This matter was referred for review by the scrutinizing magistrate who, on the facts of the case, was unhappy with the propriety of the conviction. The scrutinizing magistrate questioned why the accused person was charged and convicted of culpable homicide when death arose as a result of the shot that was fired by the policeman.

The issue that confronts me is to determine whether, on the facts, the accused person was negligent, and if so, whether death was reasonably foreseeable.

ROPER J stated that:

"Rex v Meiring (1927 AD 41) establishes, however, that there is no difference between the two aspects of liability for negligence. In criminal cases stronger proof is required than in civil cases, but the test of liability is the same. The question, therefore, is whether the death of the deceased was the result of the negligence of the appellant either alone or in combination with that of Basson. If the deceased had been walking beside the roadway at the scene of the collision, and if, in consequence of the collision and the appellant's resulting loss of control, the lorry had run off the roadway and knocked him down at the spot, I think there would have been no doubt that his death was a direct result of the collision which had been brought about or contributed by the appellant's negligence. Does it make any difference that he was run down approximately sixty yards further down the road? I am unable to see that it does."

CHINHEGO J, with the concurrence of MUNGWIRA J, in..., stated that:

The principles that emerge from these., cases are that conviction for culpable homicide is founded firstly on proof of negligent conduct, and secondly on foreseeability of death arising from that conduct. The concept of foreseeability is expressed at times as the natural and probable consequence or as the direct result of the act of commission or omission that the accused fails to guard against which results in death.

In casu, it seems to me that the accused took a deliberate and conscious act to disobey the police that night. His actions in failing to stop were grossly negligent. In this instance the greater misdeed incorporates the lesser. The accused was, therefore, negligent in that he created a dangerous situation by driving off from the roadblock instead of stopping as directed by the police. The State case, in my view, flounders on the aspect of the foreseeability of death arising from his failure to obey the instruction to stop. It was at night. The facts are silent on whether he was aware that the police, who stopped him for the third time before the shooting, were armed. In any event, the reasonable man would not expect an armed policeman to shoot at a moving lorry, with passengers at the back, in a bid to stop the driver. The death of the deceased was thus caused by the policeman and not by the accused's manner of driving.

There can be no question of accused one being found guilty of murder per se, as urged by the State, but because other than the testimony of the accused one himself there is no evidence which could be relied upon to counter the accused's evidence as regards what happened at the scene of the crime. Whilst we are not obliged to religiously accept everything the accused said, we are enjoined to give him the benefit of the doubt.

Whilst accused two would want the court to believe that he was just a passive or innocent bystander whilst the first accused meted out punishment on his enemies, this suggestion did not impress us as a court.

On 6 April 2008, the accused, who was 17 years old and in the company of his cousin, the late Trust Macharangwanda, approached the deceased and accused her of practicing witchcraft and being responsible for death and illnesses in the family.

The deceased, who was 69 years old, protested her innocence and suggested that the accusations required the presence of family elders. The result was a combined assault initiated by Trust Macharangwanda and joined in by the accused. The two randomly assaulted the deceased using two sticks leading to the subsequent death of the deceased.

The post mortem report compiled by Dr David Tarumbwa recorded that there were multiple bruises and abrasions on the deceased's body. The doctor also observed and recorded the deceased had sustained a fractured occipital skull which was depressed with massive haemorrhage. The doctor concluded that the cause of the deceased's death was the head injury caused by the assault perpetrated on her....,.

The viva voce evidence of Esinath Mwareka took us through how the assault itself was carried out. The accused also testified on the assault itself.

We are satisfied that despite some unconvincing aspects of her testimony, like her indifference in describing to the court's satisfaction the type of switch used by the accused, Esinath's version of events leading to the death of the deceased was quite credible. Her version was more revealing as opposed to the version given by the accused person which was characterised by rough edges.

We found it to have been quite revealing and significant that the accused's version of what transpired, as explained by him in court, almost three (3) years after the event, was at variance with his summary of events given on 26 April 2008 at Mukurasine Police Station and subsequently confirmed at Chiredzi Court on 26 June 2008. We are satisfied his explanation in Court was calculated to mislead the Court and therefore we had no hesitation in rejecting it.

From the agreed evidence, the prosecution advocated for the accused to be found guilty of the crime of murder with constructive intent whilst the defence passionately argued that the evidence suggested no more than the commission of the crime of culpable homicide.

From a practical point there is a very thin line between murder with constructive intent and the offence of culpable homicide but the distinction must and has always been maintained.

For murder with constructive intent to be returned as a verdict the issue which must occupy the mind of the Court is whether, as a matter of inference deriving from the set of facts accepted by the Court, it can be said the accused foresaw that his conduct would result in the death of the deceased. An accused can only be convicted of murder if the only reasonable inference that can be drawn from the facts proved is that the accused had legal intention to do so. The test becomes a subjective one. The Court is enjoined to take into account factual evidence which bears upon and could have affected the accused's perception, powers of judgment, and state of mind, deriving from such factors like the level of the accused's intelligence, age of the accused person, personality etc - the list is endless.

If the Court concludes that the accused could not have foreseen the possibility of death but that he should have foreseen it (relying on the reasonable man's test) and that a reasonable man would have guarded against it, the correct verdict must be culpable homicide.

It must be emphasised that in borderline cases, the Court must lean in favour of the verdict of culpable homicide and this approach appears to be influenced by the time-honoured and well cherished principle of our approach that the accused, as opposed to the State, must generally be granted the benefit of doubt.

It is never an easy walk.

In the instant case, the Court has had the benefit of seeing one of the sticks used. We have assessed the accused's level of intelligence, age at the time of the committing of the offence, and the fact that there is overwhelming evidence that the accused was not himself in control of the situation that led to the accused's tragic assault.

We are in agreement that it cannot be concluded, with a degree of certainty, that the accused could have foreseen that his involvement in the assault of the deceased would ultimately lead to the deceased's death.

However, it is our firm view that although the accused did not foresee death as a result of his conduct, a reasonable man placed in the shoes of the accused person would have foreseen that subjecting a sixty nine year old woman to the assault with the sticks or switches described to the Court would have resulted in her death and that the accused should have guarded against it.

He did not do so and we are enjoined to return a verdict of guilty of culpable homicide.

Verdict – Not guilty of murder but guilty of Culpable Homicide….,.

The conduct of some of our traditional healers and self proclaimed profits has not escaped our attention. So much confusion and hatred are sometimes as a result of the conduct of such traditional healers.

The accused was charged with the crime of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 25 April 2007 at 19:00hrs she unlawfully picked up a knife and stabbed Stewart Pilate Mhlanga twice with the knife - once on the left side of the chest and once on the neck - resulting in the death of the deceased.

She pleaded not guilty.

The accused gave evidence for herself.

She described how she had endured physical abuse at the hands of her husband. She had had to go back to her parents on no less than five occasions in order to escape this abuse. Relatives had tried to intervene, including her sister-in-law and others, but no avail. This day was just another example of what she had to endure. What triggered this tragedy was a knock to the door which her debt-ridden husband refused to answer; preferring to send her so as to off his creditors. But this was an innocent person seeking to secure his empty containers from the deceased's elder brother. He had asked her to get this message to her sister in-law. When she did so and went back to her quarters all hell broke loose. The deceased assaulted her. She cried out for help. The first State witness came and restrained him. No sooner had she left did the assault resume. In the attack which followed he struck her using his hands and fell her. He then got her head between his legs and began to pull off her braided artificial hair. She felt excruciating pain all over. She reached for a cooking stick from the push-tray nearby and hit him with it - without effect. He continued with his murderous attack. She then reached for what she thought was another smaller cooking stick which remained on the push-tray. She struck as he partially covered in a bending position as she lay in agony. He released her indicating that she had injured him and if he caught her he would kill her. She ran for dear life clutching the knife as she ran. She only realized she still had the knife after she had spoken to her neighbour Harusekwi Hedegwe.

She regretted the death of her husband but insisted that she acted in self-defence and defence of her child over who she had fallen during the attack. She used only the force necessary to repel the attack.

Our view of the evidence is that the following is established by the evidence.

The deceased was in the habit of physically abusing his wife. Over time, they had physically exchanged fist cuffs. The accused would leave the matrimonial home as a result. On this occasion she did not manage to escape his clutches. She fought back. In this fight, she resorted to whatever means available to her. She picked a kitchen knife which she used to stab him with. She directed the blow to the neck. It may well be that in an effort to ward off a murderous attack on her person she did not have the luxury of choice. But she sealed her fate by her decision to use a knife in circumstances where a reasonable woman in her position would have realized that doing so may result in fatal injuries to the deceased.

This decision – to pick a knife – constitutes a negligent step in that she then used more force than was necessary to repel the attack upon her person. She decided to stab him as an act of self-defence.

We are satisfied that she did not realize the risk inherent in the use of the knife but we also hold that that failure was negligent on her part. As such, she is found not guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]  but is guilty of contravening section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State then called the evidence of the accused's sister-in-law, Mary Mudyanebanga. She shared the same house with the accused and her late husband. Their respective husbands were brothers. Her evidence was to the following effect.

The accused had come and knocked at her door indicating that somebody had come in search of containers from her husband. Soon after the accused returned to her room, in the same house, she heard her calling for help. She rushed into the accused's room and found her and the deceased, her husband, fighting. She restrained the deceased, asked them why they were fighting. Upon being assured that they will not fight she went back to her room. A while later, she heard someone cry from their room and the sound of footsteps running down the passage. When she got out of her room she saw the deceased, who was bleeding, going down the passage. He was in pain. She ran out to call for help. When she came back she found the deceased lying dead outside the house.

She did not witness the struggle. She did not see from where the deceased was bleeding.

Under cross-examination, she confirmed that the deceased and the accused had fought frequently. On each occasion of such fights the accused would retreat to the safety of her maiden home. According to her, the deceased was a man of violent disposition although he was smaller in stature to the accused.  She also stated that their room was lit by an electric bulb.

The appellant appeared in the Regional Court facing a charge of culpable homicide to which she pleaded not guilty but was found guilty despite her protestations….,.

Aggrieved by the decision of the Regional Court she appealed to this court against both conviction and sentence.

After listening to arguments by both her defence counsel and the respondent's counsel we dismissed the appeal in its entirety and indicated that our full reasons for so doing would follow. These are they.

