BERE J: The accused was
initially charged with the crime of murder of his 4 year old daughter
at Anna Ndlovu's homestead, Madlambuzi in the Province of
Matabeleland South. The accused pleaded not guilty and offered a
limited plea of guilty to the lesser charge of culpable homicide,
which plea was accepted by the State culminating in a statement of
agreed facts to the following being submitted.
“1. That the accused resides at
his own homestead at Stand number 12 Village 5, Anna's homestead,
Madlambuzi in the Province of Matabeleland South. The deceased was
aged 4 years and was also resident at Stand number 12 Village 5,
Anna's homestead, Madlambuzi.
2. On the 26th
September 2015 at around 1700 hours accused arrived at Anna's
homestead, where he resides, from a part time job. The accused had
passed through a friend's homestead where they drank opaque beer.
3. Upon his arrival, the accused,
as the deceased's father, was informed that the accused was now
disobedient and did not take instructions from other people at the
homestead. At that time the deceased was playing at a neighbour's
homestead.
4. When the deceased arrived home
the accused told her to go and fetch the goats. The deceased took
longer than anticipated and the accused decided to follow her. After
the accused left to look for her, the deceased arrived in the company
of Zodwa Moyo. The accused rounded up the goats and penned them.
5. When accused returned home he
reprimanded the deceased for her disobedience, coming back home late
and failing to do chores like rounding up the goats and penning them.
6. The accused then took the
deceased to his bedroom where he chastised her by hitting her with a
Jathropha switch. The accused then took the deceased to the kitchen
so that she could eat her supper. The deceased however did not eat
much as she was still grumpy for being chastised. The accused then
slapped her once on the face with an open hand and then took her to
the bedroom where he chastised her again with a Jathropha switch.
7. The accused then laid the
deceased on the floor where she slept and he slept on his bed.
Towards the early hours of morning the deceased woke the accused up
as she felt pressed and needed to use the toilet. The accused
accompanied her outside and came back to bed.
8. In the morning the accused
went to the field and left the deceased sleeping. When the accused
person returned, he asked his sister, Pasca Tshuma, where the
deceased was and she told him that the deceased was still sleeping.
The accused tried to wake up the deceased but to no avail. The
accused then informed his young sister, Pasca Tshuma, and Gladys
Ncube, a neighbour.
9. The accused person pleads not
guilty to murder but pleads guilty to culpable homicide in that he
did not intend to kill the deceased. He only sort to chastise the
deceased and did not foresee that death will ensue.”
The post mortem report (exhibit
I) gave the following as the cause of death of the minor child.
(i)
Traumatic Shock.
(ii)
Multiple Traumas on the body, subarchnoid haemorrhage.
(iii) Multiple Traumas due to
beating injury.
Having considered the
circumstances of this case the court found the accused not guilty to
murder but guilty of culpable homicide.
In our assessment of sentence we
have considered the following factors in mitigation.
(a ) At the time this offence was
committed the accused was aged 23 years and a youthful offender.
(b) He has spent 1 year in prison
awaiting the conclusion of this case.
(c) We are also alive to the fact
that the accused has pleaded guilty and registered remorse for his
conduct.
(d) The negligent killing of the
deceased is likely to haunt the accused for life and the fact that
the accused has spilt his own blood is significant.
In aggravation we have taken note
of the following;
(a) the manner of chastising this
little girl was excessive, it went beyond the bounds of moderate
chastisement.
(b) As correctly pointed out by
the State counsel, the manner in which it was carried out borders on
recklessness.
(c) The little girl looked up to
the accused as her father and protector who unfortunately turned out
to be her killer.
As a court, we pride ourselves as
the upper guardian of all children in this country and this case
represents extreme child abuse by any standard and the conduct
exhibited by the accused in persistently hitting the child with
several switches of different sizes summarises the seriousness of
this offence.
The accused is sentenced to 8
years imprisonment 3 years of which will be suspended for 5 years on
condition the accused does not within that period commit any offence
involving violence upon the person of another and for which upon
convicted shall be sentenced to a term of imprisonment without the
option of a fine.
Effective sentence 5 years
imprisonment.
Prosecutor General's Office, state's legal practitioners
Mlweli Ndlovu & Associates, accused's legal
practitioners
