MAFUSIRE
J:
[1] The
accused, Fredrick Chafadza, 30, was charged with two counts. The
first was the murder of Charles Kudubva, 34 [“the
deceased”].
The second was the attempted murder of one Kudakwashe Musvamhuri
[“Kuda”].
[2] The
accused and the deceased had been friends. Both had been teachers at
some local primary school. The incident giving rise to the charges
occurred around midnight on 17 October 2013 at a rural bottle store
in Zaka, Masvingo Province.
[3] Uncontested
facts were that from about 17:00 or 18:00 hours the accused and the
deceased had been drinking beer at the bottle store. Also drinking
beer at that bottle store was Kuda and his friend or relative, Kizito
Mutongoza [“Kizito”].
There was an altercation between the accused and the deceased on the
one hand, and Kuda and Kizito on the other.
[4] The
State's case was that in an effort to strike Kuda with a piece of
wood, the accused missed. The blow caught the deceased on the
forehead. He fell down and never woke up again. He died on the way to
hospital.
[5] In
relation to the deceased, the accused was charged with murder as
defined in section 47[1] of the Criminal Law [Codification and
Reform] Act, [Cap
9:23]
[“the
Code”].
In relation to Kuda, the accused was charged with attempted murder as
defined in section 189, as read with section 47[1] of the Code. He
pleaded not guilty to both counts.
[6] The
accused alleged that it was Kuda who, on the night in question,
mercilessly pummelled the deceased with a log and killed him.
[7] Kuda
and Kizito were the key State witnesses. The intrinsic aspect of
Kuda's evidence was that sometime towards midnight the accused and
Kizito had an altercation.
[8] Kuda
said when he enquired of the accused what the cause of the
altercation with Kizito had been, the accused had responded by
slapping him. Kuda had retaliated. The two had fought. Their fight
had taken them outside the bottle store. Kuda said he had been
overpowered. He had run away. However, after a few metres he realised
he had left his sandals behind. He had come back for them. He saw
that the accused and the deceased had armed themselves with wooden
logs. He picked a stone to protect himself. The accused and the
deceased advanced. The accused swung the log to strike him. He
ducked. The blow missed. It landed on the deceased. The deceased fell
down and lay unconscious on the ground. The accused asked Kuda to
fetch some water so that he could render first aid to the deceased.
Kuda refused. By then Kizito had come out of the bottle store.
Together they walked away.
[9] Kizito's
evidence was more or less the same as that of Kuda. He denied he was
ever involved in the fight with the accused. He said as the accused
and Kuda fought outside the bottle, he had remained inside with the
deceased and the bar lady, one Tariro Kurengu [“Tariro”].
The deceased had later gone outside to join the fight. Later on he
heard Kuda shouting to the accused: “Look,
you have struck your friend!”
When he went outside he saw the accused dropping a log. The deceased
was lying prostrate on the ground. The accused asked Kuda to help him
resuscitate the deceased, but Kuda refused. He and Kuda went home.
[10] The
third State witness was one Dominic Mombeyarara Tofara
[“Mombeyarara”].
He was a teacher. He was also the village constabulary. He said he
had been friends with both the accused and the deceased.
[11] The
key aspect of Mombeyarara's evidence lay in what the accused
allegedly told him on that fateful night. It was common cause that
after the fracas at the bottle store, and the deceased lay dying, the
accused rushed to one Mike Mazhara Mutsava [“Mazhara”]
who was the village head and whose homestead was very close to the
business centre at which the bottle store was situated. Together with
Mazhara, the accused had proceeded to Mombeyarara to make a report.
Mombeyarara said the accused told him that he had accidentally struck
his friend, the deceased, when they had been fighting with Kuda and
Kizito. Mombeyarara further said that the accused said he could not
really understand what exactly had happened.
[12] It
was Mombeyarara who assisted the accused to arrange transport for the
deceased to be ferried to hospital.
[13] The
last State witness was police officer Trymore Hweta [“Hweta”].
He was the investigating officer. Among other things, he recorded the
accused's warned and cautioned statement. The significant aspect of
his evidence was that despite his being adamant that the accused had
confessed to him that he had mistakenly struck his friend, which
confession he had allegedly taken down in writing, in the warned and
cautioned statement, the accused completely denied the charge and
blamed Kuda for striking the deceased dead.