In her grounds of appeal against conviction the appellant complained that the Regional Court did not establish a nexus between the death of the deceased and her actions, more particularly in that:-

“1. The appellant was in lawful pursuit of the deceased who had broken into her home. At all material times, the appellant's intention was to apprehend the deceased;

2. The evidence presented did not show that the appellant ought to have foreseen that when in lawful pursuit of the deceased, he would enter the dam to avoid apprehension;

3. The choice to enter the dam or not was made deliberately by the deceased juvenile. In this regard, the deceased could have continued on land and gone to his home;

4. There is no evidence that the appellant prevented the deceased from coming out of the water. In the circumstances, therefore, the honourable court erred in holding that the appellant had prevented the deceased from coming out of the dam;

5. The honourable court a quo erred in finding that the appellant had thrown stones at the deceased when the sole State witness failed to state in clear terms how the appellant had picked up stones in the water while holding her shoes. The State had an opportunity to call further evidence from one Thubelihle Ndlovu to clarify on this issue but did not do so. With respect, there is nothing to choose between the version of the appellant and the State witness, moreso when the honourable court a quo did not make any findings on the appellant or witness' credibility and demeanor;

6. Alternatively, the State did not establish that the effect of the alleged wrongful act of throwing stones towards the deceased was the drowning of the deceased. In this regard, the record indicates that the deceased went under the water twice, after that stones had been thrown towards him, and that he drowned when he went under water for the third time when the appellant was on the other side of the dam;

7. Further, the State did not place before the honourable court a quo sufficient detail about the size and depth of the dam, the deceased or appellant's familiarity with it. This would have informed the court on the foreseability of death occurring. The evidence suggests that neither the deceased nor the appellant appreciated the likelihood of the deceased drowning. This would explain why the appellant ran to the other side of the dam to wait and apprehend the deceased upon his emergence from the dam; and

I wish to emphasize, as correctly pointed out by the trial magistrate, and reinforced by my brother judge, that “an intention to cause an accident” is never an issue in a culpable homicide case as liability stems from an inference of negligence deriving from proven or established facts. As aptly observed by COOPER, Motor Law, Volume Two, Principles of Liability (published by Juta)…, -

“The court assumes the role of the reasonable man - '…, and decides what the reasonable man would regard as just on the facts of the case. The hypothetical “reasonable man” is personified by the court itself. It is the court which decides: Fibrose Spolka AK' cyjna v Fairbain Lawson Combie Barbour Ltd (1943) AC 32.'”

It should be noted that the test of negligence in criminal cases is the same in civil cases hence in a criminal matter reference can be made to a civil matter and vice versa.

The accused stands convicted, on his own plea of guilty, to a charge of culpable homicide. He initially pleaded not guilty to a charge of murder that was later reduced to the lesser charge of culpable homicide with the consent of the State.

The agreed facts are that the deceased and the accused person picked up a quarrel at a beer drink at Farm 182, Chesa, Mount Darwin. The drunken brawl broke up into a fist fight in which the deceased was overpowered and he fled. He later returned to the scene armed with a brick and a stick with which he attacked the accused. He threw the brick at the accused but missed. Undeterred, he advanced towards the accused and attacked him with the stick on the head. The accused sustained moderate injuries on the head.

The doctor's report, exhibit 4, shows that the accused sustained head injury, swollen eyes, bruised face and soft nose.

Upon being attacked, the accused fought back and managed to disarm the deceased dispossessing him of the stick. He then set upon the deceased with the same stick culminating in the deceased's death….,.

The accused has been arraigned before this court on a charge of murder, it being alleged that on the 12^th December 2006 at Village Mumango, Chief Mahlebadza, Mberengwa, the accused person wrongfully and unlawfully and with intent to kill Siphephethiwe Mpesi a female adult aged 61 years by striking her on the stomach with a brick thereby causing her injuries resulting in death.

The accused pleaded not guilty to the charge of murder and a plea of not guilty was accordingly entered. The accused, however, tendered a limited plea of guilty with respect to culpable homicide. The State conceded that the accused was negligent in his actions and accepted the accused's plea of culpable homicide. It is a clear view that the concession by the State was properly made.

The facts of this case are very sad.

The accused person, who was aged 39 years at the time of the offence, struck and killed his biological mother with a brick. The deceased sustained injuries which led to her death. The State and defence tendered into evidence a Statement of Agreed Facts which was marked as exhibit 1. The contents of the Statement of Agreed Facts are as follows:

“(1) The accused person, Witness Sibanda, was aged 39 years at the time of the commission of the alleged offence. He resides at Village Munaga, Chief Mahlebadza, Mberengwa.

(2) The deceased, Siphephethiwe Mpesi, was aged 61 at the time of her death and also resided in the same village as the deceased who was accused's biological mother.

(3) On the 12^th December 2006, and at Garai Mpanza's homestead, the deceased had a misunderstanding with Garai Mpanza who is accused's father.

(4) After Garai Mapanza had left the homestead the accused sought to inquire from his mother the cause of the quarrel between her and his father.

(5) Such an enquiry by the accused enraged the deceased to the extent that a quarrel ensued between the two of them.

(6) In the midst of the quarrel, and out of anger, the accused picked up a brick and threw it at the deceased who was struck in the abdomen causing her internal injuries which later led to death.

(7) It was not the intention of the accused to kill his biological mother but it happened accidentally.

(8) The deceased was first ferried to a local clinic whereupon she was transferred to United Bulawayo Hospitals where she died. On the 28^th December 2006, Dr Sanganayi Pesanayi examined the deceased's remains and concluded that the cause of death was:

(1) Septicaemia;

(2) Peritonitis;

(3) Laporatomy done for perforated bowel;

(4) Assault.

(9) The accused accepts the evidence of State witnesses and the contents of the Post Mortem Report as well as the medical Affidavit of Dr S. Pesanai. The accused denies having an intention to kill in either form of dolus directus or dolus eventualis. Rather, the accused acknowledges that through his conduct he might have caused the death of the deceased.

(10) The State concedes to the fact that accused was negligent in his actions and therefore accepts accused's plea of culpable homicide.”…,.

The defence counsel confirmed that all the essential elements of culpable homicide had been explained to the accused who understood then and further that the limited plea of guilty to culpable homicide was genuinely made.

We therefore found the accused not guilty on the charge of murder and accordingly acquitted him. We found him guilty on the lesser charge of culpable homicide.

The accused is facing a charge of murder, it being alleged that on the 13^th September 2011 and at Village Balapa, Headman Sikombingo, Chief Sogwala, Lower Gweru, the accused wrongfully and unlawfully and with intent to kill Mkhumbuzi Bhebhe, a male adult aged 20 years, did stab him with a knife on the left side of the chest, realising that there was a real risk that his conduct may cause death, thereby inflicting injuries that resulted in his death.

The accused pleaded not guilty to the charge of murder and tendered a limited plea of culpable homicide. I entered a Not Guilty plea with respect to the charge of murder.

The State and defence tendered with evidence, as exihibt 1, a Statement of Agreed Facts. The facts that are common cause in this matter are that on the day in question the accused person, who was aged 16 years at the time, stabbed the deceased once with a knife blade in the chest thereby causing injuries that led to the death of the deceased.

It is not in dispute that at around 2130 hours the deceased met the accused person along a footpath close to Village Mgatshwa. The accused was coming from a church service in the company of his friends, namely, Jimson Ngwenya, Prince Dube, Luckyboy Mtasa, Prosper Mbambo and Admire Sibanda. The deceased indicated to the accused and his friends that he had observed thorns in the mortar he had prepared for moulding bricks and suspected that it was of them who had put the thorns. This resulted in an altercation and the deceased slapped the accused on the face. The deceased and the accused exchanged blows but ultimately the deceased overpowered the accused. This resulted in the accused producing a short sharp knife blade which he used to stab the deceased once in the chest. The stab wound led to fatal consequences. The deceased fell down after walking a few metres in the direction of his home. He got up and tried to walk but fell down again. Sipho Mpofu and Jimson Ngwenya then ferried the deceased to his home. The deceased was unable to speak but was groaning. He later died that same day….,.

Having examined the evidence led by the State, and the admitted evidence, we concluded that the State had properly conceded that limited plea of guilty with respect to culpable homicide was appropriate.

The State…, led evidence from Shadreck Sibanda a cousin of the deceased. 

He said on the fateful day he went to Gijima Nite Club with the deceased and two other young men during the early hours of the morning. He did not have a watch but he thought it was around 3am. He said after he had taken about three (3) pints of beer the deceased suggested that it was time to go back home.

They went out of the night club. The deceased walked in front with the girl called Cynthia while he walked behind with two young men. They were going to look for transport to go home. As they were walking, the witness heard footsteps of a person who ran past them towards the deceased and Cynthia. It was the accused. When he caught up with them, the witness heard him saying words to the following effect – “Samantha or Cynthia is mine.” The deceased replied saying – “No, I am taking her home.” The witness said he and the two young men moved faster to get to where this was happening and when they were ten (10) paces away the accused grabbed hold of the deceased. When the deceased was in the process of turning to face the accused, the accused then stabbed him on the thigh – on the outer aspect of the thigh towards the back. The deceased fell down. The police on cycle patrol arrived and summoned an ambulance.

The witness said there was no fist fight between the accused and the deceased. He said that suggestion was false.

He said the accused was alone when he ran past them to go and confront the deceased. He said it was not correct to say the deceased was the aggressor as he was confronted by the accused. It was not true that the accused had been knocked down by the deceased who then pinned him to the ground.

He said that suggestion was clearly false….,.

The court makes the following specific findings:

(i) That the accused was the aggressor.

(ii) At no stage was he pinned to the ground.

(iii) He stabbed the deceased as he was about to turn and face him.

(iv) The accused may have been under the influence of alcohol but not to an extent of not knowing what he was doing.

(v) He was able to run and follow the deceased and Cynthia.

(vi) He remembers clearly what took place.

(vii) The deceased did not provoke the accused.

(viii) The accused was not defending himself from anything as he was, in fact, the aggressor.

But what is the accused guilty of?

He stabbed the deceased on the thigh with a lethal weapon. Is it in the ordinary human experience that when one stabs the other with a knife on the thigh death would result?

The thigh is not one of those vulnerable parts of the human body. It is a different story if one used a lethal weapon on a vulnerable part of the human body. The accused chose the thigh. Did he reasonably foresee that death would result?

I think not. He would not have foreseen that an artery in the thigh would be perforated.

He is guilty of causing the deceased's death negligently. I would, in the result, find him guilty of culpable homicide…,. 

The accused is charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged that on 27 March 2012, at Chiunda Village, Chief Negomo, in Chiweshe, the accused unlawfully assaulted Lucas Zariro with a home-made standard brick on the head knowing or realizing that there was a risk or possibility that Lucas Zarira might be killed and continued to engage in the conduct resulting in Lucas Zarira's death.

