TAKUVA J: Accused persons
were facing a murder charge in that on the 1st
of February 2015 and at near Malathu Moyo's homestead, the accused
persons did wrongfully, unlawfully and intentionally kill and murder
Vusumuzi Mathuthu a male adult in his life time there being.
They pleaded not guilty to the
charge.
Accused 1 pleaded guilty to a
lesser charge of culpable homicide while Accused 2 pleaded guilty to
assault. The State accepted the limited pleas.
The following exhibits were then
produced:
1. Statement of Agreed Facts;
2. Affidavit by Constable
Chikunguru;
3. Post mortem report; and
4. A stone weighing 0.560kg.
The facts are as follows;
“1. The deceased was aged 27
years at the time he met his death and he used to reside at Eedufilly
Ncube's homestead, Bambanani Makoshe Line, Avoca Area, Filabusi.
2. The first accused (Callup
Sibanda) was aged 36 at the time of the commission of the offence and
he resides at Esnath Sibanda's homestead, Shakwe Line, Avoca Area,
Filabusi.
3. The second accused (Blessed
Ncube) was aged 18 at the time of the commission of the offence and
he resides at Artwell Ncube's homestead, Shakwe Line, Mbawulo
Village, Avoca Area, Filabusi.
4. On the 1st
of February 2015, the two accused persons were at Malathu Moyo's
homestead drinking beer under a marula tree. The two were later
joined at Malathu's homestead by the deceased who was in the
company of Bongani Mathuthu and four others who sat about 3 metres
from where the accused persons were and started drinking beer.
5. After some time, Bongani
Mathuthu, deceased's brother, stood up from where they were and
approached the two accused persons and extended a greeting to them.
6. The first accused did not take
kindly to the greeting and queried why he was being greeted at that
point. A verbal altercation then ensued between accused persons and
deceased and his group to which Bongani Mathuthu was party. Malathu
Moyo intervened and quelled the dispute.
7. The first accused then asked
for his cellphone from Malathu Moyo which was being used for playing
music and he, together with the second accused, stood up and left.
8. One Xolani who was of
deceased's party followed them indicating that he wanted to
understand from the accused persons what their problem was.
9. When Xolani caught up with the
accused persons just outside Malathu Moyo's homestead another
misunderstanding ensued which degenerated into a physical
confrontation.
10. Seeing this Bongani Mathuthu
and the deceased rushed to the scene and joined in on the side of
Xolani. During the confrontation first accused was struck once in the
hip with a catapult propelled by Xolani.
11. Malathu Moyo came through and
intervened again and the fighting ceased. Bongani Mathuthu, Xolani
and the deceased went back into Malathu Moyo's homestead and
resumed drinking their opaque beer mixed with some illicit brew
(tototo) while the two accused persons proceeded towards Accused
Two's homestead which is close to Malathu Moyo's homestead.
12. After a short while, the two
accused persons came back and stood outside Malathu Moyo's
homestead. The first accused called out saying he wanted to talk to
the person who assaulted him to which Malathu Moyo responded by
approaching the accused persons and persuading them to just leave the
matter.
13. The accused persons however
did not heed but remained standing there when Malathu went back to
his homestead.
14. On getting back home Malathu
found that a fight had erupted amongst the patrons at which he
ordered everyone out of his homestead.
15. The bulk of the patrons left
using the western gate which is close to where the accused persons
were still standing while the deceased, Bongani and Xolani went out
through the eastern gate.
16. Upon seeing this, the accused
persons went round Malathu's homestead fence to meet the deceased,
Xolani and Bongani.
17. Upon meeting, another fight
ensued between the two groups with both groups hurling stones at each
other. Xolani and the second accused were using their catapults.
18. During the altercation the
second accused fled the scene and Xolani pursued him. Second accused
outpaced Xolani who turned back and headed to his home.
19. As the fight continued the
first accused picked a stone and struck the deceased once on the
forehead. As a result the deceased fell, collapsed, and lay prostrate
on the ground. At that point Bongani Mathuthu fled from the scene and
stood at a point a short distance away.
20. Accused 1 then advanced to
the deceased who still lay on the ground and stamped on his head
several times with booted feet. Malathu Moyo then rushed to the scene
and pleaded with Accused 1 to stop assaulting the deceased.
21. Accused 2 on seeing that
Xolani had ceased pursuing him, turned and returned to the scene, to
find that the deceased had already fallen down after taking a blow to
the head from Accused 1's hand propelled stone.
22. On approaching the scene,
Accused 2 shot at the deceased who was lying down on the ground with
his catapult, hitting him on the leg. The two accused persons then
left the scene.
23. The witness Malathu Moyo
remained at the scene tending to the deceased who had at that point
lost consciousness. The deceased was then ferried to Mabuza Clinic
where on arrival he was immediately transferred to Filabusi Hospital
where he died on admission.
24. Per the post mortem report
number 99/97/2015 compiled by Doctor Betauncourt after examining
deceased's remains, the cause of deceased's death was;
(i) Severe brain oedema.
(ii) Subdural haematoma.
(iii) Severe head trauma.
25. Accused 1 pleads Not Guilty
to Murder but pleads guilty to Culpable Homicide in that he
negligently and unlawfully caused the death of the deceased when he
assaulted him with a stone and stamped on his head several times with
booted feet.
26. Accused 2 pleads Not Guilty
to murder but guilty to Assault in that he intentionally caused
bodily harm to the now deceased when he struck him on the leg with a
catapult propelled stone.”