[14] After
the close of the State case, the defence applied for discharge in
terms of section 198[3] of the Criminal Procedure & Evidence Act,
[Cap
9: 07].
It reads:
“If
at the close of the case for the prosecution the court considers that
there is no evidence that the accused committed the offence charged
in the indictment, summons or charge, or any other offence of which
he might be convicted thereon, it shall return a verdict of not
guilty.”
[15] It
is trite that where the court considers that there is no evidence
that the accused committed the offence, it has no discretion but to
acquit: see Attorney-General
v Bvuma & Anor
and S
v Tsvangirai & Ors
. There are three basic considerations. The court shall
discharge at the close of the State case:
(a)
where there is no evidence to prove an essential element of the
offence [Bvuma
& Anor,
supra,
at p 102];
(b)
where there is no evidence on which a reasonable court, acting
carefully, might properly convict [Attorney-General
v Mzizi];
and
(c)
where the evidence adduced on behalf of the State is so manifestly
unreliable that no reasonable court could safely convict on it [S
v Tarwirei].
[16] In
applying for discharge, Mr Ndlovu,
for the accused, argued that Kuda and Kizito were accomplice
witnesses. This argument stemmed from the fact that it was common
cause that these two had also been initially arrested and charged
together with the accused for the alleged murder of the deceased.
They had remained on remand for close to three years as the matter
awaited trial. It was only towards the days of trial that they had
been removed from remand and turned into State witnesses.
[17] Mr
Ndlovu's
point was that as accomplice witnesses Kuda and Kizito had a major
reason to lie so as to completely extricate themselves from the crime
by blaming it all on the accused.
[18] Of
Mombeyarara, Mr Ndlovu
said he should not be believed. As the village constabulary, he had
all the powers of arrest. Yet on the night in question, not only had
he refrained from arresting the accused, but he had also allowed him
the freedom to ferry the deceased to hospital all by himself whilst
he [Mombeyarara] had remained behind. Therefore, the argument
concluded, it could be inferred that no such confession as alleged by
Mombeyarara had been made by the accused.
[19] Of
Hweta, Mr Ndlovu
said one only had to compare what he was saying in his evidence in
court with the contents of the warned and cautioned statement that he
himself had recorded from the accused, to see that no such confession
as alleged by him had been made by the accused.
[20] We
dismissed the application for discharge at the close of the State
case for lack of merit. Among other things, even though Kuda and
Kizito had once been arrested for the alleged murder of the deceased,
their evidence was quite incriminatory. They were not accomplices in
the sense that the term is understood in criminology. Regarding
Mombeyarara, nothing done by him on the night in question could
reasonably be used to impugn his evidence in court. Hweta's
evidence might have been unhelpful, but enough had been led by the
State to warrant the accused taking the witness' stand.
[21] When
he took the witness' stand, the accused maintained that it was Kuda
who had struck and killed the deceased. He alleged that both Kuda and
Kizito had been quite aggressive on the night in question. Kizito had
deliberately spilt opaque beer on his clothes when he had refused to
buy him a round. He said both Kuda and Kizito had at one time accused
the accused and the deceased of having stolen their cigarettes. They
had caused the bottle store entrance to be shut. Kuda had attacked
him unprovoked. He had chased him. At one stage Kuda had asked for
his knife. At another stage he had armed himself with a stone and a
log, threatening to raze the bottle store window panes to the ground
unless the entrance was reopened to enable him to assault and kill
the deceased.
[22] The
accused said the bar lady, Tariro, had eventually relented. She had
opened the bottle store door. But she had also ordered the deceased
out. Kuda had grabbed the deceased and had started to mercilessly
assault him all over the body. Fearing for his friend's life, the
accused said he grabbed a log and advanced towards where Kuda was
busy pounding the deceased. He said his intention was to scare Kuda
away and rescue the deceased. This had worked. He said he never had
to use the log because when Kuda saw him advancing, he ran away. But
as he ran away, Kuda shouted to the accused to pour some water on the
deceased. The deceased never woke up. The accused reported the matter
to the police. He also arranged transport for the accused to be
ferried to hospital.
