MWAYERA
J:
In
this case a misunderstanding over desire to get beer on credit
degenerated into a fight which culminated in the loss of life of the
deceased one Shadreck Mashava.
The
accused pleaded not guilty to a charge of murder as defined in
section 47(1) of the Criminal Law (Codification and Reform) Act
[Chapter
9:23].
It
is alleged by the State that on 1 March 2017 at around 16:30 hours
and at Hlinzana Village Chagonda, Chief Mapungwana, Chipinge the
accused unlawfully and with intent to kill or realising that there
was a risk or possibility that his conduct might cause death
continued to engage in the conduct despite the risk or possibility,
assaulted Shadreck Mtetwa by using booted feet and fists several
times on the head thereby causing severe injuries on the head from
which the said Shadreck Mtetwa died.
The
accused in his Defence Outline which he adopted as evidence in chief
maintained that he had no intention to kill the deceased neither did
he have foresight that death may result. According to the accused the
deceased attacked him for refusing to give him beer on credit since
the deceased already had an outstanding debt. The first fight which
was through exchange of blows was restrained by one Robert Mapanda.
After about an hour the deceased came back to the accused's shop
demanding that he be given beer on credit. The two had a
misunderstanding and again a fight broke. The two engaged in fist and
open hand fight as none of them was armed and they were both
barefooted. The accused struck the deceased with open hands and fists
and the latter fell to the ground unconscious.
The
accused tendered a plea of guilty to culpable homicide. The State did
not accept the plea and hence proceeded to trial.
After
the close of evidence both counsels filed closing submissions
timeously. We are grateful to both counsels for the submissions.
It
is important to mention at this stage that the defence maintained its
plea of guilty to culpable homicide while the State conceded that the
circumstances of the matter and evidence adduced fell short of
establishing murder with actual intention. The State however, urged
the court to consider all the evidence adduced in relation to murder
with constructive intention as defined in section 47(1)(b) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
Most
aspects of the case are common cause. It is common cause the accused
and deceased had a misunderstanding over demand for beer on credit by
the deceased. The misunderstanding culminated in a fight which
occasioned a swollen forehead on the deceased. The deceased died as a
result of a head injury as per the post mortem report by Doctor
Sipeyiye Kudakwashe exh I refers.
Most
State witnesses evidence was formally admitted in terms of section
314 of the Criminal Procedure and Evidence Act [Chapter
9:07].
Thus evidence of Chipo Makuyana, Kenas Sithole, Evidence Mbiri,
Takesure Ngwenya, Donald Mhuru, Elias and Simbisai Masoka was on
common cause aspects.
It
was apparent from the State witnesses and accused's evidence that
on the fateful day the deceased who was drunk was unrelenting on his
demand for beer on credit from the accused. Further, when the accused
refused to give the deceased beer demanding clearance of an earlier
debt the deceased started shouting at the accused insisting he be
given beer then a misunderstanding degenerated into a fight of
exchanging blows.
The
accused and deceased were successfully separated by Robert Mapande
and the deceased walked away.
After
a while, the deceased came back and demanded beer on credit leading
to another misunderstanding. Again the two fought exchanging blows.
When the deceased aimed a blow which was ducked by the accused the
deceased fell and the accused then kicked the deceased on the head
resulting in the fatal injuries.
Whilst
the deceased was injured while on the ground the accused and the
other villagers rendered first aid till an ambulance ferried deceased
to hospital. The deceased then passed on upon admission at the
hospital.
The
oral evidence adduced from Tracy Paza, Lovemore Musiiwa and Robert
Mpande is in conformity with the admitted evidence of the other State
witnesses. The variance in detail and on number of kicks was clearly
understandable given some of the witnesses were at the scene
throughout, while others came out upon hearing noise and witnesses
like Tracy Paza were not constantly in attendance.
Tracy
Paza moved to the scene and back to her shop. She observed and when
she got scared left and later came back. According to Lovemore
Musiiwa and Robert Mapanda the accused kicked deceased once on the
head with bare foot. As a result of the kick on the head the deceased
sustained fatal injuries from which he passed on.
The
State witnesses Lovemore Musiiwa and Robert Mpande who gave oral
evidence gave evidence in a fashion indicative of simplicity and
honest. There were no exaggerations. They confined themselves to what
they observed unlike the State witness Tracy Paza who was bent on
reconstructions and hearsay and later explained she was on and off
the scene.
The
accused was the only witness in the defence case.
He
was consistent in his version of events of the day in question. His
confirmed warned and cautioned statement was tendered as exh 2 by
consent. The squabble was over desire by deceased to be given beer on
credit despite not having cleared the earlier debt. The accused
admitted he engaged in a fight with the deceased which culminated in
the deceased sustaining a head injury from which he died.
The
accused admitted to having negligently caused the death of the
deceased and thus maintained his plea of guilty to culpable homicide.
Having
been presented with the full evidence and circumstances of this
matter the court is left to decide on whether or not the accused
foresaw that death may result due to his conduct. In other words the
question is whether or not with the evidence adduced the State has
managed to prove beyond reasonable doubt that the accused was aware
or realised that there was a risk or possibility other than remote
risk or possibility that his conduct might give rise to the death of
the deceased.
Given
the sequence of events it would be stretching and shifting the onus
on the accused to prove his innocence beyond reasonable doubt so as
to impute legal intention on the part of the accused.
