MOYO
J: The
accused person faces a charge of murder in that it is alleged that on
30 September 2013 he killed Qhubekani Ncube.
The
accused person pleaded not guilty to this charge of murder and
instead offered a limited plead to the charge of culpable. The State
counsel accepted this limited plea and tendered in this court a
Statement of Agreed Facts which was marked as Exhibit 1. It reads as
follows:
(1)
The accused person is facing a charge of murder in that on the 30th
of
September 2013 he killed Qhubekani Ncube, his half brother with
intent aforethought.
(2)
The accused person will plead not guilty to the charge but will plead
guilty to culpable homicide.
(3)
The accused person and the deceased made arrangements on the 30th
of
September 2013 to meet at Sanzukwi Shopping Centre for a beer-drink.
The accused person arrived at the shops before the deceased and
started drinking with some friends.
(4)
The deceased subsequently joined the accused person and his friends
after a while and the parties continued drinking. After some time,
the deceased person had a misunderstanding with one Shepherd Ncube,
when Shepherd objected to the deceased's friend joining them in the
beer-drink. During the misunderstanding, the deceased threatened to
kill some people just like he had killed someone in South Africa.
(5)
The accused person intervened and remonstrated with the deceased
person for boasting about killing someone in South Africa. The
deceased person did not take kindly to the accused's intervention
and alluded to that fact that the accused person would be dead by the
morning, which the accused person took to mean that the deceased
might attempt to kill him during the night. By this time, both the
accused person and the deceased were intoxicated.
(6)
The accused person advised the deceased to go home and sleep if he
was too drunk and stop fighting with everyone whereupon the deceased
left, whilst the accused person continued drinking with his friends.
(7)
The accused person later left for home and when he got to the
homestead he found the deceased person about to leave, pushing his
bicycle. On enquiring why the deceased person was leaving in the
middle of the night the deceased's response was that the accused
person should mind his own business and bear in mind that he might be
dead in the morning.
(8)
Getting concerned as the deceased person continued to mention that
the accused person might be dead in the morning, the accused person
then suggested that they go and see their father so that the deceased
person could explain himself, but the deceased refused and left.
(9)
As the accused person was concerned about what the deceased person
might do to him during the night because of his continued reference
to the accused demise by the morning, the accused followed the
deceased outside the homestead and grabbed him insisting that they
should go and see their father, whereupon the deceased person slapped
him very hard on the cheek resulting in the accused person
reflexively kicking out at the deceased person in self defence. The
deceased person fell down and the accused person then took a tree
branch/switch and hit the deceased person about three times whilst
the deceased was still lying on the ground.
(10)
Their father then arrived on the scene prompting the accused person
to stop hitting the deceased with the tree branch as abovestated.
(11)
When told to go back inside the homestead by their father, the
deceased person indicated that his abdomen was too sore whereupon the
accused person assisted to lift the deceased back into the homestead
where their father rendered first aid. After that the accused person
assisted to put the deceased into his blankets.
(12)
As the accused person was of the view that the deceased person was
exaggerating his injuries so that he could maybe surprise him during
the night and kill him, since he had kept referring to the accused
being dead by the morning, the accused person decided not to sleep in
the homestead that night and left without telling anyone and spent
the night at the mine where he works.
(13)
The next day, whilst still pondering how to approach his father about
the previous night's misunderstanding between himself and the
deceased person, he then received a call that his half-brother, the
deceased, had passed away.
(14)
The accused person was troubled and devastated by the news and spent
that day and the night in the forest not sure what to do. The next
day the accused person handed himself over to the police.
The
State counsel also tendered the post mortem report prepared by Dr S.
Pesanai. It gives the cause of death as:
(1)
peritonitis.
(2)
ruptured small bowel.
(3)
blunt force trauma.
(4)
assault.
On
the facts presented to this court the accused person is accordingly
acquitted on the charge of murder and is found guilty of culpable
homicide.
Sentence
The
accused person is convicted of the offence of culpable homicide. He
pleaded guilty to this charge. He is a first offender.
There
had been a misunderstanding between himself and the deceased. He
kicked the deceased once in the stomach resulting in injuries that
then caused deceased's death. The deceased was his half brother and
they were both intoxicated. He also assisted the deceased after the
assault. Guided by the principles set out in the case of S
v Sibanda
SC245/13 wherein the appellant was found to have accidentally chopped
the deceased's head whilst chopping firewood and that he was very
contrite and was a first offender. He had already spent a year in
custody.
Prior
to sentence, the Supreme Court held that nonetheless a life was
unnecessarily lost and that it is the duty of the court to mark its
abhorrence of such conduct and uphold the sanctity of life. In that
case the appellant was sentenced to six years imprisonment of which
two years imprisonment was suspended on the usual conditions.
Whilst
an axe was used in the Sibanda
case, the Supreme Court found that the chopping of the deceased's
head was an accident but held that accused should have been more
careful not to chop firewood with the deceased seated in that close
proximity.
We
find that the case before me, the moral blameworthiness is higher
than in the Sibanda
case for the accused was fighting with the deceased and kicked him
resulting in deceased's death. We are therefore of the view that a
sentence in the region of six years imprisonment, taking into account
that accused has already spent almost one year in prison, suspending
a portion would meet the justice of the case.
The
accused person is accordingly sentenced to 6 years imprisonment with
2 years imprisonment suspended for 5 years on condition the accused
person is not within that period convicted of an offence of which
violence is an element.
National
Prosecuting Authority,
state's legal practitioners
Calderwood,
Bryce Hendrie and Partners,
accused's legal practitioners
