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HMA01-16 - THE STATE vs KINGDOM HLAHLA

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Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Murder-viz culpable homicide re section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Indictment-viz plea of guilty proceedings re limited plea iro Statement of Agreed Facts.
Charge-viz guilty plea proceedings re limited plea iro Stated Case proceedings.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Murder-viz cause of death re postmortem report.
Procedural Law-viz rules of evidence re expert evidence iro post-mortem report.
Procedural Law-viz professional ethics.
Murder-viz culpable homicide re violent conduct.
Sentencing-viz culpable homicide re violent conduct.
Sentencing-viz pre-sentence inquiry re assessment of mitigatory and aggravating features.
Sentencing-viz mitigation re personal circumstances.
Sentencing-viz age considerations.
Sentencing-viz youthful offenders.
Procedural Law-viz rules of evidence re defences iro provocation.
Sentencing-viz special circumstances re provocation.
Sentencing-viz extenuating circumstances re provocation.
Murder-viz intention.
Sentencing-viz mitigatory features re plea of guilty.
Sentencing-viz mitigatory factors re guilty plea.
Sentencing-viz plea of guilty re remorse.
Sentencing-viz guilty plea re contrition.
Sentencing-viz first offenders.
Sentencing-viz mitigation re contritional compensation.
Sentencing-viz mitigatory factors re pre-trial incarceration.
Sentencing-viz aggravating factors re seriousness of the offence.
Sentencing-viz aggravation re prevalent offences iro deterrent sentences.
Sentencing-viz aggravating features re prevalent offences iro exemplary sentences.
Sentencing-viz retributive sentence.
Sentencing-viz rehabilitative sentence.
Sentencing-viz reformative sentence.
Sentencing-viz aggravation re degree of moral blameworthiness.
Procedural Law-viz rules of evidence re physical evidence.
Murder-viz intention re force used to strike a vulnerable part of the body.
Murder-viz intent re striking a sensitive part of the body.
Sentencing-viz community service.

Court Management re: Dominus Litis, Professional Ethics and Right of Audience Before the Court


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma. The now deceased died as a result of the head injury.

We are very grateful to Mr Chakabuda, for the accused, who agreed to take this matter at a very short notice after the pro deo counsel allocated the matter played truant with the Court.

The prejudice likely to arise from the postponement of the matter was thus avoided.

In addition to that, Mr Chakabuda made very detailed, well-researched, and meaningful submissions in mitigation despite the limited time he had to prepare the case.

Such conduct should be acknowledged and applauded.

Indictment or Charge re: Plea of Guilty iro Limited Plea, Plea Bargaining and Stated Case Proceedings


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury.

Murder re: Culpable Homicide iro Violent Conduct, Exceeding Limits of Self Defence and the Eye for an Eye Doctrine


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury.

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry


In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case....,.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H)....,.

A proper balance should be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable....,.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. 

A proper delicate balance should be achieved....,.

We are mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused..., we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused...,, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

Sentencing re: Murder iro Culpable Homicide (Road Traffic Accident)


It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings


It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

Sentencing re: Approach iro Contritional Compensation & Conduct of Accused Ex Post Facto Commission of the Offence


It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence....,.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

Sentencing re: Approach iro Incarceration Conditions and the Effect of Pre-trial Detention and Constitutional Rights Violations


In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

Indictment or Charge re: Constitutional Rights iro Arrest, Detention or Incarceration and Prosecution ito Approach


In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

Physical Evidence re: Approach iro Plea of Guilty Proceedings


The accused used a weapon, described as a log, despite that it was not produced in Court.

Physical Evidence re: Approach


The accused used a weapon, described as a log, despite that it was not produced in Court.

Defence of Diminished Mental Responsibility or Diminished Capacity re: Provocation iro Approach and Self-Control


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Sentencing re: Murder iro Culpable Homicide (Violent Conduct)


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Sentencing re: Approach iro First Offenders


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Sentencing re: Approach iro Community Service, Repeat Offenders and Considerations of Non-Custodial Sentences


The accused, who was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a Statement of Agreed Facts. In summary, the agreed facts are as follows:

On 7 August 2015, at about 16:30hrs, the accused, together with his cousin, Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased, for no good cause, started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log, which was in a wheel barrow pushed by one Emmanuel Munyeiwa, and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows, that, the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma.

The now deceased died as a result of the head injury....,.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. The accused possesses neither savings nor assets.

