MURANGANWA PRECIOUS JOKW
HIGH COURT OF ZIMBABWE
HARARE, 16 June 2021
Criminal Trial Sentence
ASSESSORS: 1. Mr Chivanda
2. Mr Mpofu
B. Murevanhema, for the State
T. S Chinopfukutwa, for the accused
MUNANGATI-MANONGWA J: In this case a 74-year-old man lost his life at the hands of his brother in Mahusekwa area which falls under Chief Nenguwo. The deceased died as a result of an assault upon him by the accused person.
Initially the accused person was charged with murder as defined in s 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The charge is marked as Annex “A.” The accused pleaded not guilty to the charge of murder and tendered a plea of guilty to the lesser charge of culpable homicide. The defence and the state came up with a statement of agreed facts and the matter proceeded on that basis. The statement of agreed facts appears on record as Annex “B.”
The facts of the matter are that the accused who had been away from home for a considerable period of time arrived at the family home where his brother was resident. Whilst discussing family issues a misunderstanding arose resulting in the deceased using a piece of firewood to assault the accused. The accused disarmed the deceased and went away. The two however met each other at a field and the deceased further assaulted the accused with a whip. The accused in turn assaulted the deceased with the piece of wood that he had taken earlier. He continued assaulting the deceased with a switch after the piece of firewood broke. The deceased sustained serious injuries and died a few hours later. The state did not have witnesses who could testify to what actually transpired during the assault. The only available witnesses were the lady who saw the deceased as he lay injured in a field, police officers who received the report of a death and the doctor who carried the post mortem. The postmortem report was produced as exh 1 and the piece of firewood was accepted as exh 2.
The defence counsel and the State counsel agreed that the accused was negligent in his conduct when he severely assaulted the deceased failing to realise that death may result from his conduct hence the accused was liable for negligently causing the death of the deceased. Satisfied that the limited plea to culpable homicide was appropriate in the circumstances the court finds the accused guilty of culpable homicide as defined in s 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In arriving at the appropriate sentence the court considered the mitigatory factors advanced by the defence counsel on behalf of the accused. The court notes that the accused was 32 years old when he committed the offence and at present he is 44 years old. It took 12 years for the matter to be tried and no reason has been advanced regarding why it took so long to have the matter tried. The accused is married with 4 minor children who look up to him for support and the court was informed that the accused’s wife suffers from cancer. He is thus caring for his wife. The accused is employed as a security guard and earns a salary of RTGS$14000. The court also takes cognizance of the fact that he pleaded guilty albeit to a lesser charge but nonetheless saved the court’s time as no witnesses were necessary. It is accepted that he is a first offender. The defence counsel advocated for a short custodial sentence.
The aggravating circumstances which cannot be ignored are that this was a callous attack on a 74-year-old who is the accused’s brother. At that time there was a 40-year age gap between the brothers. The fact that the accused had kept and moved around with the piece of firewood long after he had left the deceased’s homestead points to bad intentions. Whilst the court notes that the deceased was the aggressor, the ultimate force used by the accused on a man of advanced age was not necessary. The force used can be depicted from the nature of the injuries that the deceased sustained. He had a broken leg, a fractured hand, two broken ribs and bruises as the postmortem report exh 1 reveals. These injuries resulted from the indiscriminate blows that the accused inflicted on the deceased. Exibit 2 the piece of firewood is 96cm long and weighs over 1kg. The degree of negligence herein is very high. The accused further abandoned the injured deceased in a field and it is only a passerby who was able to help and ensure that the injured deceased gets to his home. Mr Murevanhema the State counsel was on point when he indicated that had it not been for the lack of witnesses the accused could possibly have been convicted of murder as defined in s 47(1)(b).
No evidence was led that the accused showed any remorse by assisting the deceased’s family in the burial of the deceased or otherwise. Whilst the purpose of sentencing is not to attain retribution, justice must be seen to be done. The accused must be punished for his acts and societal interests have to be taken into consideration lest the justice delivery system is thrown into disrepute. The public must remain confident that once a crime has been committed the perpetrators will be brought to book and dealt with in a manner that is befitting. A life was lost and unnecessarily so. The sanctity of human life is protected by the constitution and once a life is lost there can be no amends. The deceased was an old man and, the accused a fairly young man exerted all his strength on a man who could not match his strength. The accused could easily have ran away. Most damning is the continued assault after the piece of firewood had broken.
Whilst the court takes note of the accused’s family responsibilities, that cannot absolve him from being given a custodial sentence given the nature of the offence that he is convicted of. Equally the presence of provocation can only be mitigatory. Whilst accused persons are quick to raise the court’s attention to the fact that they have a family that looks up to them for sustenance, they forget that their very actions cut short the life of a breadwinner in another family, that of the deceased. Often there is emphasis on the interests of the state and circumstances of the accused person whilst the interests of the family of the now deceased are thrown into oblivion. It is time that the legislature fills the gap in our criminal procedure where the family of the deceased is not given a chance to tell the court the repercussion of the loss of their loved one due to the actions of the accused. South Africa provides for that and so do many other jurisdictions. The often made reference to the societal interests cannot be meaningful if they do not encompass the interests of the deceased’s family. This is because it is them and not the state who suffer as a result of the actions of the accused. The interests of justice can therefore not be adequately catered for if there is no consideration of the effects of the crime on the aggrieved family. Thus to simply speak of society at large is a fallacy. Under African custom the accused’s family was obliged to pay reparations which constituted a number of cattle. This was based on a realization that where a life was lost there was need for compensation of some sort. Suffice to say where loss of money is suffered by a complainant there is provision in the Criminal Procedure and Evidence Act
[Chapter 9:07] for restitution. This shows a realization that behind the state there is a complainant which concept does not subsist where the death of a person ensues. Whilst compensation is not advocated for, the affected family should be given a voice and this is important in ensuring healing of the affected family.
The seriousness of this offence is reflected in the penalty provision which provides for a maximum penalty of life imprisonment. This is not a case where a fine can be imposed regard being made to the degree of negligence. However, it is worrisome that the accused had to wait for 12 years to have his matter tried, irrespective of the fact that he was out of custody. No doubt the suspense he endured cannot be overlooked. Further the accused will live with the fact that he caused the death of his brother and these aspects impact upon the sentence to be met on the accused. Balancing the interests of justice, society’s expectations and the interests of the accused is a difficult process. However, it remains a fact that justice must be tempered with mercy especially after the long wait that the accused experienced before being tried.
Accordingly, the accused is sentenced to 5 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition that the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.
National Prosecuting Authority, applicant’s legal practitioners
Zimbabwe Lawyers for Human Rights, respondent’s legal practitioners