The accused is married to the now deceased Lucas Zarira's elder brother, one Zivanai Zarira, and she resided at the same homestead with the now deceased. At the material time, the accused's husband was unwell.

It is alleged that on 27 March 2012, at about 20:00 hours, the accused and the now deceased had a misunderstanding over a debt the now deceased owed the accused resulting in the two exchanging harsh words. It is alleged this degenerated into a physical fist fight culminating in one Patience Muzenje restraining them. It is alleged that thereafter, as the now deceased was walking away from the scene, the accused picked a home-made standard brick and used it to strike the now deceased on the left side of the head inflicting a serious injury which caused the now deceased to fall down and to bleed profusely. The now deceased was rushed to the local Dambo clinic and thereafter referred to the Howard Mission Hospital where he died while admitted the following day on 28 March 2012….,.

In her defence, which the accused also later incorporated as part of her evidence, the accused stated that on the day in question, the now deceased was drunk after having drunk the illicit brew called Kachasu (some traditional alcohol). According to the accused, the cause of the altercation was not a debt but that the now deceased was alleging that the accused was not giving proper care to her sick husband who is also the now deceased's elder brother. The accused said it was the now deceased who started to assault her all over the body with clenched fists and booted feet. The accused said no one at the homestead came to her rescue. The accused said the now deceased armed himself with a big piece of firewood and was now bent on intensifying his ferrous attack upon the accused who had her baby with her. The accused said she then decided to act in self-defence, as explained in her confirmed warned and cautioned statement, by striking the now deceased with a brick.

The accused, in her Defence Outline, denied causing the now deceased's death and incorporated her confirmed warned and cautioned statement.

In support of its case, the State called the following witnesses:-

1. Irene Kasingarigwi, a nurse at Dambo Clinic.

2. Dr Paul James Thistle who was then based at Howard Mission Hospital.

3. Margreth Mpadzula, a nurse at Howard Mission Hospital.

4. Alois Chitanda, a nurse at Howard Hospital.

5. Patience Muzenje who stayed with the accused and the now deceased.

6. Levious Kondowe, a neighbour of both the now deceased and the accused, and was the now deceased's friend.

7. Dr Blessing Tachiona then based at Concession Hospital, who carried a post mortem and compiled the report….,.

The following relevant exhibits were produced:-

Exh 1 – the post mortem report by Dr Tachiona, dated 1 April 2012, which shows he carried out an external post mortem and concluded that the now deceased, who was 32 years old, died as a result of head injury secondary to trauma.

Exh 2– the Accused's confirmed warned and cautioned statement in which the accused said:

“I have understood the caution of the offence. I admit the allegation of striking the now deceased with a brick that caused deceased his death. I struck him after he assaulted me while strapping my baby, therefore I was afraid he could injure my baby. That is all.”

Most of the facts of this matter are common cause and we believe there is no useful purpose to be served by summarising and analysing the evidence of the witnesses which is not contested.

It is not disputed that the accused and the now deceased had a misunderstanding which led to a fight on 27 March 2012. The dispute leading to the quarrel is not clear. The State alleges that it was a debt owed to the accused by the now deceased, but the accused said it was because the now deceased alleged she was neglecting her sick husband.

In our view, the reason for the altercation is immaterial to the issues to be resolved.

It is common cause that it is the now deceased who approached the accused at her fireplace outside her hut and started to assault her. There is a dispute as to whether the accused was strapping her baby or not. The manner of the alleged fight is in issue. However, it is not disputed that the accused picked a standard home-made brick from the fire place and struck the now deceased on the left side of the head. The nature and extent of the injury has been put into issue.

The evidence of the witnesses, which is uncontroverted, is that after the now deceased had been injured he was ferried to the local clinic that night on a bicycle by his friend, Levious Kondowe, and his brother, Zivanai Zarira. As confirmed by Zivanai Zarira, he, together with the now deceased, lied that the now deceased had been injured after he fell and hurt his head on the door step. This is confirmed by Levious Kondowe and Irene Kasingarigwi, a nurse at Dambo Clinic. According to Zivanai Zarira, the reason for this lie was twofold; firstly, it was to ensure that the now deceased would be treated urgently without first having to report to the police, and, secondly, to protect his wife, the accused, as he did not anticipate that death would result. This false medical history was recorded at the local clinic and relayed to Howard Mission Hospital where the now deceased was referred and admitted.

It is not in dispute that the now deceased, on the same night, on 27 March 2012, was attended at the local clinic and referred to Howard Mission Hospital where he was admitted on 28 March 2012 at about 05:00 hours. The accused through, her legal practitioner, made an  issue about the delay between the time the now deceased left the local clinic on the night of 27 March 2012 and the time he was admitted at the Howard Mission Hospital. We, again, did not find this material to the issues to be determined by the court. The fact remains that the now deceased was admitted at Howard Mission Hospital in the early hours of 28 March 2012. Sight should not be lost of the fact that witnesses said they had to walk some long distance in order to find transport to hire to ferry the now deceased to Howard Mission Hospital. The evidence led shows that the now deceased was admitted at Howard Mission Hospital at about 0500 hours after which he was attended and taken to the theatre where he was released back into the male ward at about 1100 hours. It is not in issue that the now deceased passed on two hours later that day at about 1300 hours at the hospital.

As per Zivanai Zarirai's evidence, he collected the deceased's body for burial at their village without advising the police, and still living the lie that the now deceased had injured himself on 29 March 2012.

The uncontroverted evidence is that on 30 March 2012, the police, through Cst Karenga, stopped the burial of the now deceased. According to Cst Karenga, this was after a local villager left an anonymous letter at Gweshe Police Base indicating that the now deceased had been assaulted and died from injuries inflicted and that the relatives were covering up the matter and proceeding with the burial without the police's involvement. It is not in dispute that through Sgt Muzenda police stopped the now deceased's burial and through investigations established the truth that it is the accused who had hit the now deceased with a brick inflicting the injury linked to the now deceased's death. The accused was then arrested and the deceased's body taken for a post mortem examination which was done on 1 April 2012.

What is in issue in this matter is the circumstances under which the now deceased was hit with the brick, the nature of the injury inflicted, the cause of death, and the accused's criminal liability. We now proceed to deal with these issues….,.

The nature of the injuries and the cause of death

In terms of the description and extent of the injury we have to refer to the evidence of the witnesses who were with the now deceased on 27 March 2012 and the medical staff who attended to him.

Patience Muzenje, who witnessed how the now deceased was injured, described the injury inflicted as very serious as severe force was used causing the now deceased to fall down bleeding profusely to the extent that the accused was still shocked and remained standing a distance away from the fallen deceased. Zivanai Zarira, the accused's husband, described the injury as a deep long cut on the left side of the head and that blood was oozing out of the wound. Levious Kondowe, a neighbour and friend of the now deceased, simply described the injury on the head as serious and that he poured water on the head and bandaged the now deceased in a bid to stop the bleeding before taking him to the local clinic.Irene Kasingarigwi, a nurse of Dambo Clinic who first attended to the now deceased, told the court that the now deceased's clothes were soaked in blood and that he had a fresh deep wound on the left side of the head. Her evidence is that she bandaged the wound to stop bleeding and administered amoxicillin, an antibiotic, and paracetamol, a pain killer. There was no ringer lactate used to mitigate dehydration as it was clear the now deceased had lost a lot of blood. She was also unable to administer TT medicine to prevent tetanus as it was unavailable at the clinic. However, she said after attending to the now deceased for about 30 minutes she immediately referred him to a bigger hospital, Howard Mission Hospital, due to the severity and nature of the injury. Margret Mpadzula, the first nurse to attend at the now deceased at Howard Mission Hospital, told the court that the deceased, on arrival, was unable to talk. His clothes were soaked in blood and had a bandage on the head which was also blood-soaked. She observed that the now deceased had a deep cut on the left side of the head and due to the serious nature of the injury she immediately called Dr Thistle who immediately told her to apply the pressure bandage, put the now deceased on the drip and immediately took him to the theatre for immediate attention.

Dr Thistle is the one who took the now deceased to the theatre. His evidence is that the now deceased had a deep sharp laceration on the scalp which was about 5cm long and about 1½ cm in depth. He observed that the wound penetrated an external tissue and the scalp bones which had caused the head to be swollen. Dr Thistle explained how he treated the now deceased on an emergency basis. He said he administered intravenous fluids as the now deceased had apparently lost a lot of blood due to excessive external bleeding which he estimated to be about 10% of the blood in the body. The Doctor explained that he applied the pressure bandage to stop the bleeding and took the now deceased to the theatre where he sutured the wound after which the external bleeding stopped. The now deceased, who was now stable, was referred back to the ward from the theatre. This was confirmed by Alois Chitanda, the nurse who attended to the now deceased when he came back from the theatre, that the now deceased was stable as his temperature and blood pressure were normal. The sutured wound was no longer bleeding. He however said within 1½ hours the now deceased's condition deteriorated and he passed on within that period while in the ward.

In our view, the nature of the injury sustained by the now deceased is clear. It was inflicted by the accused with a home-made standard brick which was on the fire from a close distance of about 3m. The now deceased was hit by the sharp edge of the brick in view of the nature of the injury, which was a sharp deep cut on the left parietal region. The wound was 5cm long and 1½ cm deep penetrating the scalp bones. It is the extent of the depth of the wound which was never established or whether the skull was fractured or cracked. The injury caused the now deceased to lose a lot of blood.

This leads us to the next issue which is the cause of death.

It cannot be disputed that there is clearly a causal link between the assault of the now deceased and his death. According to Dr Thistle, the likely cause of death was internal bleeding due to the head injury. Dr Thistle discounted that death could have resulted from external bleeding as the loss of blood was just about 10%, which is not fatal moreso as the now deceased was admitted while alive and conscious despite the initial loss of blood due to external bleeding. Dr Thistle was certain that it is the internal bleeding which affected the brain which was fatal. The same view was shared by Dr Tachiona who did the post mortem. We therefore have no reason not to accept this clear medical evidence of the two doctors. 

The now deceased therefore died from the head injury inflicted by the accused with the brick….,.

The last issue to consider is whether, on the evidence on record, the accused is guilty of contravening section 47(1)(b) of the Code [Chapter 9:23] or any other permissible verdict.

Our view is that we were not satisfied that it had been proved beyond reasonable doubt that when the accused picked the brick and threw it at the now deceased she realised that her conduct may possibly result in the death of the now deceased. It would appear that the accused acted in the heat of the moment. The now deceased was the aggressor and had plummeted her while seated. The urge to revenge clouded her judgment and as the now deceased walked away she picked the brick. In our view, the accused acted negligently by failing to realise that death may result if she threw a brick to the now deceased, aiming at the head carelessly, with severe force. We are of the view that the accused cannot be properly convicted of contravening section 47(1) of the Code [Chapter 9:23]. The evidence proves, beyond reasonable doubt, that the accused is guilty of contravening section 49 of the Code [Chapter 9:23] – the permissible verdict of culpable homicide.

