Criminal Trial
MAKONESE J: The 14 year
old Nobert Majoni died at the hands of her mother on the 10th
December 2015.
The accused was upset that the
deceased had consumed a certain quantity of rice which had been
reserved by Sibongile Chipika for consumption the following day. The
accused struck the deceased all over the body with switches and
throttled him leading to his death.
The accused pleads not guilty to
the charge of murder and tenders a limited plea of guilty in respect
of the lessor charge of culpable homicide.
The state has accepted the
limited plea and a statement of agreed facts have been tendered into
the record of proceedings as exhibit 1.
In brief the facts of this matter
are as follows.
The deceased was aged 14 years at
the time he met his untimely death. The accused is his biological
mother. Accused was aged 36 years at the relevant time. On the 9th
December 2015 and in the evening hours, the accused person, her
sister Sibongile Chipika, the deceased and two other children
gathered for supper where rice was served. Sibongile did not finish
her portion and reserved it for the following day.
On the 10th
December 2015, Sibongile discovered that her rice had been consumed.
The deceased was the prime suspect. The deceased was quizzed over the
missing rice and he failed to proffer an acceptable explanation.
This led to Sibongile roping in
Eunita Sibanda and Shyline Chipika to fetch some switches. The
deceased was then subjected to a prolonged assault on the head, hands
and legs using switches. The assault was sustained and was
indiscriminate and resulted in the deceased falling unconscious. At
some stage the accused throttled the juvenile with her bare hands.
The deceased died as a result of
injuries inflicted in the assault despite efforts by accused and
others to administer first aid by pouring water over the injured
juvenile.
The post mortem report compiled
by Dr Ivian Betancourt on 14 December 2015 has been marked as exhibit
2. The cause of death was undetermined due to the advanced state of
decomposition of the remains.
On the evidence placed before
this court we are satisfied that the limited plea has been properly
made and conceded by the state. There is no evidence that the accused
intended to cause the death of the deceased. The accused is
accordingly found not guilty and acquitted on the charge of murder.
The accused is however found guilty of culpable homicide.
Sentence
The accused is a vendor selling
sweets and airtime. The accused has been convicted of culpable
homicide. There exist weighty mitigating features of the case as
articulated by accused's defence counsel.
These shall all be taken into
account.
The accused is a single mother
with heavy social responsibilities with 5 children. The youngest is 8
years old. At this moment the children are in the safe custody of
their grandfather and grandmother. The accused has a low level of
education and is not sophisticated having gone up to grade 7. She
earned an average of $60,00 per month through her activities.
She spent 3 months in prison
before she was granted bail and has thus already served part of her
sentence.
She has through her defence
counsel shown genuine remorse and contrition and that is reflected in
her tendering a plea of guilty to culpable homicide.
The court must weigh these
mitigating features against the interests of justice.
Her moral blameworthiness is
excessively high. She not only assaulted the child for a sustained
and prolonged duration. She throttled the child and he eventually
fell unconscious.
The behaviour is not expected
from parents. Parents stand in loco parentis to their children.
Parents are the last shelter for their children.
The abuse displayed by the
accused in this matter is shocking and alarming. There can be no
human being, let alone, a parent who would administer such rigorous
physical punishment on a juvenile of 14 years.
I reject the notion that it is
our tradition to chastise young children in order to correct them but
subjecting them to extreme punishment. This is not acceptable in a
modern society.
Parents who are convicted of such
offences must invariably expect custodial sentences. This court would
be setting a wrong precedent if a sentence other than a custodial one
were imposed.
These courts would fail in their
duty of upholding the sanctity of human life if a sentence of
community service were imposed in this matter. The sentence this
court imposes must be just and fair and must meet the ends of
justice.
“Accused is sentenced to 5
years imprisonment of which 3 years is suspended for 5 years on
condition accused is not within that period convicted of an offence
of which assault or violence on another person is an element for
which she is sentenced to imprisonment without the option of a fine.”
The National Prosecuting Authority,
State's legal practitioners
Tavenhave, Machingauta Legal
Practitioners, accused's legal practitioners
