Judgment No. HB 67/15
Case No. HC (CRB) 35/15
Lusulu CR No. 16/12/14
HIGH COURT OF ZIMBABWE
HWANGE 10 MARCH 2015
Miss N. Ngwasha for the state
Mr E. Mashindi for the accused
MAKONESE J: The accused was arraigned in this court on a murder charge. The state alleges that on 29 December 2014 at Chitete 1, Lusulu, Binga, the accused did wrongfully, unlawfully and intentionally kill and murder Linda Bongiwe Manyathela, a female juvenile aged 6 years at the time of her death. The accused pleaded not guilty to the murder charge and tendered a plea of guilty to the lessor charge of culpable homicide. The state accepted the limited plea. We are satisfied that the concession by the state was properly made.
The state tendered a statement of agreed facts (Exhibit 1), with the consent of defence counsel. The statement of agreed facts is in the following terms:
“STATEMENT OF AGREED FACTS
The state and the defence are agreed that the following are common cause being that:
1. Accused resides at his homestead, Chitete 1, Lusulu, Binga and was aged 23 years
at the time of the commission of the offence.
2. The deceased used to reside at Qiniso Sibanda’s homestead, Chitete 1, Lusulu, Binga and was aged 6 years at the time she met her death.
3. The accused is stepfather to the deceased.
4. On the 29th of December 2014 the deceased was left in the custody of accused by
Sithembize Manyathela mother to the deceased.
5. The accused wanted to go to work and he could not find the deceased and was angry.
6. Accused found the deceased at Adam Sibanda’s homestead who is their uncle.
7. Accused beat the deceased with a switch and an unknown object until the deceased became unconscious.
8. The accused thereafter carried the deceased to Monicah’s Sibanda’s homestead who is mother to the accused.
9. The accused left the deceased in the kitchen hut.
10. Monicah Sibanda found the deceased in the kitchen hut and tried to render first aid but the deceased showed no signs of life.
11. The accused person pleads not guilty to murder but to culpable homicide in that he negligently cause the death of the deceased.”
It was clearly unlawful for the accused person to chastise the young juvenile
indiscriminately and all over the body, inflicting serious and fatal injuries upon the defenceless child.
The Post Mortem Report (Exhibit 2) reveals that that the cause of death was:
(a) subarchnoid haemorrhage
(b) head injuries
Dr S. Pesanai is a qualified medical practitioner and is attached to United Bulawayo Hospitals. On 31 December 2014 he examined the remains of the deceased and compiled his findings in the Post Mortem Report number 937/934/14. On marks of violence the post mortem report indicates that the deceased sustained the following injuries; abrasion on the right knee; thigh (4 x 3) cm, Hip (3 x 2) cm, face (4 x 3) cm, temporal region (2 x 1) cm, left face (2 x 2) cm, multiple abrasions on the neck, too small and numerous to measure, bruises on the buttocks and the back. An internal examination by the pathologist reflects that there was scalp haematoma on the left frontal region (3 x 2) cm and extensive subarchnoid haemorrhage. In the opinion of the Doctor, the injuries were consistent with an assault.
On the the basis of the evidence presented before the court we were satisfied that the accused negligently cause the death of the juvenile. We found the accused not guilty of murder and duly acquitted him on that charge. The accused was found guilty in respect of the lessor charge of culpable homicide.
In assessing an appropriate sentence the court took into account all the mitigating factors advanced by the accused on behalf of the accused on his behalf by his legal counsel. The accused was aged 23 years at the time of the offence. The accused is married to the deceased’s mother and they have one child together who is of a tender age of 1 year and 8 months. The accused is the sole breadwinner for his family who survives by performing part time piece jobs. The accused pleaded guilty and showed some amount of regret. He is a youthful offender and lacks maturity. Accused’s moral blameworthiness is however on the high side. He was left in the custody of the deceased. When he could not locate her, he searched for her and eventually found her at Monicah Sibanda’s homestead. He was annoyed by the disappearance of the deceased and when he finally caught up with her he was angry. He subjected to her to a brutal and sustained assault using a switch and an unknown object. He assaulted the deceased indiscriminately and used excessive force. The Post Mortem Report Exhibit 2 confirms that the deceased had multiple bruises and abrasions all over the body. The deceased also suffered subarchnoid haemorrhage. The child must have endured unimaginable pain. It is unconscionable that someone could inflict such injuries on a child. This is the worst form of child abuse. This form of assault on young children goes against all Legal Instruments on the Rights of Children. The assault has no place in a modern society and is barbaric. The courts have noted that cases of child abuse have become common place. Parents who are charged with the duty of looking after young children stand in loco parentis to the minor children. The young girl’s only crime was that she was not at home when the accused wanted to go and work. The court must pass sentences that reflect the seriousness of this type of offence. What is more disconcerting is that upon realizing that the young girl was injured and motionless, the accused carried the child on his shoulder and dumped her at his mother’s homestead. Accused did not bother to render first aid or alert other villagers about the injured girl. The accused fled the scene. A young life was needlessly lost.
The court is of the view that a sentence that would fit the offence and the offender is as follows:
Accused is sentenced to 7 years imprisonment.
National Prosecuting Authority, the state’s legal practitioners
Mashindi and Partners’ the accused’s legal practitioners