Verdict

The accused person faces a charge of murder in contravening section 47 of Criminal Law (Codification and Reform) Act [Chapter 9:23], in that on the 22^nd day of June 2012, and at Sihlengeni Primary School in Nkayi, in Matebeleland North, the accused did wrongfully, unlawfully and intentionally kill and murder Nqobizitha Nkiwane a male adult during his lifetime.

The accused pleaded not guilty to this charge and tendered a guilty plea to a lesser charge of culpable homicide. The State counsel accepted this limited plea and a statement of agreed facts was then tendered. It was marked Exhibit 1 and reads as follows:-

“1. Accused resides at Lackel Nkomo's homestead, Sihlengeni, Nkayi and was aged 25 years at the time of the commission of the crime.

2. The deceased used to reside at Godone Nkomazana's homestead and was aged 19 years at the time he met his death.

3. The accused and deceased were not related but stayed in the same area.

4. On the 22^nd of June 2012, accused and deceased were at a soccer training session at Sihlengeni Primary School grounds.

5. During the training session, a misunderstanding erupted between accused and deceased over a ball tackle.

6. As deceased moved away from accused, the accused pulled out an okapi knife from his trouser pocket and stabbed deceased once on the left side of the chest.

7. Deceased died on arrival at Dakamela Clinic.

8. The accused person pleads not guilty to murder but pleads guilty to culpable homicide in that he negligently caused the death of the deceased.”…,.

The accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 14 January 2016, at Gutsaruzhinji Village, Mkwasine, the accused caused the death of Tizirai Mutendera by hitting him with a stone on the right earlobe intending to kill the said Tizirai Mutendera or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility.

The 29-year-old accused and the now deceased, who was 42 years old, were brothers. They lived separately in the Mkwasine area.

On 14 January 2016, there was a traditional beer ceremony at the accused's homestead where members of the Mutendera family or clan, including the now deceased, were in attendance. There were also other close relatives and neighbours. From the evidence led before us, an altercation arose between the accused's wife, Elizabeth Mavhu, and the accused's sister, Vongai Mutendera. This altercation was centred on the allegation that sometime in the past Vongai Mutendera had stolen some clothes belonging to the accused's wife. This altercation sucked in the accused who intervened on the side of his wife.

The State alleges that the accused assaulted his sister, Vongai Mutendera, who fled and sought refuge at one Simplicio Matsengo's homestead. It is alleged that upon his return, the accused also assaulted his mother who had tried to restrain him and this resulted in a misunderstanding between the accused and the now deceased who took exception to the accused's conduct. The State alleges that the now deceased took the accused's amplifier and said he would only return it when the accused paid some token to appease their mother whom the accused had assaulted. It is the State case that this angered the accused who then intercepted the now deceased who was leaving the accused's homestead. The accused is alleged to have picked a stone and threw it at the now deceased at a close range hitting him on the right earlobe. The now deceased is said to have collapsed, bleeding profusely, and was unconscious. The now deceased was taken to a local clinic the next day and later transferred to Chiredzi District Hospital where he subsequently died due to the head injury.

In his Defence Outline, the accused said the now deceased arrived at the accused's homestead on the day in question already drunk in the morning. He said his sister, Vongai Mutendera, and an aunt, Serudzai, later arrived in the afternoon after which they engaged in an altercation with the accused's wife over some clothes belonging to the accused's wife which Vongai Mutendera had previously stolen. The accused said when these two attacked his wife he rushed to rescue his wife and his mother also got entangled in this altercation. The accused said the now deceased then joined in the dispute alleging the accused was not respecting the now deceased and wanted to discipline the accused. The accused said the now deceased proceeded to hit him with clenched fists and proceeded to a pile of firewood intending to pick a piece of firewood so as to assault the accused. Due to pain already inflicted on him by the now deceased, the accused said he picked the stone and threw it at the now deceased. The accused said he aimed at the lower part of the body but the now deceased was now in a bending position intending to pick a piece of wood hence was hit on the head. The accused said the now deceased fell down and he and others applied first aid as the now deceased was bleeding. The accused said, at his own expense, he later took the now deceased to a local clinic called Chipiwa and later to Chiredzi District Hospital where, unfortunately, the now deceased passed on.

The accused's defence is that he acted in self-defence and also in a drunken stupor. It is his defence that he had no intention to kill his brother or cause the death of his elder brother…..,.

The cause of the now deceased's death is not in issue. It was caused by the stone which was thrown at the now deceased by the accused inflicting the fatal injuries.

Exhibit 2 is the accused's confirmed warned and cautioned statement. The bulk of the contents of that statement outlines the events of that day leading to the now deceased's injuries and subsequent death.

We may simply highlight what we believe are material contents of that statement as follows;

(i) That his sister, Vongai Mutendera, had previously stolen his wife's clothes and that this sparked the dispute between his wife and Vongai Mutendera that day when Vongai arrived.

(ii) That it is Vongai Mutendera and the accused's aunt or sister in law who teamed up to assault the accused's wife which caused the accused to intervene by assaulting Vongai with a switch.

(iii) That the now deceased then intervened and assaulted the accused using booted feet causing the accused to fall.

(iv) That it is the now deceased who rushed to pick a log to further assault the accused.

(v) That due to pain inflicted on him, the accused decided to retaliate and did so by hitting the now deceased with a stone, at close range, on the ear.

(vi) Lastly, that when he realised he had seriously injured the now deceased, the accused rendered first aid and took him to a local clinic and then to hospital where the now deceased died.

We noted that there are material differences between the accused's Defence Outline and his confirmed warned and cautioned statement. This relate to two aspects, which are;

(i) The manner in which the accused said he was assaulted by the now deceased; and

(ii) The reason he attacked the now deceased with the stone.

The accused gives different versions on how he said he was attacked or assaulted by the now deceased and he failed to reconcile these versions throughout the trial. Further, the accused, in his warned and cautioned statement, suggests that when he hit the now deceased with the stone he was simply retaliating for the pain inflicted upon him. In the Defence Outline, he raises self defence and voluntary intoxication.

In his address to the court, counsel for the accused conceded to these disparities and alludes these inconsistencies to the accused's alleged high level of intoxication….,.

We now turn to viva voce evidence led from two witnesses by the State and the accused's evidence.

Simplicio Matsenga

He is married to the accused and the now deceased's sister, one Eliza Matendera, and resides in the same village with the accused. He was at the accused's homestead for the traditional ceremony on that day.

Simplicio Matsenga (Simplicio) said he arrived at the accused's homestead that day at about 10:00 hours and found both the accused and the now deceased already drunk. He joined others present for the ceremony which was being held inside the house.

Simplicio said the accused's sister, Vongai Mutendera, later arrived and entered into the house where she greeted people inside. He said as Vongai left the house, and at the doorway, the accused's wife, also known as Elizabeth, head-butted Vongai alleging that Vongai had previously stolen her clothes, being underpants and a jacket. Simplicio said the accused left the house and picked a log which he intended to use to assault Vongai as all the people got out of the house. He said Vongai fled to Simplicio's homestead nearby and locked herself inside the house as the accused chased after her.

Simplicio Matsenga said the accused, upon his return, was calmed down by his mother, but, instead, he assaulted his mother causing her to fall down.

Simplicio said the accused was alleging that his mother had given birth to a thief like Vongai. It is at this stage, Simplicio said, the now deceased intervened pointing out that it was improper for the accused to assault their mother. The now deceased then took the accused's amplifier which was being played saying he would only return it to the accused if the accused paid a chicken to appease their mother he had assaulted. He said as the now deceased was about to leave, the accused intercepted him and hit the now deceased with a stone on the head causing him to fall down. The accused was protesting that the now deceased should not take the accused's amplifier.

Simplicio said by the time the accused hit the now deceased with a stone, the accused was unaware that his sister, Tadzei, had already retrieved the amplifier from the now deceased. Simplicio said the accused had not realized this because the accused was very drunk.

According to Simplicio, the now deceased was hit with a stone at a close range of about 10m and that he was caught unaware. He said the now deceased fell down unconscious bleeding profusely.

Simplicio said when this incident happened, at about 3.00 pm, both the accused and the now deceased, who had been drinking beer since morning, were already heavily intoxicated, unlike him who was moderately drunk. In fact, Simplicio said the accused was so intoxicated that he seemed not to appreciate fairly what he was doing.

According to Simplicio, the accused and the now deceased enjoyed cordial relations as brothers. As a brother in law, he too enjoyed good relations with both the accused and the now deceased.

Simplicio denied that the accused was attacked or acted in self defence but that the accused was incensed when the now deceased took the accused's amplifier as the accused said he wanted to discipline the now deceased. He said the accused threw the stone at the now deceased with a lot of force at close range.

Under cross examination, Simplicio Matsenga denied that the now deceased tried to pick a piece of wood to assault the accused. He dismissed as completely untrue that the accused acted in self-defence….,.

Simon Haruzi Mudzingwa (Simon)

Simon is not related to both the accused and the now deceased. He said he arrived at the accused's homestead that day at about 14;00 hrs when the ceremony was over and people were now just drinking beer.

Simon Haruzi Mudzingwa said the problem started when an altercation erupted between the accused's wife and the accused's sister which caused the accused to intervene. He said the accused attacked his sister whom he chased up to Simplicio Matsenga's homestead where she sought refuge.

Simon said upon his return from chasing after his sister, the accused assaulted his mother who had tried to intervene in the fracas. This prompted the now deceased to take the accused's amplifier saying he would only return it to the accused after the accused would have appeased their mother. Simon Haruzi Mudzingwa said this resulted in an exchange of harsh words between accused and the now deceased which prompted the now deceased to state that he was now leaving the accused's homestead. Simon said as the now deceased was leaving, the accused picked a stone, Exhibit 3, and threw it at the now deceased hitting him on the right ear. He said the now deceased fell down bleeding profusely and was unconscious. This prompted Simon to tell the accused and other family members to immediately take the now deceased to hospital.

Simon said when this incident happened he was not drunk as he had just arrived. He however said both the accused and the now deceased were extremely drunk. He disputed that the accused attacked the now deceased in self defence but most probably due to his high degree of intoxication as the accused was not prepared to be restrained by anyone; which conduct was out of character for the accused as he normally took advice from Simon when sober.

In fact, Simon said the accused seemed not to appreciate all what the accused did due to intoxication.

