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                                                                                                                                                                Judgment No. HB 64/15

                                                                                                                                                               Case No. HC (CRB) 32/15

                                                                                                                                                             Xref Jambezi CR 04/09/14

THE STATE

versus

MANGANISO NDLOVU

HIGH COURT OF ZIMBABWE

MAKONESE J

HWANGE 9 MARCH 2015

Criminal Trial

Miss N. Ngwasha for the state

Mr T. Nkala for the accused

MAKONESE J:        The accused is facing a charge of murder.  The state alleges that on 6 September 2014 and at hill at Gondwa village, Jambezi in the province of Matabeleland North, the accused did wrongfully and intentionally kill and murder Development Moyo a male adult in his lifetime.  The deceased was aged 27 years when he met his death.  The accused was aged 37 years at the time of the commission of the offence.

The accused pleaded not guilty on the murder charge but tendered a limited plea in respect of culpable homicide.  The state conceded that the plea to the lessor charge of culpable homicide was proper.  The court being satisfied that the limited plea was appropriate in the circumstances acquitted the accused on the charge of murder.

The state and defence tendered into the record of proceedings a statement of agreed facts in the following terms:-

            “STATEMENT OF AGREED FACTS

1. Accused resides at his own homestead Gondwa village, Chief Shana, Jambezi and was aged 37 years at the time of the commission of the crime.
2. The deceased used to reside at Judah Moyo’s homestead, Simadube village, Chief Shana, Jambezi and was aged 27 years at the time he met his death.

1. The accused and the deceased are not related.

1. On 6 September 2014 the deceased together with Simion Sinyanka Mathe were from a beer drink.

1. Along the way they heard people singing and proceeded to the overnight service being conducted by the Christ in Zion church led by the accused.

1. Deceased joined in the singing and sung along acting like he was possessed by spirits.

1. He held accused by the ears and poured “tototo” (traditional brew) over the accused’s head.

1. This angered accused who snatched a stick from a church mate and struck the deceased on top of the head once.

1. The accused tried to strike again but was stopped by Simion Sinyanka Mathe.

1. The deceased left the scene and fell to the ground where he died.

1. The accused person pleads guilty to culpable homicide in that he negligently caused the death of the deceased.”

The state tendered a Post Mortem Report (Exhibit 2) which reflected the cause of

death as:

1. epidural haematoma
2. head injury
3. assault

The Post Mortem Report further indicates that an external examination of the deceased revealed that the body was in a slight state of decomposition.  There was a swelling of the right perieto –frontal region with massive underlying muscle and soft tissue bruises.  On further internal examination, the report indicates that the deceased sustained a hair-line fracture of the sutural line joining the right and left parietal bones extending to the sutural line joining the right parietal and right occipital line measuring 12cm.  There was massive epidural haematoma (blood) clot of the right parietal and frontal brain region.  The conclusion of Dr. I Jekenya was that the severe force was used to assault the deceased.

           The court was satisfied that on the evidence presented before the court that accused was guilty of culpable homicide, in that he negligently caused the death of the deceased.  The accused was accordingly found guilty in respect of the lessor charge of culpable homicide.

           In arriving at an appropriate sentence, the court takes into consideration all the mitigating factors that have been advanced on behalf of the accused.  The accused who is aged 38 years is a first offender who pleaded guilty.  The courts will generally be lenient with first offenders but each case must be treated on its own merits.  The accused is a man of the cloth. The deceased who was hopelessly drunk arrived at the accused’s shrine and conducted himself in an unbecoming manner.  The accused, however, ought to have acted wisely and subdued the deceased with the assistance of his fellow worshippers.  If he had acted wisely he should have realized that the deceased needed spiritual salvation.  He should have controlled his “unholy anger” against the accused.  His violent reaction was uncalled for and resulted in the loss of human life.   The accused struck the deceased on the head with excessive force with a wooden stick with fatal consequences.  The Post Mortem Report (Exhibit 2) reflects that accused sustained the following injuries, resulting from the single blow:

(a)        epidural haematoma (i.e. bleeding)

(b)        head injury

(c)        assault

            It is beyond dispute that the accused used disproportionate force in that he delivered one single, decisive and fatal blow that ended the life of the deceased.  The courts have a duty to guard jealously the sanctity of human life.  The moral blameworthiness of the accused is on the high side.  The court will accept that accused was provoked by the accused who held him by the ear and poured beer over his head.  Cases of this nature are on the increase and the only appropriate sentence is a custodial sentence.  Any lessor sentence would tend to trivialize the offence.  Places of worship such as shrines are regarded as holy and sacred places.  The accused was expected to give spiritual guidance to lost souls.  He acted unreasonably and exhibited a high degree of recklessness.

            In my view an appropriate sentence would be as follows:

Sentence

8 years imprisonment, of which 2 years imprisonment is suspended for 5 years on condition accused is not within that period convicted of an offence of which violence is an element and for which he is sentenced to imprisonment without the option of a fine.

Effective sentence: 6 years imprisonment.

National Prosecuting Authority, the state’s legal practitioners

Dube and Company, the accused’s legal practitioners