[23] The
accused called Mazhara as his witness. The significant aspect of
Mazhara's evidence was that when the accused called on him for
assistance on the night in question, he informed him that the
deceased had been assaulted by Kuda.
[24] In
the closing submissions the State presses for a conviction on
culpable homicide, not murder. It sticks by the evidence of all the
State witnesses except Hweta. It argues that the accused intended to
assault Kuda but missed. He hit the deceased instead. It says the
fact that Kuda and Kizito had at one time faced the same charge of
murder as the accused, arising from the same incident, does not
affect the quality of their evidence in court. They remained
credible. Their version of events remained consistent.
[25] The
State further argues that Mombeyarara's evidence was robust. It
remained unchallenged. He had no reason to lie against the accused.
His evidence was supportive of that of Kuda and Kizito.
[26] The
State concludes by saying that even if the accused had intended to
ward off Kuda in defence of his friend, he had used excessive force.
He had used a very big log to hit a vulnerable part of the body, the
head. Thus such force, when used in defence of a person, was
unreasonable. For that, the accused should be found guilty of
culpable homicide as contemplated by section 259 of the Code.
[27] On
the other hand, the defence argues that the State has failed to
discharge the onus resting upon it. Not only was there no proof of
murder beyond any reasonable doubt, but also a conviction of culpable
homicide is inappropriate because the accused was entitled to defend
his friend who was under attack. The log that he picked was the only
available weapon. The accused had no other means to ward off the
unlawful attack on his friend.
[28] The
defence persists with the argument that Kuda and Kizito were
accomplice witnesses whose evidence should not be relied upon. The
defence also says that these two witnesses were furthermore shown to
have lied in respects that were not even material to the case. In
this regard, Mr Ndlovu
was referring to the issue of the kind of relationship between Kuda
and Kizito. Kuda said he and Kizito were half-brothers from their
mothers' sides. But Kizito denied it vehemently, referring to Kuda
as no more than one who had once been a herd boy at their homestead.
[29] Mr
Ndlovu
was also referring to the issue of Tariro's love relationship with
Kizito and the accused. Certain impressions had been given that
Kizito and the accused were rival suitors to Tariro. Kizito
begrudgingly admitted in cross-examination that the girl had once
eloped to him sometime after the incident, something he had seemed to
have concealed or denied.
[30] On
the apparent conflict between the evidence of Mazhara and
Mombeyarara, regarding whether or not the accused had confessed that
it was him who had struck the deceased, or whether he had said that
it was Kuda who had struck the fatal blow, the defence maintained
that Mazhara's evidence had to be preferred instead of that of
Mombeyarara for two reasons:
(1)
because the State had refrained from calling Mazhara as a witness as
it knew that he would contradict what Mombeyarara would be saying;
and
(2)
because Mombeyarara was unworthy of belief since there was no reason
why he had not promptly arrested the accused for the murder of the
deceased after he had allegedly confessed, but had, instead, left him
to ferry the deceased to hospital all by himself.
[31] We
have reached a verdict. In arriving at it we have analysed the facts
and the law under the following headings:
(a)
between Kuda and the accused, who struck the fatal blow on the
deceased?
(b)if
it was the accused, was it an aberratio
ictus
[deflected blow] situation?
(c)
if indeed it was an aberratio
ictus
situation, is the accused nevertheless guilty of the crimes charged,
or some other crimes?
[i] Who
struck the deceased?
[32] This
is a question of fact. It is answered upon a thorough consideration
of all the evidence led.
[33] Mr
Ndlovu
says Kuda and Kizito should not be believed because they were
accomplices to the murder. They were once arrested and remained on
remand for close to three years before they were turned into State
witnesses. As such, their evidence should not be accepted since they
had the motive and the intention to incriminate the accused and
thereby save themselves from any possible prosecution of the crime.
[34] But,
with all due respect, the defence is mistaken. In relation to the
alleged murder of the deceased, Kuda and Kizito were not accomplices
in the sense contemplated by section 267 of the Criminal Procedure
and Evidence Act, [Cap
9:07].
They were not turned into State witnesses and granted immunity from
prosecution on condition they answered all questions put to them
satisfactorily. As Mr Chikwati
explained, the State made the decision that the police had arrested
and charged them wrongly. There was no intention to prosecute them.