Under cross examination, Simon Haruzi Mudzingwa said he was a good friend of the accused and had no cause to falsely implicate the accused. He said he and other people witnessed the accused hit the now deceased with a stone as they were now out of this house when all this commotion erupted. He denied that the now deceased tried to pick a log or attacked the accused in any manner and that the accused did not act in self-defence.

Accused's Evidence

From the accused's evidence, most of the sequence of events are not in issue. The accused admitted that he intervened in a dispute between his wife and his sister Vongai, although the accused says both Vongai and the accused's aunt Sarudzai teamed up to attack his wife. The accused confirmed that his mother held him restraining him and that his sister Vongai fled. The accused denied assaulting his mother but said he simply pushed her away.

The accused said the now deceased proceeded to attack the accused on the false allegation that the accused had assaulted their mother. The accused said he was hit with a log and fell down. He said the now deceased continued to hit him as he lay down saying he was disciplining the accused for assaulting their mother. The accused said he picked a stone as the now deceased was trying to pick a piece of wood to further assault him. The accused said he aimed to hit the now deceased's lower part of the body but hit him on the head as the now deceased was bending down to pick the piece of firewood.

The accused refuted that he was heavily drunk, insisting that he fully appreciated what he was doing and what transpired. The accused said both Simplicio Matsenga and Simon Haruzi Mudzingwa were inside the house and did not witness what happened between him and the now deceased. The accused said Simplicio and Simon connived to falsely incriminate him as they are friends. The accused said Simplicio wants to have the accused incarcerated so that Simplicio would not pay outstanding lobola for the accused's aunt; which lobola the accused always demanded.

The accused said he hit the now deceased from a distance of 2 metres with the stone and that the deceased was more intoxicated than the accused. The accused denied that there was any dispute in respect of his amplifier.

In our view, the accused did not fare very well as a witness.

We have already alluded to the contradictions or inconsistencies between his explanation on how he was allegedly attacked by the now deceased and his reason for attacking the now deceased. Even the accused's counsel concedes to this material contradictions. The issue that the accused acted in self defence only emerges here in court. In his confirmed warned and cautioned statement, the accused was clear that he simply retaliated and does not mention acting in self-defence. This material contradiction by the accused puts his story or defence into serious doubt.

It is clear to our minds that the accused is building his case as the trial progresses.

The accused did not suggest to both Simplicio Matsenga and Simon Haruzi Mudzingwa any possible reasons as to why both would falsify their evidence. The allegation of connivance was belatedly raised by the accused. The same goes for the allegation that Simplicio owes some outstanding lobola. It was never suggested to both of them that they did not witness how the accused hit the now deceased with the stone as they were inside the house. The inescaple conclusion is that all these assertions by the accused are a result of an afterthought on the part of the accused. All these issues could not have possibly escaped the accused's mind.

It is for these reasons that we do not find the accused to be a credible witness.

Findings by the Court

We accept the clear version given by both Simplicio Matsenga and Simon Haruzi Mudzingwa on how the accused attacked the now deceased. These two witnesses materially corroborated each other on how the accused attacked the now deceased and why he did so. They were both eye witnesses to the attack and fairly sober. Our finding is further fortified by the fact that they materially corroborated each other on the altercation between Vongai and the accused's wife, how the accused got involved to this altercation, the assault by the accused of his mother, why the now deceased intervened, the source of dispute between the accused and the now deceased, the degree of both the accused and the now deceased's level of intoxication, and, most importantly, how the accused attacked the now deceased. They both discount that the accused acted in self-defence.

From the facts and evidence placed before us, the defence of self defence, as provided for in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is not available to the accused. It is a fact that the accused did not act in self-defence.

It is a fact that the accused attacked the now deceased with the stone which weighed almost 2kg. The stone was thrown at a very close range of 2 metres, as per the accused's version. It is not true that the now deceased was in a bending position. This means the accused aimed at the head and hit the now deceased on the right earlobe. It is clear that severe force was used as the now deceased was immediately incapacitated and seriously injured. The severe head injury inflicted is the proximate cause of death.

The question to be answered is therefore whether the accused had the requisite intention, actual or constructive, to cause death.

In our view, despite the accused's protestations, we accept the evidence of both Simplicio Matsenga and Simon Haruzi Mudzingwa that the accused was heavily intoxicated and did not fully appreciate his conduct. The effect of the defence of voluntary intoxication as a defence to a charge which requires proof of intention or mens rea is provided for in section 221(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The degree of intoxication can vitiate the requisite mens rea or intention. Our view is that the accused's brain had been numbed by the alcohol he had taken. This, therefore, means he had no requisite intention, actual or constructive, to kill the now deceased. Our view, therefore, is that the accused was so intoxicated that he did not have the intention to commit the specific intent crime like murder.

The accused, however, was negligent in his conduct and cannot escape liability in respect of a permissible verdict on a charge of culpable homicide.

The accused person faces a charge of murder; it being alleged that on 14 June 2015 he killed his cousin Nkosiyazi Zwelithini Mhlanga.

The accused person pleaded not guilty to the murder charge but instead offered a limited plea to the charge of culpable homicide. The State accepted the limited plea and tendered a Statement of Agreed Facts prepared and signed by both parties. It was marked Exhibit 1 and it reads as follows:

1. The deceased was 24 years old at the time he met his death. He used to reside at Dzidzane Village, Guyu during his lifetime.

 2. The accused, Fortunate Nyathi, is a male juvenile who was aged 16 at the time of the commission of the offence. He resides at Nehemiah Nyathi's homestead, Dzidzane Area, Guyu.

3. The accused and deceased were related as cousins.

4. On the 14^th day of June 2015, and at around 1700 hours, the deceased and accused were seated at Dzidzane Bus Stop, Dzidzane Village, Garanyemba Area, Guyu together with their friends.

5. A misunderstanding erupted between deceased and accused. The accused then cut a stick from a tree and struck the deceased once on the left elbow and once on the back of the neck he then turned and fled with the stick he had used to assault deceased.

6. The deceased fell down unconscious and he was rushed to the clinic where he was pronounced dead on arrival.

7. On the 15^th day of June 2015, the accused was handed over to the police by his brothers. The stick he had used to assault the deceased was not recovered.

8. The accused pleads not guilty to murder but pleads guilty to culpable homicide in that he negligently and unlawfully caused the death of deceased when he assaulted him once at the back of the neck with a stick and once on the left elbow.

The State counsel also tendered the affidavit by Constable Isaac Jacob who is the officer who identified the deceased's body to the pathologist. It was marked Exhibit 2.

The postmortem report was also tendered and marked Exhibit 3. It gives the cause of death as;

(1) Neurogenic and medullary shock.

(2) Subual haematoma cervical contussions.

(3) Severe head and neck trauma due to beating injury.

The fourth exhibit is the accused person's birth certificate copy which confirms that he was born on 24 August 1998.

With the facts, as contained in the Statement of Agreed Facts, and the documentary evidence before us, we are satisfied that a murder charge could not be sustained.

The accused was arraigned and brought to court on a charge of murder in terms of section 47(1) of the Criminal Law Codification and Reform Act [Chapter 9:23].

When called upon to plead, the accused pleaded guilty to culpable homicide, as informed by section 49 of the Criminal Law Codification and Reform Act [Chapter 9:23]. The State accepted the limited plea on the strength of a joint Statement of Agreed Facts which was to the following effect;

“1. The deceased was aged 15 years at the time he met his death and he used to reside at Thabani Ndlovu's homestead, Sizinke Village, Lusulu, Lupane.

2. The accused was aged 15 years at the time of the commission of the offence and he resides at Priscilla Ndlovu's homestead, Sizinke Village, Lusulu, Lupane.

3. The deceased and accused were cousin brothers.

4. On the 1^st of May 2015, at around 20:00 hours, the deceased was in the company of Tafara Ndlovu, Brightwell Ndlovu and Bhekinkosi Ndlovu in the bush gathering honey from a bee hive.

5. They were joined by the accused, Zwelonke Ndlovu and Clement Ndlovu.

6. Tafara Ndlovu and Clement Ndlovu began to quarrel over an unresolved dispute from the previous week.

7. Accused held Tafara Ndlovu by the collar and warned him not to assault Clemence Ndlovu.

8. Deceased intervened advising accused to solve the matter amicably.

9. Accused threatened to assault deceased with a homemade axe he was holding but was disarmed by Brightwell Ndlovu.

10. Accused snatched another axe from Clemence Ndlovu and struck the deceased once on the rib cage below the left armpit using the back blunt side of the axe.

11. Deceased fell down and was unconscious.

12. Elisa Ndlovu was called and she tried to render first aid but realised that deceased had died.

13. The accused person pleads not guilty to murder but guilty to culpable homicide in that he negligently caused the death of the deceased.”

Following upon the submission of the post mortem report, exhibit 1, the accused's birth certificate, exhibit 2, and the murder weapon, exhibit 3, the court pronounced the accused not guilty of murder and proceeded to return a verdict of culpable homicide and went on to consider the appropriate sentence for the accused.

The accused person, a 46 year old mine employee, is charged with murder, in contravention of section 47 of the Criminal Law Code [Chapter 9:23], it being alleged that on the night of 24 December 2015, at Joplum Mine, Springs Farm, Kessington, Bulawayo, he wrongfully, unlawfully and intentionally killed Sindisani Sibanda a male adult then aged 24 years.

The allegations are that the accused and the deceased were workmates at Joplum Mine in Kessington Bulawayo where a drinking party had been organized on the night of 24 December 2015. As the workers at the mine were carousing, the accused and the deceased had a misunderstanding, and, as so often happens when people have taken copious amounts of intoxicating liquor, the deceased is said to have attacked the accused with a shovel but was restrained by a witness, Duke Khumalo.

The accused is said to have picked up an iron bar, exhibit 5, which was lying around and struck the deceased three times on the head causing him to fall down unconscious. The incapacitation of the deceased appeared to inspire the accused to further attack the deceased as he is said to have struck him five more times on the back with the weapon killing him instantly before taking to his heels, only to surrender himself to police at McDonald Police Base the following day on Christmas Day.

The accused pleaded not guilty to the charge.

In his Defence Outline, while admitting attacking the deceased as alleged and pleading drunkenness, the accused denied any intention to kill the deceased. He stated that he had acted under extreme provocation as the deceased insulted him continuously. On three occasions, the deceased had attacked him with stones angry that the accused had fingered him out as the person who had stolen seven bottles of spirits stored in the accused's room.

