BERE J: 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 Criminl 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 1st of May 2015 at around 2000 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 I,
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.
Sentence
The accused has been convicted of a fairly serious offence in this
matter.
In aggravation, the court notes with extreme concern that the
accused negligently cut short the life of the deceased in sad and
disturbing circumstances.
What makes the accused's conduct highly reprehensible is the fact
that when the accused exhibited his aggressive conduct towards one of
his colleagues, Tafara Ndlovu by threatening to assault him over a
minor disagreement, it was the deceased who intervened and restrained
him from doing so.
When the accused turned his anger against the deceased by
threatening to strike him with an axe the accused was disarmed by
Brightwell Ndlovu. But alas! The accused did not accept the
responsible gesture demonstrated by his colleague. He instead chose
to be intransigent and demonstrated his resolve to fatally injure the
deceased by snatching another axe which turned out to be the murder
weapon.
This was an unprovoked assault which was brought about by the
evidently bullying attitude of the accused person.
Although this was a single strike, the weapon used was dangerous.
Axes are never meant to be used against fellow humans. A young life
was needlessly lost and the pain that the accused has caused to the
deceased's family cannot be under-estimated.
In mitigation the court notes the following factors; although this
offence is a heinous one, the accused is a youthful first offender
aged 15 and was evidently very emotional and remorseful about his
conduct. He regretted his conduct which resulted in the untimely
death of the deceased.
The probation officer's report suggests that this offence occurred
spontaneously with no traces of premeditation. It was out of
character with the accused person.
Above all, the report also speaks to the accused being a young man
who is capable of being reformed if put in an appropriate institution
where counseling and correctional measures can be undertaken. The
court has largely been guided by the recommendations made by the
probation officer. It is hoped the accused, given his youthfulness
will eventually end up as a more youthful member of society.
Both counsels were in agreement that this was a case where the court
could also lean on the guidelines spelt out in the African Charter of
the Rights and Welfare of Children in assessing what may be an
appropriate sentence.
In accordance with section 351 (2) of the Criminal Procedure and
Evidence Act Chapter 9:07 it is ordered that the accused be sentenced
as follows:
That the accused be taken before Lupane Magistrates' Court be
dealt with in terms of the Children's Act [Chapter 5:06].
National Prosecuting Authority, state's legal practitioners
Mashindi and Associates, accused's legal practitioners
