his testimony to his father‘s freedom. His continuous reference punctuating his every statement was ‘dad went to jail’ repeatedly, led the court to ask the prison officials to allow the boy to see his father one more time after their unceremonious parting. The torn apart boy who lost both parents almost the same time, one to murder and the other incarceration deserved to be given an opportunity for closure no matter how small. More so, when the boy had a stronger bond with the father who had been looking after him singlehandedly when the parties were living apart. Indeed, after the court session the boy delightedly flew into his father’s arms. Back to the case at hand, it is clear that though not disputed from the onset, the actus reus, that the accused killed the deceased has been proved. What remains is the mens rea. The partial defence of provocation has been dismissed. It follows that, the limited plea of negligent killing cannot be accepted either. There is no negligence in suffocating a vulnerable seven months pregnant woman to death. Nonetheless from the facts and evidence before this court murder with actual intent has not been proved beyond a reasonable doubt. The accused had not planned to meet the deceased on this particular day. Even when they then met , from the only version on record, the accused’s, the two spent some considerable time together whilst accused prepared supper up to the time of the scuffle. Murder with actual intent is not sustainable. It all boils down to murder with constructive intent. It is therefore our finding that the accused person, realizing that there was a real risk or possibility that his actions of strangling the deceased with an electric iron would result in her death, he continued with the strangling grip, stifling life out of her despite the possibility that death would occur. There was a reasonable foreseeability that death would occasion. He then resolved to remove the body and dump it elsewhere. We found the accused guilty of murder with constructive intent. See, S v Idea Rukwaripo HH92/12. S v Chimangaidzo Ndou HMA15/18. Sentencing Judgment The accused has been convicted of murder with constructive intent. The facts surrounding the commission of the offence have been exhausted in the main judgment. The accused strangled the deceased who was seven months pregnant. They were in a long term relationship marred with episodes of domestic violence. At the time of the commission of the offence they had been estranged, living separately. Weighing the mitigatory and aggravatory factors against the victim impact statement and the sentencing report the court is of the view that a sentence of 15 years meets the justice of this case. Cognisance has been taken of the fact that accused is an elderly person aged 54 years. He has a formal wife and several children. They paid two beasts towards lobola rites that had not been paid to the family of the deceased. Very little contribution was paid towards the funeral expenses. However, the age discrepancy between the victim and the accused is great. The deceased was half the accused’s age. He ought to have behaved like the more mature adult he is. He lied to the court that he was not aware that the deceased was pregnant with his child. The mother of the deceased. In the victim impact statement, the mother of the victim stated that the deceased was seven months pregnant. The second witness said that the deceased was visibly pregnant, so does the post mortem report. Two lives were terminated at the hands of the deceased. Gender based violence is ever increasing at an even more alarming rate. Society is failing to take heed of traditional dispute resolution mechanisms. “Vatete vachabvepi” a vernacular colloquial adage spelling the need of involving other social strata institutions, family elders, the church amongst other counselling groups to assist in dispute settlements. The young boy has also been an indirect victim of the domestic violence. Having to witness such a tragic event and the subsequent loss of the natural camouflage of his nucleus family, the child will be forever, scarred and traumatised. Though no amount of punishment compensates the loss of human life the circumstances of this case and the degree of blameworthiness coupled with the many aggravatory factors stated above calls for a deterrent penalty. The cases of S v Moyo HB240/2020, S v Bambanani Ndlovu HB83/24 and S v Chitsa HHC33/24 all involving strangulation of vulnerable persons have been of assistance in arriving at the custodial sentence of 15 years. Murisi & Associates, the accused’s legal practitioners. National Prosecuting Authority, the State’s legal practitioners.