On the third occasion, the deceased had used a shovel to attack him, and, after repelling that last attack, the accused says he succumbed to the extreme provocation and also acted in self-defence while drunk. Picking up an iron bar, which fortuitously happened to be lying around, he attacked the deceased. In those circumstances he “failed to judge or measure his response.”

The State led evidence from Duke Khumalo who witnessed the killing of the deceased.

His evidence is to the effect that he is the one who organized an end of year party for all the mine workers at the mine complex on 24 December 2015. When he got to the venue he found the deceased and the accused exchanging insults over a dispute he did not know. He managed to calm down the two combatants but no sooner had peace prevailed than the deceased picked up a shovel and confronted the accused intending to strike the accused with it as he stood by the fire. The deceased shouted obscenities at the accused. When he tried to strike the accused with the shovel, the latter succeeded to block the attack with his arm and then withdrew an iron bar which he used to strike the deceased once on the forehead felling him to the ground. While on the ground, the deceased was struck a further two times on the back of the neck thereby incapacitating him.

The accused retreated about three paces while still holding the iron bar before turning round and launching a fresh attack on the deceased after remarking that he was now finishing off the deceased. He struck the deceased a further five times on the back before absconding leaving the deceased bleeding from the forehead apparently dead.

According to the postmortem report, the deceased had multiple injuries including injuries to the head, a ruptured liver and injuries to the abdomen. The doctor observed that the cause of death was haemorrhagic shock, haemoperitoneum, ruptured liver, blunt force trauma in the abdomen due to assault. What is significant is that the blows which the accused directed to the deceased's head may not have been fatal. Quite to the contrary, it is the blows directed elsewhere on the deceased's body which killed him. That is significant in that to the extent that the accused incapacitated the deceased by the blows to the head, had he ended then the deceased could have lived.

The accused also gave evidence in essence reiterating his position as summarized in the Defence Outline. He added that although he does not deny the possibility of assaulting the deceased as alleged by the State witness, he does not know the number of times he hit the deceased neither does he know the parts of the body to which the strokes were directed.

Not very useful testimony one would say.

According to him, he was so intoxicated that although he could still make a fire to cook, he was incapable of cooking himself. Although he left intending to go to the police post 6km away, he could not make it there but slept in the bush, only arriving there at 6am the following morning. He says he was accompanied by workmates when he finally arrived at McDonald Police base but does not tell us where he got these workmates and when, especially as Duke Khumalo was the last man standing and told us the accused had left running. There is also a dispute as to when he surrendered himself. Sikwila's admitted evidence is that it was 24 hours later.

The accused has raised essentially three defences, namely, provocation, self defence and intoxication. We will deal with those three defences in turn backwards starting with intoxication.

The position of our law is that voluntary intoxication, at most, can be a partial defence. In specific intent crimes, like murder, which the accused is presently facing, where it has been established that the accused person voluntarily consumed alcohol to the extent of losing self-control or inhibitions, that defence will reduce the crime to a lesser crime, for instance culpable homicide.

Professor G. FELTOE, A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…, makes the important observation that the court must therefore explore, carefully, the actual effect upon the accused of his consumption of liquor or drugs. The learned author goes on to say:

“Liquor and drugs affect different people in different ways. It may be that, although he consumed a considerate amount of liquor, the liquor did not remove his ability to discern what he was doing and he was still able to form the intention to commit the crime. Some people become easily intoxicated and become drunk after consuming a small amount of liquor and others are able to consume a considerate amount of liquor and still remain in control over their mental faculties.”

In carefully examining the actual effect of the liquor on the accused person, it has not escaped our notice that he was able to restrain himself considerably when the deceased was belting out insults at him. He was also able to ward off the shovel attack with his left arm suggesting that not only was he strong enough he was also in control of his mental faculties. We are also mindful of the fact that when he responded to the deceased's misbehavior, he felled him to the ground with a single blow and the deceased remained there throughout.

Indeed, the accused is said to have retreated after incapacitating the deceased. It was only after a while that he returned to inflict the fatal blows avowing: “Let me finish him off.” It occurs to us, therefore, that the liquor the accused consumed did not remove his ability to discern what he was still doing and he had sufficient control of his faculties to formulate an intention. His avowed intention was to finish off the deceased. In that regard, the defence of intoxication is not available to the accused.

Regarding self defence, the legal position is that a person is entitled to take reasonable steps to defend himself against an unlawful attack and to inflict harm or even death in order to ward off an attack. The requirements for that defence are:

1. The accused must be under an unlawful attack, or, where he is defending another person, that person must be under unlawful attack and the accused intervenes to protect that person;

2. The attack must have commenced or must be imminent;

3. The action taken must be necessary to avert the attack; and

4. The means used must be reasonable.

Professor G. FELTOE, A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…,

In the present case, the accused person was clearly under attack from an abusive and intoxicated person who was using a weapon to do so, that is, a shovel. He picked up what was probably the nearest available weapon to defend himself and ward off the attack, and struck the deceased once on the head bringing him crashing to the ground. It cannot be said that the actions and the means used up to that stage were unlawful or wrongful. The law allowed him to do so and he had succeeded in warding off the attack.

It is, however, what he did after that with the avowed intention of “finishing off” the deceased which was unlawful. It is sometimes said that a person under attack is not entitled to exceed the bounds of self-defence. There is no doubt that the accused exceeded the bounds of self defence and killed the deceased. Self-defence is therefore not available to him as a defence to the charge of murder….,.

According to G. FELTOE A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…,;

“Where X exceeds the bounds of reasonable defence and kills the assailant, he may, nonetheless, still be found guilty of culpable homicide unless the excess was immoderate. The approach here is that the account should be taken of the fact that X was under attack, although, in the circumstances, he over-reacted. He should thus be entitled to a partial defence on a murder charge. This partial defence will not apply where X's response was entirely excessive in the light of the type of threat he was under.”

The question to be decided, therefore, is whether the accused's response could be justified under that head. It would seem, in light of the post-mortem findings that the excess was immoderate. We will, however, park that issue here for consideration together with the final leg of the accused's defence, that of provocation, to see whether, cumulatively, the two can reduce murder to culpable homicide.

Provocation, in Zimbabwean law, may, where proved, reduce murder to culpable homicide, itself a punishable offence. This is because despite the fact that the accused would have responded to provocative behavior, it is every person's social responsibility to exercise self-restraint. Where they fail to do so, they must still be punished in order to prevent anarchy.

Our approach with provocation is two-pronged.

The first stage, being the application of the normal subjective test to decide whether there was an intent to kill. If there was intention to kill then the court must proceed to inquire whether the extent of the provocation was of such magnitude as to reduce murder to culpable homicide.

We however prefer the less problematic approach adopted in S v Nangani 1982 (1) ZLR 150 (S) instead of conducting the second rung of the inquiry. In that case, the court formulated the test stating that the question to be asked is: Was the provocation such as could reasonably be regarded as sufficient ground for loss of self-control?

What we have is a situation where the conduct of the deceased was provocative in the extreme. He exhibited homosexual tendencies towards the accused as he violently made amorous advances to him. At the same time, he accosted the accused with stones as he made the immoral insults which the accused says he was prepared to let go until he had sobered up when he was going to chastise him the following morning.

The accused says it is the shovel attack which forced him to take up arms in order to ward off the unprovoked aggression on him. We, however, cannot overlook that verbal abuse.

In our view, the extent of the provocation was gross and sustained. Here is a young man who was half the age of the accused but was running riot for several hours after stealing “thatha nkau” left in the custody of the accused. He first launched a frontal attack which was just a light skirmishing manouvre with stones. He upped the ante with immoral verbal assaults which went to the very root of the elderly man's manhood threatening to turn him into a perverted sex object.

When all that did not work he waxed even more dangerous, rushing to his tent to arm himself with a shovel. According to the State evidence, he attempted to chop the accused with it. In our view, a reasonable person in the position of the accused person would have lost self-control and acted in the same manner. We are satisfied that indeed the accused person lost self-control and acted in the manner that he did.

Applying the test propounded in S v Nangani 1982 (1) ZLR 150 (S), namely, whether the provocation was such as could reasonably be regarded as sufficient ground for loss of self-control that led the accused to act against the deceased as he did, we answer that question in the affirmative. The effect of that finding is therefore to reduce the crime of murder to culpable homicide. We are also mindful of the issue which we parked concerning self-defence.

Accordingly, the accused is found not guilty of murder but guilty of culpable homicide.

The accused is charged with contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded not guilty.

The facts leading to the charge are not in dispute. The accused and the deceased were related. They both resided in Marovanhidze Village in Murehwa. It is not in dispute that late at night on 2 May 2011 the deceased went to the accused's home and knocked on the door. The accused's wife enquired who it was and the deceased identified himself. The wife dressed up and went to open the door. She then asked why the deceased would visit at such late hours. It is not in dispute that the deceased expressed dismay at the accused's wife's attitude. On the other hand, the wife gestured that her husband was inside.

Meanwhile, the accused had woken up and was standing behind the wife. Having noted the gestures by the wife and the deceased's insistence that he had paid her a visit the accused challenged the deceased in respect of his conduct vis a vis the wife. The deceased was defiant and proceeded to enter the house un-invited. He proceeded to punch the accused. As he punched the accused for the second time, the latter retaliated. The accused subsequently used a hoe handle they used as a wedge on the door to assault the deceased. The deceased sustained injuries from which he subsequently died.

The accused person's defence was to the effect that when he challenged the deceased as to why he was insisting on seeing his wife, the deceased entered into the bedroom and pushed the accused before hitting him on the chest with a fist. He acted in self-defence and was extremely provoked by the deceased's conduct. Thus, he took a hoe handle and beat the deceased on the buttocks and on the leg. The deceased later conceded defeat whereupon the accused went to summon the Village Head. He learnt that the deceased had died after the deceased's father said so. The accused then went to report the matter at Murehwa Police Station.

The accused's wife, Marjorie Kasiyapfumbi, testified that after responding to the knock and asking the deceased why he was moving at night the deceased advanced towards the door and asked if he could no longer visit the family as he used to care for them. It was the accused's wife who then invited him inside. However, the deceased kicked the door as he entered and hurled obscenities at the accused. He then proceeded to hold the accused by the collar. After the accused had asked whether the deceased was after this witness he was struck with a fist on the jaw. After the accused was struck with a fist for the second time the two then grappled. She left to alert others when the two were grappling. When she returned she found the deceased lying by the entrance. He was still shouting obscenities. On the other hand, the accused had a swelling on the right side of the mouth. As the accused and the deceased continued to exchange words the accused struck the deceased once on the buttocks with the hoe handle. Later, the accused dragged the deceased outside. The wife denied having an affair with the deceased.