[35] An
accomplice is an accessory to the commission of the crime. He is not
the actual perpetrator. His liability stems from his own conduct
[coupled with the requisite mens
rea]
but which is accessory
in nature: see JONATHAN BURCHELL South
African Criminal Procedure
and S
v Williams.
The accomplice wittingly makes common cause with the actual
perpetrator of the crime. He affords the actual perpetrator the
opportunity, the means and the information that furthers the
commission of the crime. But he lacks the actus
reus
of the perpetrator.
[36] Plainly,
Kuda and Kizito fall outside the definition of an accomplice. If the
accused is to be believed, Kuda was the actual perpetrator of the
crime from his own individual act. If he should be charged, and the
accused's allegations were proved, Kuda would be guilty as the
actual perpetrator, not as an accomplice.
[37] We
are satisfied that the evidence of Kuda and Kizito is credible. We
are mindful that this is a tale told by drunks. They had all been
drinking opaque beer non-stop from about 17:00 hours of the previous
day to the early hours of the following day when the incident
happened. But the version by Kuda and Kizito is coherent. On the
other hand, the accused's version is unworthy of belief beyond any
reasonable doubt.
[38] We
consider the version by the accused unworthy of belief for a number
of factors. Although his warned and cautioned statement, his defence
outline and his viva
voce
testimony in court were all consistent on one thing: that it was Kuda
who assaulted the deceased, beyond that, everything else is
incoherent. For example, how Kuda ended up “mercilessly”
thrashing the deceased with the log; how he himself got pummelled by
the same Kuda on several occasions but each time managing to escape;
why only his log was recovered from the scene, and not the other logs
that Kuda and Kizito allegedly used; how the deceased would not let
out any sound as Kuda thrashed him; why, after pounding the deceased,
Kuda, on seeing the accused advancing armed with a log, he would
concern himself with the deceased's terminal condition to the
extent of advising the accused to pour water on the deceased as he
himself was running away; and so many other aspects, are some of the
inherent improbabilities in his evidence.
[39] The
post-mortem report that was produced without objection put the cause
of death as head injury and cervical subluxation [misalignment of the
seven uppermost vertebrae of the spine, the neck]. The doctor noted,
among other things, occipital haematoma [collection of blood at the
back of the head]. This is consistent with a full-on blow to the
head. The wooden log was produced in court. It was 2.32 metres long.
It weighed 3.565 kilogrammes. It was the only log recovered from the
scene. The accused admitted that it was the log that he carried on
the night in question. He denies ever using it. But that is like a
toddler denying raiding the cookie jar, or the sugar basin, when is
face and mouth are plastered all over with cookie crumbs or sugar
crystals!
[40] Mombeyarara's
evidence dovetailed with the rest of the other evidence led by the
State. His deportment was impressive. He did not strike as one who is
easily excitable. He was straightforward in his answers and his
explanations. In contrast, Mazhara, who was quite elderly, seemed too
eager to assist the accused whom he regarded as an uncle. He made it
evident that he owed the accused's lineage a debt of gratitude for
having allocated him the territory over which he reigned as village
head. At first he claimed he heard the accused telling Mombeyarara
the same thing that he had told him earlier on, namely that it was
Kuda who had assaulted the deceased. However, in further probing by
the court Mazhara changed his story and said he had heard nothing
since he was too sleepy.
[41] Mombeyarara
said he was friends with both the accused and the deceased. This was
not refuted. The accused tried to cast aspersions on his character by
alleging that he was jealousy that they did not patronise his bottle
store more frequently. That was manifestly a long shot which we
discount. It is our finding that the accused did tell Mombeyarara
that he had struck the deceased by mistake. It is our finding that it
was the accused that struck the deceased.
[ii] Was
the death of the deceased an aberratio ictus situation?
[42] An
aberratio
ictus
[or deflected blow] situation occurs where A, intending to kill B,
aims the blow at him but misses, the blow landing on C instead. If C
dies from the blow, whether or not A may be found guilty of murder or
of culpable homicide or of some other crime, depends on a number of
factors.
[43] Our
conclusion in this case is that the facts are classically an
aberratio
ictus
situation. Our finding is that on the night in question, following an
altercation, the accused armed himself with a huge piece of wood
which he swung with much force, intending to strike Kuda with whom he
was fighting; that Kuda ducked and the accused missed. The blow
landed on the deceased who had joined the brawl on the side of the
accused. The blow knocked the deceased down and he died on the way to
hospital.