We
say so because there is no evidence placed before the court to show
that the accused engaged in conduct he engaged in with the
realisation that there is a real risk or possibility that his conduct
may cause death. There was no formulation of intention. The deceased
and accused fought.
The
deceased was aggressive and he pestered the accused culminating in a
fight. Despite being restrained the deceased came back and another
scuffle ensued.
There
is no evidence of the accused having armed himself to wade off the
attack from the deceased. The fight was with open hands clenched
fists and bare feet. The fact that the deceased was drunk does not in
any manner impute intention on the accused. The deceased was drunk
but knew what he wanted and what he was doing. The two were fighting
and the fact that the deceased was drunk is no basis for conviction
of the accused of a charge of murder.
When
the deceased fell to the ground he was kicked only once and the
accused offered help to try and resuscitate him.
There
is no evidence to show that despite realising the risk or possibility
of risk the accused was reckless as to the outcome.
It
is not in dispute that no weapon was used, further it is apparent
that the two were fighting and when the deceased fell he was kicked
once.
Upon
considering intention the court among other factors assess nature of
force used, the weapon and circumstances of the matter. See the case
of S
v Mema
HH143/13.
In
this case the accused was involved in a fight of exchanging blows.
There is nothing to show that the accused had actual or legal
intention to cause the death of the deceased. That the assault was
not protracted and that accused attempted first aid and called for an
ambulance immediately after the fatal blow suggests that the accused
had no requisite intention to cause the death of the deceased.
However,
when the deceased who was in a drunken stupor, fell to the ground the
accused was negligent in that he kicked the head causing injuries
from which the deceased died. The accused ought to have realised that
his actions may result in death but he failed to ensure or guard
against the possibility of death.
In
this case the accused person negligently failed to realise that death
may result from his conduct of kicking the deceased on the head
albeit bare footed.
Accordingly
the accused is found guilty of culpable homicide as defined in
section 49 of the Criminal Law (Codification and Reform) Act
[Chapter9:23].
Sentence
Sentencing
is a delicate exercise which places an onerous task on the court to
strike a balance between the offence, the offender, the interest of
justice while at the same time tempering justice with mercy.
The
submissions in mitigation and aggravation by both State and defence
counsel are of great value as they assist the court in coming up with
an appropriate sentence.
We
have considered all mitigatory factors submitted by Mr Mungure
on
behalf of the accused. The accused is a fairly young man of 33 who is
married and has family responsibilities. He is given as the bread
winner of his household which comprises of a wife and 4 dependant
children.
The
accused suffered pre-trial incarceration for 6 months and that is
certainly not an easy period. Even after being admitted to bail the
accused suffered the trauma which goes with the suspense of having a
murder case hovering over his head.
Mr
Mungure
has urged the court to take note of the circumstances surrounding the
offence given the lack of sophistication on the part of the accused,
a rural folk pestered for beer on credit by a man who owed him. The
two engaged in a fight not that the accused assaulted the deceased.
It was unfortunate that the accused negligently caused the death of
the deceased when during the fight he kicked the deceased's head
resulting in the fatal blow.
Further
in mitigation as adduced by defence counsel is the fact that from the
day of the commission of the offence the accused has shown
contrition. He regretted the violent conduct as evidenced by
rendering first aid and taking the deceased to hospital.
Further
the accused was consistent in admission of his negligence occasioning
the death of the deceased. Strictly speaking the accused pleaded
guilty to culpable homicide from the onset and ought to be given
credit for the genuine penitence and remorse.
He
also assisted the bereaved family during the funeral.
During
trial the accused also assisted in desire to have the matter
finalised by ensuring witnesses and himself attended. He did not
abuse his being on bail.
However,
no amount of compensation or remorse will bring back the lost
precious human life. A fairly young man was robbed of life and as
correctly observed by Mr Musarurwa
in circumstances where such loss of life could have been avoided. The
fact that the right to life is a constitutionally given right clearly
sends signals that no one has a right to take away that life.
Conduct
occasioning loss of life should be visited with appropriate
punishment so as to send the right signal to society.
The
court cannot condone and treat leniently people who resort to
violence as a way of resolving disputes.
In
this case the matter could have easily been resolved without accused
coming out of his tuckshop to fight. The accused behaved
irresponsibly.
Upon
weighing all mitigatory and aggravatory factors it is our considered
view that a short imprisonment term is called for. This is more so
given the nature of the accused, the offence committed and the
sentencing principles as enunciated in case law; see S
v Rubie 1975
(4) SA @ 620 and also S
v Harrison 1970
SA 684.
Both
counsel referred us to other case law which is relevant; see S
v Madungu and Another HMA33-18
wherein the court convicted two accused persons of culpable homicide.
In
that case the two accused kicked the deceased using booted feet
directing the blows to the head and upper part of the body until the
deceased was unconscious. The deceased eventually died as a result of
the negligent conduct of the two accused. The court sentenced each
accused to 2 years imprisonment of which 1 year imprisonment was
suspended for 5 years on the usual conditions of good behaviour.
We
acknowledge the reasoning behind the sentence in that case. However,
we wish to point out that sight should not be lost of the fact that
circumstances of each case are pivotal in passing sentence.
In
the circumstances of this case the convict is sentenced as follows;
3
years imprisonment of which 2 years imprisonment is suspended for 5
years on condition accused does not within that period commit any
offence involving the use of violence on the person of another for
which he is sentenced to imprisonment without the option of a fine.
National
Prosecuting Authority,
state's legal practitioners
Makombe
& Associates,
defence's legal practitioners
