The appellant lived with the deceased for about two months after she came to him because she was pregnant. One evening, the appellant returned from work and the deceased complained she had not eaten as there was no money in the house. An argument ensued. The parties retired to bed with the appellant sleeping on a reed mat on the floor and the deceased on the bed. In the early hours of the morning, a neighbor named Munkuli heard the deceased screaming: "Herbert, my husband, what is this you are doing to me? But I am not dead yet, I will survive." Munkuli noticed fire in the room and assisted in putting out the fire. The deceased was completely naked and her hair was burnt. The deceased repeatedly accused the appellant of dousing her with paraffin and setting her alight, which accusation she made in the appellant's presence. The appellant never disputed or denied this accusation. Munkuli left to call an ambulance and alert police, leaving the appellant at the scene. Upon return, the appellant had disappeared. The deceased was taken to hospital where she later died. The deceased repeated the same accusation to the doctor at the hospital.
The appeal against both conviction and sentence was dismissed. The conviction for murder with actual intent and the death sentence were upheld.
When a deceased victim makes an accusation against an accused person in the accused's presence, and the accused fails to deny or dispute that accusation despite having the opportunity to do so, such evidence is not hearsay and can be admitted as part of the res gestae. The failure of an accused to deny serious accusations made in their presence, combined with subsequent flight from the scene, constitutes conduct consistent with guilt. For extenuating circumstances to be found in a murder case, there must be evidence that the accused acted impulsively or on the spur of the moment; where an accused waits until the victim is asleep before committing the act, this negates a finding of extenuating circumstances.
The court observed that if the appellant had truly changed his mind after committing the offense, he would have rendered assistance to the deceased and called for help. The court also noted that the issue of Mwale and the pregnancy appeared to be an afterthought since it was not mentioned in either the warned and cautioned statement or the defence outline, suggesting that if it had been the main issue leading to the incident, it would have been mentioned in at least one of those documents.
This is a Zimbabwean Supreme Court judgment, not a South African case. However, it demonstrates important principles applicable in Southern African criminal law regarding: (1) the admissibility of statements made by a victim as part of the res gestae; (2) when statements made in the presence of an accused person do not constitute hearsay; (3) the evidentiary significance of an accused's failure to deny accusations made in their presence; and (4) the assessment of extenuating circumstances in capital murder cases. The case illustrates that immediate spontaneous accusations by a victim in the presence of the accused, when not denied, can constitute powerful evidence of guilt.