[iii] Is
the accused guilty of the murder of the deceased?
[44] The
State has already conceded that the accused cannot be found guilty of
murder in relation to the accused. The concession is well made.
Certainly the accused had no actual intent to kill the deceased.
[45] For
a killing to be murder, both the mens
rea
and the actus
reus
have to converge in respect of the victim. In this case, the
accused's actual or direct intention to do harm [dolus
directus]
was aimed at Kuda. But the actus
reus
in relation to Kuda was not completed or successful. Instead it was
completed or successful in relation to the deceased. But since there
was no direct or actual intention in relation to the deceased, he
cannot be found guilty on that account.
[46] That
leaves the question whether the accused can be found guilty of the
murder of the deceased with legal or constructive intent [dolus
eventualis].
To do so, there must be a finding that the accused subjectively
foresaw his blow missing Kuda and landing on the person of the
deceased. A finding must be made that the accused was conscious of
the presence of the deceased within the reach of his log, and that
despite appreciating that his blow might miss and land on the
deceased, he nevertheless went ahead to swing, aim and thrust it.
[47] In
S
v Ncube
the accused was found not guilty of the murder of the deceased, his
brother, where, with the intention of stabbing their uncle with a
spear, the brother interposed in between and received the fatal blow.
The Supreme Court found neither actual nor legal intent on the part
of the accused.
[48] In
the present case, there was no such evidence as would enable the
drawing of an inference that at the crucial moment the accused was
conscious of the presence of the deceased standing next to him.
[iv] Is
the accused guilty of culpable homicide in relation to the death of
the deceased?
[49] Of
culpable homicide, the Code says in section 49:
“Any
person who causes the death of another person -
(a)
negligently
failing to realise that death may result from his or her conduct; or
(b)
realising that death may result from his or her conduct and
negligently
failing to guard against that possibility;
shall
be guilty of culpable homicide and liable to imprisonment for life or
any definite period of imprisonment or a fine up to or exceeding
level fourteen or both.”
[50] Thus,
negligence
[culpa]
is the bedrock of this crime. The yardstick to measure it is the
proverbial reasonable person, the diligens
paterfamilias.
Whereas with murder with legal intent the test is subjective: being
whether the accused himself did foresee the consequences of his
conduct, but nonetheless continued; with culpable homicide, the test
is whether a reasonable person would have foreseen the consequences
of the accused's conduct, and whether the accused failed to measure
up to that standard.
[51] It
is sometimes a very thin line between the worst form of culpable
homicide and murder with legal intent. In R
v John,
it was said murder [with legal intent] and culpable homicide are
closely related offences. Together, they cover the whole field of
criminal liability for bodily injury, the one taking over where the
other leaves off.
[52] In
this case the evidence did not clearly establish at what point during
the accused's altercation with Kuda did the deceased join in. The
accused's brawl with Kuda started in the bottle store. They ended
being outside. It seemed common cause that Kizito, Tariro and the
deceased at one point remained inside. But Kuda said when he came
back for his sandals he saw both the accused and the deceased armed
with logs. The accused himself said he armed himself with the log to
scare off Kuda who was mercilessly pummelling the deceased after he
had fallen down. So this means the accused ought to have been aware
of the presence of the deceased in the vicinity of the fight. He
might not have subjectively foreseen his blow missing Kuda, his
intended object, and hitting the deceased instead. However, he ought
to have appreciated the danger of arming himself with such a
dangerous weapon and plunging it forward when visibility was very
poor, and when he ought to have appreciated that some people other
than Kuda were nearby. We find that the accused was negligent and
that it was such negligence that led to the death of the deceased.
[v] Is
the accused guilty of attempted murder in relation to Kuda?
[53] Section
189 of the Code describes attempt in general as follows:
“189
Attempt
(1) Subject
to subsection (1) [sic],
any person who -
(a) intending
to commit a crime, whether in terms of this Code or any other
enactment; or
(b) realising
that there is a real risk or possibility that a crime, whether in
terms of this Code or any other enactment, may be committed;
does
or omits to do anything in preparation for or in furtherance of the
commission of the crime, shall be guilty of attempting to commit the
crime concerned.”