It is clear, from the agreed facts of this case, that there are mitigatory factors surrounding the commission of the offence as forcefully and passionately submitted by counsel for the accused.

It is trite, that, the rationale in punishing the accused for culpable homicide is not based on the accused's evil intent as the accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent: see S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public, to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note, however, is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane, and fair manner: see S v Ngulube 2002 (1) ZLR 316 (H).

In casu, the accused and his cousin were insulted, in a public place, persistently, for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment, he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned - it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view, this is a mitigatory factor.

It is in the accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H), a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses, although present, were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge, the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle, therefore, he should be treated with some measure of lenience.

It has been submitted, on the accused's behalf, that, the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid nine (9) herd of cattle to the deceased's family.

In our view, this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending the accused to prison, on its own, may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case, where an accused person has suffered from a lengthy pre-trial incarceration period, the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu, the accused was in prison for only two months after which he was granted bail pending trial, and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remains a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most humane, rational, and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public, in this case, expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact, that, we cannot overlook the accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious, and draconian. A proper delicate balance should be achieved.

We totally agree, that, we should pass a deterrent sentence in order to discourage the accused, and others of like mind, from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact, that, we should guard against excessive devotion to deterrence which may lead to a disproportionate sentence: see S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter, for reasons already stated, we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused, who is fairly educated, can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment, the accused's degree of negligence is high.

The accused used a weapon, described as a log, despite that it was not produced in Court.

It is clear the accused used severe force as the postmortem report shows that the accused fractured the deceased's skull.

The single blow was aimed at the delicate part of the body - which is the head.

The consequences were fatal, as the deceased passed on within a short period of time.

In our view, a fine, coupled with a wholly suspended prison term, as submitted by defence counsel, is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over-emphasized. No one has the right to take the life of another - whatever the circumstances.

The accused should know, that, self-control is important and be able to walk away from any provoking situation.

In the same vein, community service, which is preserved for non-serious offences, would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result, the accused is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Criminal Trial – Sentence

MAWADZE J: The accused who was initially facing the charge of murder as defined in s47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] was subsequently convicted on his own plea of guilty of contravening s49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The matter proceeded on a statement of agreed facts. In summary the agreed facts are as follows:

On 7 August 2015 at about 16.30hrs the accused, together with his cousin Natasha Maradza, were walking through a flea market in Chiredzi called Messina flea market. They passed near the now deceased who was drunk and the now deceased for no good cause started insulting them using vulgar and obscene language.

The accused tried to rebuke the now deceased to no avail.

In a fit of rage, the accused picked a log which was in a wheel barrow pushed by one Emmanuel Munyeiwa and struck the now deceased once on the left side of the head.

The now deceased fell down and was bleeding from the head. The now deceased was ferried to Chiredzi General Hospital where he was pronounced dead on arrival.

The post mortem report shows that the now deceased sustained a depressed skull fracture on the left temporal region with subdural haematoma. The now deceased died as a result of the head injury.

We are very grateful to Mr Chakabuda for the accused who agreed to take this matter at a very short notice after the pro deo counsel allocated the matter played truant with the Court.

The prejudice likely to arise from the postponement of the matter was thus avoided.

In addition to that Mr Chakabuda made a very detailed, well researched and meaningful submissions in mitigation despite the limited time he had to prepare the case.

Such conduct should be acknowledged and applauded.

In assessing the appropriate sentence, we shall endeavour to balance the mitigatory and aggravatory factors of the case.

We have considered the accused's personal circumstances. The accused is 28 years old and single. He is unemployed and is a holder of an Accounting Degree. Accused possesses neither savings nor assets.

It is clear from the agreed facts of this case that there are mitigatory factors surrounding the commission of the offence as forcifully and passionately submitted by Mr Chakabuda for the accused.

It is trite that the rationale in punishing the accused for culpable homicide is not based on accused's evil intent as accused had no intention to kill the now deceased. The accused is being punished for being careless and/or negligent. See S v Richards 2001 (1) ZLR 129 (S).

The idea is to encourage the accused and the general public to be cautious at all times in dealing with others and be wary of the safety of fellow human beings.

The accused failed in this regard and undertook an act which resulted in unnecessary loss of life. The most pertinent aspect to note however is that the accused acted negligently.

The facts of this case clearly show that the accused was provoked. This explains the reason why the accused committed the offence.

The motive or reason for committing an offence always assists the Court to properly assess the sentence in a meaningful, humane and fair manner. See S v Ngulube 2002 (1) ZLR 316 (H).