Under cross-examination, she agreed that the deceased was violent. Her own conduct appears to have contributed to the conclusion that she was having an affair with the deceased. For example, she admitted that when she talked to the deceased she stood by the door and placed her hand on the door frame in a way that obstructed the accused from seeing outside. Even the gestures she made to the deceased were suspicious enough. All this explains why the accused also wanted to assault her. By her own admission the accused was angry.

This witness's evidence was such that she could have testified for the defence. Being the wife of the accused, and having been at the centre of the dispute, one could not have expected her to give evidence that was not favourable to the accused person.

Simon Kamonera, the deceased's father, also testified. He was roused from his sleep by the Village Head's son and received a report of the assault. It was dark. He then set out to the scene of the incident. He found the accused and his wife. He did not recognize the accused. The accused told him he had fought with the deceased and could have shown him the injuries he sustained if there was light. He did not verify the details of the dispute. This witness further stated that Marjorie Kasiyapfumbi was not married. He had heard that she had children. He was shown the deceased who was covered with a blanket. The deceased was cold and bleeding from the nose. He proceeded to inform the deceased's brother before returning to guard the corpse. Police officers later came in the morning and the accused was pointed out as the culprit.

Under cross-examination he denied that the deceased partook alcohol. One could note that he was defensive. For example, in response to a question on what he would do if an intruder invaded his home, he said he would do nothing. Pressed on whether he could not defend himself if attacked he said he would but without killing.

He vacillated on Marjorie Kasiyapfumbi's marital status. He said she used to reside in Mutoko and had been residing in their village for six months when the incident took place. Asked on Marjorie's marital status, he said he had heard that she was married although he had not seen the husband. This is because he had not been officially informed. He conceded that he had initially resolved to dump the deceased's body at the accused's home. He also confirmed that Marjorie Kasiyapfumbi had been banished from the village.

The evidence of Adam Sibange was admitted. The State then closed its case.

In his defence, the accused stated that he earned a living from selling boxes used for packaging tomatoes. He operated from Mbare. He confirmed the testimony of Marjorie Kasiyapfumbi concerning the exchanges that took place between her and the deceased after she responded to his knock. Even though Marjorie must have been cheating on him, she tried to send the deceased away by informing him that the accused was present. The deceased was unperturbed. The accused knew the deceased and challenged if that is what he did in his absence. The accused further explained that he had previously worked in the village for two years before he married Marjorie. This was at Tirivanhu's home which is about half a kilometre away from Silasi's home.

Having been attacked, the accused fought back. When he realized that he was being overpowered, he panicked as the deceased was by the door. He looked around and saw a hoe handle which was used to secure the door. He then struck the deceased from the mid-extremities downwards. He said he did not aim at the face. The deceased hurled insults at him. After striking him, the deceased capitulated and leaned against the wall. The deceased further stated that the accused was lucky to win otherwise he would have knifed him. The accused claimed that the deceased used severe force against him. As a result he sustained a swollen cheek and leg. Eventually he pushed the deceased outside. He left him by the door as he went to the Headman's home. He returned with the Headman and the deceased's father. Since the deceased's father said he was leaving the body at the accused's home, the accused decided to go and report the matter to the police.

Under cross-examination, the accused did not dispute the contents of his warned and cautioned statement although he claimed that his testimony was the truth. He conceded that he overpowered the deceased who fell down. He also conceded that the warned and cautioned statement made no reference to the deceased possessing a knife.

The two defences in issue are that of defence of self and provocation.

In terms of section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provocation may be a partial defence where the accused lacks intention or realization of risk in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or he has the intention or realization referred to in section 47 but because of provocation has completely lost self-control in circumstances where a reasonable person would have lost self-control.

On this score, the State urged the court to disregard the defence of provocation on the basis that a reasonable person would not have lost self-control. On the other hand, counsel for the defence submitted that the accused was extremely provoked by the deceased's conduct.

We are satisfied that the accused person was provoked by the deceased who was belligerent after he had made the suspicious nocturnal call on the accused's wife. Even if a reasonable person might have lost self-control, the accused did not. This is because apart form challenging the deceased's visit, the accused did not react in any other way. He did not fight the deceased or even shout at him. The accused only reacted after he had been attacked by the deceased.

Loss of self-control cannot just be invoked without elaboration. Even if not explained, it must be exhibited in the conduct of the accused person. It would appear that the provocation experienced by the accused may have arisen from being attacked by the deceased as opposed to the suspicious night visit. The accused appeared to have been angered by the wife's gestures to the deceased after his fight with the deceased. It is not easy to assess how a person may lose self-control. In the present case, the provocation seamlessly dovetails with self-defence.

Regarding self defence, whilst submitting that it is a partial defence, the State urged the court to return a verdict of murder. On the other hand, the defence, just as it has done in respect of the defence of provocation, sought an acquittal.

Regarding defense of person, section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that -

“Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if -

(a) When he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) His or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she believed, on reasonable grounds, that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct -

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.”

Applying these requirements, it is self-evident that the deceased was the aggressor. Therefore, an unlawful attack had commenced. The accused was entitled to defend himself against the attack.

It is the means used by the accused to avert the attack that poses a problem.

By his own admission, as evidenced by the confirmed warned and cautioned statement that was produced as exhibit 1, the accused overpowered the deceased. The relevant part of the statement reads as follows -

“As we were fighting I overpowered him and he fell down. I then jumped and stamped him (sic) on his ribs several times. I then took a hoe handle and assaulted him all over the body with it. I then noticed that he was unable to stand up on his own. That is when I dragged him out of the house and left him lying on the ground.”

The post-mortem report noted the following injuries -

“(i) Fracture left proximal femur.

(ii) Abrasions on right shoulder, both forearms and buttocks.

(iii) Fractured left 5^th and 6^th ribs, fractured right 4^th rib.

(iv) Swollen right upper lip, loose jaw.

(v) Bleeding from the nose.”

The cause of death was given as multiple organ damage arising from assault.

The use of unreasonable force in legitimately defending oneself or another person from unlawful attack incurs liability for culpable homicide if it results in the death of the attacker. Section 254 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that -

“If a person accused of murder was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements for defence of person specified in section two hundred and fifty-three are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.”

Once the accused person managed to overpower the deceased he was no longer in danger. He was not expected to continue attacking the deceased person - especially using a weapon. The means he used were not proportionate to the attack that he had experienced. Therefore, the means he used were unreasonable in the circumstances. You cannot continue to assault a person who is down thereby inflicting fatal injuries and claim that you were defending yourself from an unlawful attack.

Accordingly, the accused person is found guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The accused person faces a charge of murder; it being alleged that on 15 November 2007 he unlawfully caused the death of Tashinga Mhike by striking him with a log several times on his body. He pleaded not guilty to the charge of murder, but, instead, offered a limited plea of guilt to the lesser charge of culpable homicide.

The State accepted this limited plea. Both parties drew a Statement of Agreed Facts which was tendered by the State and whose material aspects read as follows:

1. Try Muzerengani, (hereinafter referred to as the accused) resides in village Muzerengani, Chief Nemangwe, Gokwe in the Midlands Province. He was 35 years old at the material time.

2. The deceased is Tashinga Mhike and was staying in the same homestead with the accused and the two are blood brothers.

3. On the 15^th of November 2007, in the morning, the accused went to water some cattle at the gardens. While there the deceased arrived armed with a log.

4. The deceased, at that time, was suffering from a chronic headache and was alleging that it was the accused who was bewitching him.

5. The deceased then delivered a blow on the accused with the log. The accused ducked the blow.

6. It is then that the accused also armed himself with a log which he pulled from the hedge of the garden and started striking back. In the process, he struck the deceased on the head once. The deceased fell to the ground as a result of the blow.

7. While the deceased was on the ground, the accused delivered more blows on the deceased all over the body with the log. The deceased cried out in the process, causing some boys who were herding cattle nearby to alert other people.

8. These people went to the scene and found the deceased lying on the ground.

9. The deceased was then ferried, in an ox-drawn cart, to the police who then advised that the deceased be ferried to hospital.

10. Unfortunately, the deceased died before arrival at the hospital resulting in his body being ferried to Gokwe Hospital. While there, a Government Clinical Officer, Aaron Chikara, conducted a post-mortem examination and concluded that the cause of death was fractured skull and brain haemorrhage.

11. The accused accepts the evidence of the State witnesses as well as the post mortem report. The accused denies having the requisite intention in the form of dolus directus or dolus eventualis to kill the deceased but acknowledges that, through his conduct aforesaid, he was negligent in causing the deceased's death.

12. The State concedes that the accused was negligent in the way he conducted himself and in that he did not take all the necessary steps to ensure that his actions did not cause the deceased's death. The State therefore accepts the accused's plea to culpable homicide.

It was marked Exhibit number 1.

The post mortem report which gives the cause of death as a fractured skull and brain haemorrhage was tendered and marked Exhibit 2. The log that was allegedly used in the commission of the offence was marked Exhibit 3.

From the facts before us, we accordingly find the accused person not guilty of the charge of murder but proceed to convict him on the lesser charge of culpable homicide.

The accused was initially facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] but now stands convicted of a permissible verdict of contravening section 49 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] which relates to culpable homicide. This was after both counsel found each other and the matter proceeded by way of a Statement of Agreed Facts.

The agreed facts which inform the charge are as follows;

The 43-year-old accused, who had gone to a local hospital with his sick child, returned home at midnight in Tagovegwa Village, Sorelele, Chief Mazhetese, Mwenezi, Masvingo. The 21-year-old now deceased was apparently in love with the accused's 20-year-old daughter, Sithulisiwe Ncube, who was married and had a child. The accused's said daughter had been returned to her parents' home due to some undisclosed issues with her husband, which issues were yet to be resolved. She was therefore committing adultery right under the nose of the accused, her father, at the accused's homestead.

The now deceased, on that night of 8 August 2017, had sneaked into the bedroom of the accused's daughter in the absence of the accused and his wife. When the accused and his wife returned home at midnight, unannounced, the accused's daughter panicked and covered the now deceased with a dish and a blanket. Unfortunately, the accused, upon entering his daughter's bedroom with a torch to leave his sick son who shared the same bedroom with his daughter, he found the now deceased whom he did not know. A scuffle ensued as the now deceased tried to escape unsuccessfully.

The accused's wife brought some mopani tree switches which the accused used to assault the now deceased all over the body. The now deceased fought back to free himself without success. The assault continued unabated until a neighbour, Loyekai Bhamule, arrived and identified the now deceased. By then, the now deceased had been fatally injured as he had sustained extensive whip lash marks on the trunk, buttocks and lower limbs. He had bruises on the neck which was now loose, deformed and hyper-mobile. The now deceased passed on at dawn. As per the post mortem report, the cause of death is cervical spine fracture and neck trauma.