[54] Intention
is a necessary ingredient for attempted murder as it is for murder.
As mentioned already, the wooden log that the accused armed himself
with was over two metres long. It was over three kilogrammes in
weight. Undoubtedly, it was a dangerous weapon. Unquestionably, when
he armed himself with it his intention was to inflict considerable
damage on Kuda. The accused did act on his intention. He swung the
blow. He aimed it at Kuda. However, he missed because at the critical
moment Kuda ducked.
[55] Whether
the accused's conduct amounted to intention to murder or mere
assault is judged from all the surrounding circumstances. He must
have used tremendous force because the same blow that missed Kuda
killed the deceased. The blow caught the deceased on the forehead.
The post mortem report estimated the height of the deceased at 170cm
and his weight at 85 kilogrammes. Thus he was a man of medium built.
It seems as he plunged the log, the accused aimed at the upper part
of the body. Therefore, given the weight of the log, its length, the
force used and the region of the body aimed at, the accused intended,
or was undoubtedly reckless as to whether or not death would ensue if
his blow connected. He had the requested intention for murder.
[56] However,
despite our finding of dolus
for
murder in relation to Kuda, we nevertheless find that the actus
reus
was absent or incomplete. The blow did not connect. There was no
contact. Therefore, the accused cannot be found guilty of the
attempted murder of Kuda.
[57] Assault
is a competent verdict on a charge of attempted murder. In terms of
section 89[1][b]
of the Code, it is an “assault” if any person threatens, whether
by words or gestures, to assault another person, intending to
inspire, or realising that there is a real risk or possibility of
inspiring, in the mind of the person threatened, a reasonable fear or
belief that force will immediately be used against him or her. In
relation to Kuda, the accused did not merely threaten. He acted on
his intention.
[58] Defence
Counsel says, somewhat cursorily, and at the tail-end of the
argument, that the accused was entitled to defend himself and/or his
friend from Kuda's unlawful attack. No attempt at all was made to
analyse the requirements of this defence as defined in section 253 of
the Code to see whether it could apply to the accused's situation.
[59] The
Code sets out stringent requirements before the defence of person can
be available as a complete defence. From our conclusion earlier on
that it was the accused who armed himself with a log to strike Kuda,
we are satisfied that the defence of person is not available to the
accused because:
(a)
it has not been shown that the accused could not otherwise escape
from, or avert the alleged attack by Kuda [section 253(1)(b)];
(b)
it has not been shown that the means the accused used to avert the
attack were reasonable in all the circumstances [section 253(1)(c)];
(c)
most crucially, the harm done by the accused was on an innocent third
party [the deceased], not Kuda [section 253(1)(d)(i)];
and
(d)
the harm [the death of the deceased] was unquestionably grossly
disproportionate to that liable to be caused by Kuda who was unarmed
[section 253(1)(d)(ii).
[60] Again,
Defence Counsel lamely argues that the accused is not guilty because
he was drunk. But no evidence was led on what amount of alcohol the
accused had consumed. At any rate, in terms of Chapter XIV Part IV of
the Code, voluntary intoxication that leads to unlawful conduct is
not a defence to crimes committed with the requisite state of mind.
[61] In
the final analysis, the following verdicts are returned:
1.
The accused is found not guilty of the murder of the deceased,
Charles Kudubva, and is hereby discharged.
2.
The accused is found not guilty of the attempted murder of Kudakwashe
Musvamhuri, and is hereby discharged.
3.
The accused is hereby found guilty of culpable homicide for the death
of the deceased, Charles Kudubva, on 17 October 2013, at Cherechere
Business Centre, Zaka, Masvingo Province.
4.
The accused is hereby found guilty of assault on Kudakwashe
Musvamhuri on 17 October 2013, at Cherechere Business Centre, Zaka,
Masvingo Province.
[62] In
assessing sentence, the court has taken into account the very strong
mitigatory features that both the defence and the State have
highlighted. They include the following circumstances personal to the
accused:
(a)
He is a first offender. He is now 35 years of age. He was 30 at the
time of the commission of the offence. Thus, he has been a law
abiding citizen for much of his life. As much as possible, such
people should be kept out of jail.
