MOYO J: 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
14th 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
15th 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 once on the left elbow.
The
state counsel also tendered the affidavit by Constable Isaac Jacob who is the
officer
who identified deceased's body to the
pathologist. It was marked Exhibit 2.
The
post mortem 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.
We accordingly find the accused person not guilty of
murder and however proceed to convict
him of the offence of culpable homicide.
Sentence
The accused person stands convicted of the offence of
culpable homicide. He pleaded guilty to
that charge, he is a first offender, he was aged 16
years at the time of the commission of the
offence. A misunderstanding arose between him and his
cousin. He went to school only up to
the level of Grade 7.
He is from a poor and unsophisticated background. It is unfortunate that
children who cannot be kept in school due poor
backgrounds then find themselves in these
situations where they lack proper guidance and have no
direction in life.
We
need to emphasise however, that loss of life through violence is a cancer that
is eating
into our society and violence has suddenly taken over
out there, where people butcher each other
on the slightest of misunderstandings. This, the court should express its
displeasure at. The
personal circumstances of the accused person however,
bring in weighty mitigation, he was 16,
immature, and acted spontaneously and has nothing to
show for himself as a background.
Parents
should be conscitised that raising children is work and despite their being in
poor moral
community they should try to bring up children with an acceptable level of
education. Even
if one goes up to grade seven, vocational training institutions are there, to
assist
with skills for different trades that our youth can
engage in rather than being idle and finding
themselves in
this kind of predicament. We agree with
the submissions made by all concerned
that a noncustodial sentence would meet the justice of
this case.
We
accordingly sentence the accused person to 5 years imprisonment with 2 years
imprisonment suspended on condition the accused person
performs 420 hours of community
service at Garanyemba clinic.
The
remaining 3 years imprisonment are wholly suspended for 5 years on condition
the
accused person
is not within that period convicted of an offence of which violence is an
element
whereupon conviction he shall be sentenced to
imprisonment without the option of a fine.
National Prosecuting Authority,
the state's legal practitioners
Messrs Moyo and Nyoni, accused's legal practitioners
