MAWADZE J: This matter brings to the fore the scourge of
domestic violence which has afflicted our society leading to ghastly
consequences, which include the loss of life.
It is saddening to note that spouses are meeting their demise at the
hands of those who have taken vows to love them forever. Domestic violence now
transcends gender and a significant number of males or husbands are now also
victims like in the instant case.
The accused and the now deceased were husband and wife. They had 4
children aged 13 years, 9 years, 6 years and 2 years. The youngest child is a
boy.
On 25 December 2016, a Christmas Day, a day which was supposed to be one
of merry making and celebration by families, turned into a tragic nightmare for
both accused and the now deceased who were at their home at Village 8 Mkwazi,
Mkwasine in Chiredzi. The now deceased decided to slaughter accused's goat for
a feast during the Christmas period. They owned only 3 goats. The accused
refused and a quarrel ensued. The now deceased insisted that he was the father
of the house and would slaughter the goat. He proceeded to sharpen a knife for
that purpose. The accused would have none of it. She ran to the goat pen and
proceeded to open it in order to release the goats. The now deceased followed
her to the goat pen armed with the knife. The accused then took one of the
poles at the goat pen and struck the now deceased several times on the head, on
the back and on the legs. The hapless husband was severely injured and later
taken to Chiredzi District Hospital where he was transferred to Masvingo
hospital and then to Parirenyatwa hospital. The now deceased passed on on 30
December 2016. The cause of death was right epidural haematoma arising from the
assault on the head.
Initially when the trial commenced the accused was facing a charge of
murder. Evidence was led from the couple's daughter, the 13-year-old girl who
was an eye witness to the altercation and assault. Thereafter both the state
counsel and defence counsel found each other after taking into account the
provisions in Part XIV, s 256 to s 259 of the Criminal Law (Codification and
Reform) Act, [Cap 9:23] which deal with the defence of property, in
particular s 259 thereof.
It was clear from the evidence led that the accused resorted to fatally
attacking the now deceased after she had taken all other possible steps to
protect her goat. She had no other means to protect the goat after she tried to
open the goat pen but was prevented by the now deceased. Considering that
accused is simply a poor peasant woman this goat was of vital importance to
her. The family owned only 3 goats.
The now deceased had simply insisted that he wanted to slaughter the
goat despite the accused's protestations and had not offered to compensate her
in any manner. The requirements in s 258 of the Criminal Law (Codification and
Reform) Act, [Cap 9:23] are therefore met. Be that as it may, the means
the accused used to prevent the now deceased from slaughtering the goat were
not reasonable in the circumstances. The accused subjected the now deceased to
a sustained and brutal attack. She used a very big log which she lifted with
two hands to strike the now deceased several times on the head despite that the
now deceased was helpless and did not fight back. The defence of property in
the circumstances can therefore only be partial defence to the charge of murder
as is provided for in s 259 of the Criminal Law (Codification and Reform) Act,
[Cap 9:23]. The accused can thus be properly found guilty of culpable
homicide.
In assessing the appropriate sentence, we have considered that the
31-year-old accused is a female first offender. While s 56 of our Constitution
provides for equality and non-discrimination before the law, it is trite in our
law that female first offenders are treated more leniently than males. In that
regard what can be termed as “positive discrimination” is in order. It is fact
that we have more male prisoners than females in our country despite that women
constitute 52% of our population. It is also not far-fetched that recidivism is
more in males than in females. The accused is now a widow and a single parent,
albeit out of her own making. She now has the burden of looking after their 4
children, a responsibility she cannot outsource to other persons for an
unreasonable long time.
While the accused has been in custody from the time of arrest the
pre-trial period is just about 4 months and is therefore not an important
mitigatory factor. It is however mitigatory that accused will live with the
fact that she is responsible for the demise of her husband. Society may never
forgive her and this stigma may last forever. To make it worse she may have to
explain this uncomfortable fact to her own children. In our view this is some
measure of punishment.
The evidence adduced from accused's daughter shows that the marriage
between the parties has always been a turbulent one. The daughter said accused
and the now deceased were always quarrelling and exchanging blows. This may
explain why this seemingly minor misunderstanding ended up with such tragic
consequences. This dispute may as well have been evidence of a troubled
marriage.
The now deceased from the facts of the matter was unwilling to consider
the accused's protestatations. He insisted that he wanted to kill the goal and
was determined to do so.
In aggravation the court has to consider the sanctity of human life.
While the offence of culpable homicide is premised on negligence, a life was
needlessly lost over a simple issue involving a goat. The accused being a woman
is not generally expected to act in such a violent manner but to value life and
act with restraint. The said goat can never be equated to human life.
It is aggravating that this offence was committed in the full view of
the couple's 13-year-old daughter. This should have been a very traumatic
experience to her.
It is apparent that the accused was determined to inflict serious harm
upon the now deceased. A fellow woman and neighbour Betty Mudzingwa could not
restrain the accused. As already said the extent of brutality exhibited by the
accused is shocking to say the least. In that regard accused deserves to be
punished. This court has a duty to ensure that cases of domestic violence which
often lead to loss of life are never condoned. The accused clearly failed to
live up to the standard expected of a reasonable person.
In all the circumstances the following sentence would meet the justice
of the case.
The accused is sentenced to 4 years imprisonment of which 1 year imprisonment
is suspended for 5 years on condition 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. The effective sentence is 3 years imprisonment.
National Prosecuting Authority, counsel for the State
Ruvengo, Maboke and Company, pro deo counsel for the accused.