From the facts contained in the
Statement of Agreed Facts we are satisfied that the State's
concession to the limited pleas is proper at law.
Accused 1 admits the actus
reus. He admitted
using the stone and stamping deceased on the head with booted feet.
Deceased died from injuries sustained from accused's assault. A
reasonable man would have foreseen that a person might die if struck
with such weapons. Accused struck deceased on the head.
We therefore return the following
verdicts:
Accused 1 – not guilty of
murder but guilty of culpable homicide.
Accused 2 – not guilty of
murder but guilty of assault i.e. contravening section 89 of Criminal
Law (Codification and Reform) Act [Chapter 9:23].
Sentence in respect of Accused
1
In assessing sentence the court
will take into account what has been submitted on your behalf by your
counsel in mitigation. In particular we have considered your personal
circumstances namely that you are a 36 year old family man.
As regards circumstances
surrounding the commission of the offence, we have considered that
the incident occurred at a beer drink and that you were drunk.
We have also taken into account
the fact that you pleaded guilty to the charge and in that respect
you did not waste the court's time. We accept the legal principle
that a plea of guilty is a weighty mitigating factor.
While we accept that the accused
was hit by one of deceased's friends, we do not attach much weight
to this as accused knew who had assaulted him and he should have
pursued that attacker instead of assaulting an innocent man.
On the other hand we considered
the following aggravating factors;
(a) life was unnecessarily lost.
The motive for the attack appears totally unreasonable.
(b) the accused used a very
dangerous weapon – a very hard granite stone.
(c) he aimed at the most
vulnerable part of a human body i.e. the head.
(d) he used excessive force to
fracture deceased's head.
(e) he continued to attack the
deceased when he was lying on the ground helpless.
(f) the accused showed total
disregard for deceased's safety and health.
(g) accused disregarded Malathu
Moyo's very good advice not to engage in violence and to leave the
place.
(h) although he was the most
mature person at the scene, he did not exhibit this maturity in his
conduct towards the deceased.
(i) accused had more than one
opportunity to pull out of this fight but he consciously decided not
to do so.
For these reasons we find that
the cases of S
v Sibanda
SC245-13 and S v
Ncube
HB173-15 are clearly distinguishable from the one in
casu.
Bearing in mind the deterrent and
retributive theories of sentence we weighed the mitigating features
against aggravating factors and found that the latter far outweigh
the former.
We agree with the State counsel
that a substantial term of imprisonment is called for.
The value of deterrence should
not be underestimated. If courts pass lenient sentences, this would
put the administration of justice into disrepute. The result will be
an affront on the rule of law as victims' relatives will take the
law into their own hands with catastrophic consequences. The courts
therefore have a duty to uphold the sanctity of human life by passing
sentences that take into account the retributive element of
sentencing. As we pointed out above, it is not clear why the accused
killed the deceased.
For these reasons, Accused 1 is
sentenced as follows:
8 years imprisonment of which 2
years imprisonment is suspended for 5 years on condition the accused
does not within that period commit any offence involving violence
upon the person of another and for which upon conviction will be
sentenced to a term of imprisonment without the option of a fine.
Sentence in respect of Accused
2
As regards Accused 2 we took into
account the following mitigating factors:
(a) youthfulness – accused was
aged 18 years at the time. It is trite that young people act
irrationally and are easily influenced.
(b) the fact that the accused is
a first offender is mitigatory in that first offenders should be kept
out of prison where possible.
(c) the plea of guilty – the
accused did not waste the court's time.
(d) the accused has been in
custody for 8 months pending trial through no fault of his.
(e) that he is remorseful.
Against these mitigating factors
we found the following aggravating features;
(i) the accused assaulted the
deceased for no apparent reason as deceased was lying down posing no
threat at all to the accused.
(ii) the accused used dangerous
weapons i.e. a catapult and a stone.
(iii) the accused intended to
assault the deceased.
(iv) he inflicted bodily harm in
the form of a wound on the deceased's left leg.
(v) instead of stopping Accused 1
from further assaulting a helpless man, he joined in the unlawful
attack.
Weighing these two, we find that
the aggravating factors far outweigh the mitigating features. In
terms of section 89(1) of the Criminal Law (Codification and Reform)
Act, the court can impose a fine or a term of imprisonment as
punishment for assault.
In casu,
we are of the view that a fine will trivialize the offence and will
not send the correct message to would be offenders.
Accused is a man of straw and if
ordered to pay a fine, his parents will most likely pay on his behalf
and he will not be punished personally.
As regards community service, we
disregarded it for the simple reason that in the rural areas it is
difficult to supervise these offenders.
We have decided therefore to
impose a custodial sentence.
However in determining the length
of this sentence we will take into account the period accused spent
in custody awaiting trial. It is common cause that accused spent 8
months in custody pending trial.
We strongly feel that there is
need to deter young people from committing offences involving
violence through the use of dangerous weapons. In most cases as
indeed in casu,
the victims of such assaults are elderly innocent citizens. The only
way the court can deter would be offenders is through stiff
penalties.
Accordingly, the accused is
sentenced to 6 months imprisonment of which 4 months imprisonment is
suspended for 5 years on condition accused is not within that period
convicted of an offence of which violence is an element.
Prosecutor General's Office, state's legal practitioners
Marondedze & Mukuku & Partners, 1st
accused's legal practitioners
Messrs Majoko & Majoko 2nd accused's legal
practitioners