(b)
He has two wives and four minor children. They all look up to him for
maintenance and support. Any period of incarceration will inevitably
result in much hardship to such dependants.
(c)
He is a trained teacher of relative experience. Jail will undoubtedly
cost him his job. Jobs being scarce, chances of getting another after
time in prison will be slim.
[63] Also
highlighted in mitigation were the circumstances surrounding the
commission of the crime. They include:
(a)
The deceased was a friend and a professional colleague. The accused
will have to live with the stigma of his death. It will probably
haunt him for the rest of his life.
(b)
There was nothing like premeditation or planning in the commission of
the crime. It happened on the spur of the moment in an effort to ward
off a common enemy. The accused and the deceased had gone to the
bottle together to enjoy themselves, not to look for trouble.
(c)
After realising that he had struck and severely injured his friend,
the accused did all he could to save his life, namely, applying crude
first aid, seeking help from the nearby village, and ferrying the
deceased to hospital. Unfortunately it was too little too late.
(d)
Given the length of time that they had been drinking, the accused
must have been drunk by the time of the commission of the offence.
Alcohol impairs one's sense of judgment. Furthermore, Kudakwashe
and Kizito were the aggressors. They provoked the brawl that led to
the demise of the deceased.
(e)
The crime was committed in 2013. The trial was concluded in 2018. It
was a long five year wait. The accused lived with anxiety and anguish
for such a long time awaiting his fate.
[64] Both
the defence and the prosecution have concurred that in the
circumstances of this case the appropriate sentence for culpable
homicide should be 3 years imprisonment, with one year suspended on
condition of good behaviour. For assault they propose a fine in the
region of $150 to $200, or a period of imprisonment in the region of
6 months which should run concurrently with the sentence for culpable
homicide.
[65] It
was evident that both the defence and the prosecution had no
conviction in the appropriateness of the kind of sentences they were
suggesting. It was evident they both felt a non-custodial sentence
would meet the justice of the case. However, they felt constrained to
suggest that type of sentence in view of the fact that an innocent
life was lost and that the sentencing trends by the courts in cases
of culpable homicide are to impose jail terms. Mr Ndlovu
cited the case of S
v Watanhuka
in which a wholly suspended 12 months jail term was imposed for
culpable homicide in circumstances which were roughly similar to
those of the present. Mr Chikwati
alluded to cases of culpable homicide, especially in traffic
offences, where sometimes the State declines to prosecute or where,
on conviction, the accused escapes with a fine.
[66] Counsel's
discomfitures are well understood. Sentencing is a complex exercise.
The cardinal principle is that in any crime the penalty must suit the
offence and the offender. In the present case we have wondered
whether if we imposed a custodial sentence, would the accused
appreciate the justice of the case? The error of his ways on the
night in question was undoubtedly to arm himself with a dangerous
weapon and to use it. But this was to ward off an unlawful attack.
However, given the manner the whole incident panned out, will the
accused appreciate that jail is the only form of retribution or
recompense or rehabilitation for the error of his ways? We think not.
[67] After
taking all the circumstances of this case into account, we have
settled for a non-custodial sentence. The accused is sentenced as
follows:
1.
Both counts [culpable homicide and assault] are taken as one for the
purposes of sentence.
2.
The accused is sentenced to a fine of three hundred dollars [$300],
or in default of payment, 3 months imprisonment.
3.
In addition, the accused is sentenced to 12 [twelve] months
imprisonment wholly suspended for 5 years on condition that during
this period he is not convicted of an offence involving violence for
which he is sentenced to a term of imprisonment without the option of
a fine.
24
May 2018
National
Prosecuting Authority,
legal practitioners for the State;
Ndlovu
& Hwacha,
legal practitioners for the accused, pro
Deo
1.
1987 [2] ZLR 96 [S]
2.
2003 [2] ZLR 88 [H]
3.
1991 [2] ZLR 321 [S] @ 323B
4.
1997 [1] ZLR 575 [S], at p 576
5.
Vol 1 General Principles of Criminal Law, 4th
ed., p 515
6.
1980 [1] SA 60 [A] at p 63
7.
1983 [2] ZLR 111 [SC]
8.
1969 [2] RLR 23
9.
HH342-13