In casu the accused and his cousin were insulted in a public place persistently for no apparent reason by the now deceased. The accused tried to reason with the now deceased to no avail and he lost his temper.

At the spur of the moment he picked a log nearby and delivered a fatal single blow.

While the accused's conduct can never be condoned it is understandable.

He reacted to the uncalled for affront to his dignity and that of his cousin. In our view this is a mitigatory factor.

It is in accused's favour that he pleaded guilty to the charge.

As was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H) a plea of guilty immensely contributes to the swift administration of justice.

We have been able to finalise this case in a very short period of time without further waste to the State's resources. The State witnesses although present were spared of the possible trauma of testifying and spending further time at Court.

By admitting to the charge the accused is clearly contrite.

We shall therefore give due weight to this factor by according the accused a meaningful reduction of the sentence to be imposed and impose a minimum possible sentence.

It is in accused's favour that he is a first offender.

In principle therefore he should be treated with some measure of lenience.

It has been submitted on accused's behalf that the accused and his family engaged the deceased's family who demanded payment of 20 herd of cattle as compensation. The accused has since paid 9 herd of cattle to deceased's family.

In our view this gesture will go a long way to appease the now deceased's family and reconcile the two families.

Indeed, our criminal justice system should embrace these positive customs in our African traditional life.

While this will not bring back the lost life, sending accused to prison on its own may not serve the wide interests of justice. This is an aspect one may meaningfully consider after hearing full argument on the need to pay compensation to the deceased's family where a life has been lost. The pros and cons should be carefully weighed.

For now, we however take this gesture as a mitigatory factor.

The accused did not suffer much from pre-trial incarceration.

In a proper case where as accused person has suffered from a lengthy pre-trial incarceration period the Court would reduce the sentence to be imposed: see S v Difiri 2001 (2) ZLR 411 (H).

In casu the accused was in prison for only two months after which he was granted bail pending trial and had been in custody for less than a month after his indictment.

We shall therefore not place much weight on this factor.

The offence of culpable homicide arising from violent conduct remain a very serious offence which should generally attract a custodial sentence.

A proper balance should however be struck between the interests of the accused and those of the society: see S. v Mukome 2008 (2) ZLR 83 (H).

This is not an easy task to achieve a delicate balance between the conflicting interests. The cardinal rule is that the Court should strive to strike such a balance in the most human, rational and dispassionate manner.

Each case should be assessed on its own merits as a one size fits all approach is undesirable.

The public in this case expects the accused to be punished adequately for causing the unnecessary loss of life lest the criminal justice system is put into disrepute.

We are mindful of the fact that we cannot overlook accused's interests or personal circumstances lest the sentence we impose becomes unduly harsh, capricious and draconian. A proper delicate balance should be achieved.

We totally agree that we should pass a deterrent sentence in order to discourage the accused and others of like mind from needlessly resorting to violence to resolve disputes or misunderstandings. Such an exemplary sentence is called for.

We are however mindful of the fact that we should guard against excessive devotion to deterrence which may lead to disproportionate sentence. See S v Bhero 1994 (2) ZLR 66 (S).

As the saying goes, the accused should simply get his just desert.

While it remains important to punish the accused in this matter for reasons already stated we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say.

The sentence we shall impose should be rehabilitative so that the accused who is fairly educated can come back and be useful to society. The thrust should be to encourage reformation: see S v Chera & Anor 2008 (2) ZLR 58 (H).

In our assessment the accused's degree of negligence is high.

The accused used a weapon described as a log despite that it was not produced in Court.

It is clear accused used severe force as the post mortem report shows that accused fractured deceased's skull.

The single blow was aimed at the delicate part of the body which is the head.

The consequences were fatal as deceased passed on within a short period of time.

In our view a fine coupled with a wholly suspended prison term as submitted by Mr Chakabuda is inappropriate.

This is a serious offence where a life has been lost through violent conduct. The sanctity of human life cannot be over emphasised. No one has the right to take the life of another whatever the circumstances.

The accused should know that self-control is important and be able to walk away from any provoking situation.

In the same vein community service which is preserved for non-serious offences would trivialise this offence and send wrong and harmful signals to the accused and the public.

In the result the accused is sentenced to 3 years' imprisonment of which 1-year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.



National Prosecuting Authority, counsel for the State

Ruvengo Maboke and Company, pro deo counsel for the accused

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