MOYO
J: The
accused person in this matter faces a charge of murder, with being
alleged that on or about 16 March 2002, at Nelson Nare Mudau's
homestead the accused person acting in common purpose with others
assaulted Nelson Mudau who subsequently died from the injuries
sustained in that assault.
The
accused person pleaded not guilty to the charge of murder but instead
offered a limited plea to the charge of culpable homicide. The State
counsel accepted that limited plea. The parties drew and tendered a
statement of agreed facts and it read as follows:
1. The
deceased Nelson Nare Mudau was aged 68 years at the time of his
death.
2.
The accused person was 46 years at the time of the commission of the
offence.
3.
On the 16th
day of March 2002 after the results of the general election had been
announced the accused person attended election victory celebrations
with a group of ZANU PF members and perpetrators who were found
guilty of culpable homicide and who have since served their
sentences.
4.
As these ZANUPF members were walking from the celebrations in groups,
another group which was ahead made largely of ZANUPF youth and the
perpetrators an altercation ensued as they passed the homestead of
the now deceased person.
5.
The accused's group which was following behind became aware of the
commotion. Realizing that the perpetrators were in the homestead of
the now deceased person, the accused person also ran to the now
deceased homestead.
6.
The accused person entered the homestead of the now deceased person
and because it was dark and there were a lot of people and the
accused is well known in the area he was identified as one of the
perpetrators acting in common purpose with the perpetrators who were
assaulting the deceased and the deceased's family members with
fists and sticks resulting in deceased suffering injuries.
7.
The accused understands the elements of common purpose and realizes
that he associated himself with the acts of the principal
perpetrators and did not do enough to disassociate himself with their
said culpable conduct which led to the deceased's demise.
8.
The following morning the deceased was taken to Beitbridge Rural
Hospital and was later transferred to Gwanda Provincial Hospital.
9.
On the 22nd
day of March 2002 the deceased passed away at Gwanda Provincial
Hospital as a result of the injuries sustained during the assault.
10.
On the 27th
day of March 2002 a post mortem was conducted on the remains of the
now deceased and the cause of death was found to be:
(a)
Septic Shock;
(b)
Severe Peritonitis; and
(c)
Assault.
11.
The State and Defence Counsel agree that the accused and the
perpetrators' negligence and actions caused the death of the
deceased.
The
post mortem report was also tendered and gives the cause of death as;
(a)
Septic Shock;
(b)
Severe Peritonitis; and
(c)
Assault.
The
facts before us do not sustain the charge of murder but instead point
towards a verdict of culpable homicide. The accused person is thus
found not guilty on the charge of murder but is convicted on the
lesser offence of culpable homicide.
Sentence
The
accused person stands convicted of culpable homicide. He pleaded
guilty to this charge, he is a first offender, he is a family man and
a breadwinner. The deceased was related to him through his wife. He
is nearing the afternoon of his life considering that he is now 60
years old. He has waited for justice for 14 years not because of his
own actions. He acted in common purpose with others in committing
this offence.
His
co-accused were sentenced to an effective 10 years imprisonment.
This
court should however be alive to the fact that a life was
unnecessarily lost, through violence, political violence is a cancer
in our society that needs to be addressed as our Constitution grants
everyone freedom of conscience and political belief. There is no need
for people to butcher each other simply because one's ideology
differs from theirs. Politics is like religion, whilst it can be a
sensitive subject, people should learn to respect other's views
whilst believing in their own. Again, its surprising that the accused
and his team were celebrating victory after winning an election, how
could they then be fighting when they had already won? The accused
and his co-accused acted in an immature manner on the day in
question. A life was lost in circumstances that did not call for a
loss of life.
It
is our considered view that despite the mitigating features on the
accused's personal circumstances, and the circumstances of the
commission of the offence, this court has to maintain a proper
balance between those two, and the interests of society. These three
pillars constitute the interests of justice. It cannot be the
interests of justice that the court views the accused's
circumstances and that of the commission of the offence without
considering in the interests of the society at large, lest we
undermine the confidence of the public in our courts. It is for these
reasons that, after considering the mitigation and balancing it with
the aggravating features, also taking into account the period of
imprisonment given to his co-accused, the accused person will be
sentenced to 8 years imprisonment.
National
Prosecuting Authority,
State's legal practitioners
Samp
Mlaudzi and Partners,
Accused's legal practitioners
