MOYO
J: 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
22nd 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
22nd 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 post-mortem report was also read and tendered with the
consent of Defence Counsel. It states that the cause of death
was (1) aspiration
(2) haemorrhagic shock
(3) stab wound
(4) homicide
It further states the deceased was stabbed with a sharp
object like a knife.” The post-mortem report was marked Exhibit II.
State Counsel said the murder weapon has since been misplaced by the police.
I accordingly find the accused person not guilty on the
charge of murder but convict him of the lesser charge of culpable
homicide. State counsel, accused is a first offender. The accused
person is convicted of the offence of culpable homicide in that on the 22nd
of June 2012 at Sihlengeni Primary School grounds the accused stabbed deceased
with an okapi knife once on the left side of the chest. I have considered
that the accused person is a first offender, who pleaded guilty to the offence
of culpable homicide that he was aged 25 years at the time of the commission of
the crime, that he has already spent 1 year 8 months in remand prison and that
he surrendered himself to the police. When sentencing an accused person,
the court has to look into his personal circumstances, which are the ones live
alluded to above, they indeed give mitigation on his behalf. The court
however has to look further than that, that is, also look at the circumstances
of the commission of the offence and the interests of society at large.
In this case the accused person, together with the deceased were at a training
session at a school ground. An argument ensued between accused and
deceased over a ball tackle, and as deceased moved away from deceased, the
accused drew an okapi knife from his trouser pocket and stabbed deceased once
on the left side of the chest. Such circumstances aggravate the accused's
conduct to a very great extent. Why did the accused person carry an okapi
knife on his person at a soccer match? This is a specified weapon
which is lethal hence its specification and it is an offence to merely have it
in your possession. As if the mere possession of the okapi knife was not
bad enough, the accused uses it to stab the deceased in circumstances it did
not warrant any physical force at all. Arguments are a normal thing in
our day to day lives in society. We can't do things the same way, neither
can we think our talk the same was, but we should be to laceration of each other's
divergent views and opinions about anything. Surely a person can not be
killed for an argument over a ball tackle.
Otherwise all of us will be killed in the most brutal of
ways if a message is not sent out there, and strong, that people should desist
from violence and learn to tolerate others who hold different views from
theirs. The deceased was killed for absolutely no reason at all and this
must be condemned in the strongest of terms. The weapon used also
exacerbates the whole situation as in the league of an okapi carrying a knife
on its own is aggravating in which the circumstances the accused committed the
offence. The part of the body that was aimed at, the vulnerability of the
left side of the chest as it contains prominent life organs should be
condemned. The stab wound was 5 x 1 x 2cm and the left lung was
perforated. The degree of force applied was severe to bring about such a
laceration. We find the circumstances in which the offence was committed
and to be grave in that all that happened leading to deceased's death had no
basis at all. At this juncture the interests of society then come
in. This court must indeed discourage people like accused from moving
around carrying lethal weapons. The court must also show its disapproval
of the unnecessary loss of lives where people are just killed for nothing,
wherein if you differ in opinion with the next person, you are killed for
that. That can not be allowed and a strong message surely must be sent
out there, that the unnecessary loss of lives is unwarranted. See S v
Khumalo HB 143/11. The accused is accordingly sentenced to 12 years
imprisonment.
Dube company, accused's
legal practitioners
Criminal
Division, Attorney General's Office,
state's legal practitioners