There is no doubt that this is a very serious case of culpable homicide which may be borderline with a case of murder with constructive intent. It entails violent conduct resulting in the loss of the now deceased's young life. The sacred nature of human blood cannot be over emphasised and it behoves upon the court to always uphold the sanctity of human life. It is a fact that once a life is lost it cannot be replaced.

It is clear from the nature of the injuries sustained by the now deceased that the accused's degree of negligence is very high. Clearly, severe force was used to inflict such injuries causing cervical spine fracture and neck trauma. The assault itself was prolonged....,.

We accept that the accused, who had no misunderstanding with the now deceased prior to this incident, simply found himself in a situation which he could not countenance. The loss of life was therefore not intentional but a result of negligence.

The accused was charged with the crime of murder; it being alleged that on 19 December 2014, at Mabutho Ncube's homestead, Nyambane Village, Gulathi area, Matobo, the accused did wrongfully and unlawfully kill and murder Mabutho Ncube, a male adult who was aged 35 years, by striking him with a log on the head.

The accused pleaded not guilty to the charge and tendered a limited plea of guilty with respect to the lessor charge of culpable homicide.

The State accepted the limited plea and tendered a Statement of Agreed facts (exhibit 1).

The brief facts are that on 18 December 2014, the accused and the deceased, who were husband and wife, had a misunderstanding over the accused's disappearance from their matrimonial home without the deceased's knowledge. The deceased did not accept the accused's explanation. On the following day, on 19 December 2014, around 20:00 hours the accused and the deceased had a physical confrontation. Harsh words were exchanged between the parties. The accused alleges that the deceased threatened to stab her with a knife. In anger, the accused picked up a log and struck the deceased twice on the head. The accused disappeared from the scene.

On 20 December 2014, the accused phoned the deceased's brother and informed him that she had fought with the deceased and struck him with a log. On 21 December, the deceased's brother proceeded to the deceased's homestead where he found the deceased naked and lying in a pool of blood – dead.

The deceased had succumbed to the injuries sustained in the assault.

The postmortem report (exhibit 2) reveals that the cause of death was:

(a) Subarchnoid haemorrhage.

(b) Depressed skull fracture.

(c) Blunt force trauma head.

(d) Homicide.

The pathologist concluded, from the examination, that the cause of death was consistent with a blunt force trauma with a heavy and blunt object.

On external examination, the following marks of violence were observed:

(i) Abrasion on left hand (2cm x 2cm);

(ii) Swelling on hand;

(iii) Blood on the face, neck, shoulders and forearm;

(iv) Lacerations below right eye (2cm);

(v) Laceration on left frontal (4cm) and left parietal (6cm).

The court is satisfied that the accused acted negligently in causing the death of the deceased. Accordingly, the accused is acquitted on the charge of murder and found guilty in respect to culpable homicide.

Of culpable homicide, the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) says in section 49:

“Any person who causes the death of another person -

(a) Negligently failing to realize that death may result from his or her conduct; or

(b) Realizing that death may result from his or her conduct and negligently failing to guard against that possibility;

shall be guilty of culpable homicide and liable to imprisonment for life or any definite period of imprisonment or a fine up to or exceeding level fourteen or both.”

Thus, negligence [culpa] is the bedrock of this crime. The yardstick to measure it is the proverbial reasonable person, the diligens paterfamilias. Whereas with murder with legal intent the test is subjective: being whether the accused himself did foresee the consequences of his conduct, but nonetheless continued; with culpable homicide, the test is whether a reasonable person would have foreseen the consequences of the accused's conduct, and whether the accused failed to measure up to that standard.

It is sometimes a very thin line between the worst form of culpable homicide and murder with legal intent. In R v John 1969 [2] RLR 23, it was said murder [with legal intent] and culpable homicide are closely related offences. Together, they cover the whole field of criminal liability for bodily injury, the one taking over where the other leaves off.

The accused was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. However, he was convicted of the permissible verdict of culpable homicide as defined in section 49 of the Criminal Code [Chapter 9:23] after the State and the defence agreed that it is the appropriate charge.

The matter therefore proceeded on the basis of a Statement of Agreed Facts.

The agreed facts are that the accused is the father of the 8-year male now deceased. They were residing at the same homestead at Village TI Nyahombe Resettlement, Chief Shindi, Chivi, Masvingo. Apparently, the accused separated from the now deceased's mother and he had custody of the now deceased and had remarried.

On 10 April 2017, the accused alleged that the now deceased was misbehaving and decided to inflict corporal punishment using a mopani stick. The accused took issue with the now deceased's habit of un-punctuality when sent to on errands at the nearby shops. As the now deceased was being chastised he raised his legs and was hit on the testicles rendering the now deceased unconscious. The accused tried to carry out first aid but the now deceased passed on. The accused thereafter wrapped the now deceased's body in a blanket and buried it in a toilet pit he was working on. Thereafter, the accused lied to the persons he was staying with that the now deceased had gone to the now deceased's mother in Chivhu. The now deceased's mother later learnt that the now deceased was being said to be in her custody and she approached the accused about the lie. The accused still could not reveal the whereabouts of the now deceased hence the matter was referred to the police leading to the accused's arrest - 9 months later, in January 2018.

The accused only pointed to the police, on 28 January 2018, the place where he had buried the now deceased after which the police exhumed the skeletal remains of the now deceased wrapped in a blanket. The pathologist could not determine the cause of death due to advanced decomposition.

The truth of the matter is that the accused persons indeed assaulted the now deceased in the clear manner explained by both Matambudziko Maluleke and Newyear Unganai. They acted in common purpose and in concert. They used booted feet directing the blows to the head and upper part of the body. Fatal injuries were inflicted as the now deceased was rendered unconscious. We however do not believe that the accused persons formulated the requisite intention to kill the now deceased. They were simply negligent in the manner they assaulted him.

In the result, we find them not guilty of murder but they cannot escape liability on a permissible verdict of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused, who was initially facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], was subsequently convicted on his on plea of guilty of contravening section 49 of the same Act which relates to culpable homicide. This was after the matter proceeded on the basis of a statement of agreed facts.

This is a borderline case between murder and culpable homicide.

The State may have found its work cut out as there was no eye witness to the fatal assault of the now deceased. In addition to that, the now deceased was the aggressor who in fact followed the accused who had decided to walk away from the confrontation. To compound matters, the State could not rebut that the now deceased is the one who possessed the lethal weapon, being an okapi knife, and that he pulled it out to stab the accused but was dispossessed and instead fatally stabbed. The defence of self defence, in the circumstances, is available to the accused although the means he used were not reasonable.

This, in brief, informs the conviction of the accused on a lesser charge of culpable homicide.

The agreed facts are that both the accused and the now deceased, who are aged 22 years, were patrons at Day and Night Club, Zano Business Centre, Chief Chikwanda, Masvingo on Christmas day, 25^th December 2017. As usual, they were merry making partaking beer and playing a game of snooker. Apparently, as the alcohol took its toll, at around 21:30hrs, a quarrel ensued between them as to who was to play the snooker first. A fight nearly ensued but one Lebison Sithole restrained the two. The accused decided to take his snooker tokens and left the bar for home using a foot path which passes through some maize fields.

The now deceased, Tinashe Shepherd Shindi, had other ideas.

He followed the accused and caught up with him some 400m from the night club. The altercation between the two resumed.

There was no other person present.

The accused said the now deceased pulled out an okapi knife. It weighs 0.058kg with a 13cm long handle and the blade is 10cm long. The accused said the now deceased tried to stab him and a scuffle over the knife ensued. The now deceased was dispossessed of the knife and stabbed three times. The now deceased rushed back to the night club where he fell unconscious on the verandah and passed on upon arrival at Zano Clinic the same night. The accused fled from the scene and did not even proceed to his homestead. Instead, he hid at his aunt's residence in Matende Village where he was finally apprehended at 0200hrs on 26 December 2017. The accused had hid the knife in a shoe and wiped it of blood. The accused produced the knife and confessed to what he had done.

The post mortem report shows that the now deceased died of haemorrhage shock arising from stab wounds. In fact, there were three stab wounds described as follows;

“±2cm stab wound on right subclavian area, piecing through chest wall to lung.

±2cm left subclavian stab wound piercing through muscle but not chest wall.

±1cm superficial stab wound left subclavian area.”

Our task in this matter is to assess the appropriate sentence.

The matter came up for trial. Initially, the State prepared a charge of murder against the accused. On reflection, before commencement of trial, the State reduced the charge to culpable homicide. The State and the defence came up with a charge of culpable homicide and a Statement of Agreed Facts.

The accused pleaded guilty to culpable homicide, wherein, it is the State's contention that on 9 November 2017, at Maronga Village, Chief Musikavanhu, Chipinge, the accused unlawfully caused the death of Onai Chinondida by striking him with a brick once on the head, negligently, failing to realise that death might result from his conduct resulting in injuries from which Onai Chinondida died.

The Statement of Agreed facts revealed, among other common cause aspects, that, on 9 November 2017 the accused and the deceased were at Ndashuwa homestead for a beer drink. Further, that, at around 1500 hours, an altercation arose between the deceased, the accused and the accused's young brother, one Trymore Chinondida. The altercation was over the accused's persistence to have more beer and that Trymore owed the deceased 50 cents. The deceased struck the accused once on the back of the head with a stone propelled from a catapult. This then led to Trymore Chinondida and Gift Tendai joining in and striking the accused with logs. The accused produced a knife and picked a brick and then charged towards the deceased. Amos Makuyana restrained the accused and dragged him out of the homestead but the accused could not have any of that; he broke free and ran back to the yard and picked a stone which he threw towards Gift Tendai but missed and struck another. The accused picked another brick and struck the deceased on the head. The deceased sustained a depressed skull and fracture from which he died.

There being no disputed facts, the following exhibits were tendered as evidence by consent.

A confirmed warned and cautioned statement by the accused, exhibit I. The post mortem report by Dr Tapi and affidavit showing cause of death, exhibit 2 and exhibit 2(a) respectively.

A weight certificate showing weight of the brick used to strike the deceased, exhibit 3 and pieces of the broken brick exhibit 3a, and, finally, the sketch plan and key drawn by sergeant Zvenyika, exhibit 4.

The circumstances surrounding the matter having been already captured in the Statement of Agreed Facts and supported by the documentary evidence tendered having been accepted and admitted to by the accused we found no reason to question the stance of both the State and defence counsel who sought for a conviction of culpable homicide.

Accordingly, the accused is found guilty of culpable homicide.