Criminal
Trial
MWAYERA
J:
The
accused was initially charged with murder as defined in s47 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
It
is alleged that on 26 February 2018 and at Mangatu Village, Chief
Marange, Mutare the accused unlawfully caused the death of Tafadzwa
Kahwema by assaulting him several times all over the body and hitting
his head against the wall intending to kill him or realising that
there was a real risk or possibility that the conduct might cause
death and continued to engage in that conduct despite the risk or
possibility thereby causing severe head injuries from which the said
Tafadzwa Kahwema died.
The
accused pleaded not guilty to murder but admitted to having
negligently caused the death of the deceased. The accused tendered a
plea of guilty to culpable homicide as defined in s49 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23].
The
State accepted the limited plea of guilty to culpable homicide.
A
statement of agreed facts summarised the circumstances of the matter
as follows:
On
26 February 2018, the deceased a 13 year old juvenile was sent home
from school for not having a ball point pen. This annoyed the accused
person, the mother of the deceased. The accused then assaulted the
deceased with switches several times all over the body and further
hit the deceased's head against the wall. The deceased sustained
severe injuries from which he passed on.
The
body of the deceased was ferried for post mortem examination.
Dr
T. Javangwe conducted the examination and concluded that the cause of
death was traumatic force, subcutaneous/intramuscular secondary to
blunt force and head injury post mortem exh 1 refers.
Having
been satisfied that the accused assaulted the deceased with switches
several times all over the body, and further that the accused hit the
head of the deceased against the wall in circumstances were she ought
to have foreseen that serious injuries or death could occur liability
squarely attached on the accused.
The
accused further failed to act reasonable by failing to guard against
the possibility of death given the excess of the corporal punishment
imposed.
We
concluded that the accused was negligent in assaulting the deceased
in the manner that she did. We thus concluded the accused was guilty
on her own plea of guilty to culpable homicide. The accused is
accordingly found guilty of culpable homicide as defined in s49 of
the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentence
In
passing sentence we have considered all mitigatory and aggravatory
factors submitted by Ms Jaricha and Mr Musarurwa respectively. We
have also considered the circumstances of the matter and sentencing
principles ably identified by counsel in cases. See S v Phiri
HH116/15, S v Nsoro HH190/16.
The
court in passing sentence has to seek to strike a balance between the
offence and the offender while at the same time tempering justice
with mercy in such a manner as not to make society lose confidence in
the justice delivery system.
It
is mitigatory that accused pleaded guilty as a sign of regretting the
offence. A plea of guilty should be credited for what it is worth and
the sentence to be imposed must reflect the reduction emanating from
such plea of guilty sentence. See S v Makumbe HH39/2013. See also S v
Fergas (1) ZLR 487 @ 493 B the Supreme Court had this to say:
“A
plea of guilty must be recognised for what it is, a valuable tool for
smooth administration of justice while not absolving it will be
rewarded.”
The
accused has been convicted of a grave offence of culpable homicide.
The
penalty provision reflects that a sentence of up to life imprisonment
can be considered in appropriate cases. This is a clear indication
that society and the legislature view the offence as serious.
Section
48(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013
protects the fundamental right to life. This means that no one should
take away another's God given right to life.
The
courts have to weigh in and show that the sanctity of precious human
life cannot be eroded by violent and irrational individuals. The
court is duty bound to mark its abhorrence of domestic violence by
passing appropriate sentences.
The
degree of negligence in this case is very high.
The
accused's conduct bordered on recklessness as she brutally and
viciously assaulted her 13 year old child using switches and further
busting the head against a wall.
The
moral blameworthiness is high given the child looked up to the mother
for protection and support.
The
child had been sent away from school for a ball point pen and for him
to be visited with such a vicious attack by the mother was
unwarranted. The mother had a duty and obligation to maintain the
child. The deceased lost his life at the hands of his mother.
This
is one of the worst type of domestic violence on a vulnerable child
by the parent.
The
courts have to send the message loud and clear that domestic violence
of any nature will not be tolerated but severely punished. A
civilised community should uphold a homely atmosphere which is
peaceful and readily available to resolve differences in a peaceful
manner.
To
severely and fatally assault a child for a pen is unacceptable and
must be condemned.
The
child was subjected to torture both at home and at school. The right
to education was offended by being chased away from school.
Further
the child's rights were crushed by the mother who violently
attacked the child instead of shoulder the duty of care and provision
on herself.
The
irresponsible and cruel conduct by the mother calls for a custodial
sentence. The accused is sentenced as follows:
8
years' imprisonment of which 4 years' imprisonment is suspended
for 5 years on condition accused does not within that period commit
any offence involving use of violence on the person of another for
which she is sentenced to imprisonment without the option of a fine.
National
Prosecuting Authority, State's legal practitioners
Mhungu
& Associates, accused's legal practitioners
