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                                                                                                                                                                Judgment No. HB 70/15

                                                                                                                                                      Case No. HC (CRB) 177-78/14

                                                                                                                                                                         Inyathi CR 23/01/14

THE STATE

versus

NOTHANDO CHITANGU

and

ENIAS NDUNA

HIGH COURT OF ZIMBABWE

MAKONESE J

HWANGE 18 MARCH 2015

Criminal Trial

Miss N. Ngwasha for the state

Mrs D Zihove for the accused

MAKONESE J:        The accused who is a female juvenile aged 17 years appeared in this court on a charge of murder.  The state alleged that on 4 January 2014 and at B17 Turkmine Compound, Inyathi, in the Province of Matabeleland North, the accused wrongfully, unlawfully and intentionally killed and murdered Polite Muduneko, a female juvenile aged 6 years.  The accused pleaded not guilty to the charge of murder and tendered a plea of guilty in respect to the lessor offence of culpable homicide.  The state accepted the limited plea.  We are indeed satisfied that the concession by the state was properly made.

The state and the defence tendered a statement of agreed facts (Exhibit 1).  In brief the agreed facts are that the deceased was aged 6 years at the time she met her death.  The accused was aged 16 years at the time of the alleged offence.  In December 2013 the accused met and fell in love with one Enias Nduna at Turk Mine, Inyathi.  The accused and Enias Nduna stayed together at house number B17, Turk Mine Compound as lovers.  The accused who had brought along with her the deceased decided to remain at Turk Mine compound with the young juvenile.  Enias Nduna was not happy with the continued stay of the deceased at the compound and instructed the accused to return the deceased to her parents at Gokwe.  The accused and deceased were related in that deceased’s father was a maternal uncle to the accused.  The accused failed to return the juvenile to her parents and tension began to grow between the accused and Enias Nduna.  On or around 1 January 2014 accused assaulted the deceased all over the body using a cooking stick.  The accused had been angered by the fact that the deceased had soiled the blankets.  The accused then assaulted the deceased on subsequent dates.  The deceased complained of body pains arising from the assaults, the deceased was not taken to hospital.  The deceased died on 5 January 2014.  On realizing that the juvenile was lifeless, the accused strapped the deceased on her back and proceeded to Zimbabwe Republic Police, Inyathi where she made a report to the police.  Initially, the accused lied that the child had collapsed and died as they were walking to the police station.  An investigation led to the arrest of the accused and Enias Nduna as there was evidence that the juvenile had been subjected to physical abuse.

The state produced (Exhibit 2), the Post Mortem Report.  Dr S. Pesanai is a qualified medical practitioner attached to United Bulawayo Hospitals.  On 6 January 2014 the pathologist examined the remains of the deceased and compiled his findings in a Post Mortem Report number 21/21/201.  As a result of the examination, the Dr concluded that the cause of death was:

(1)        bronchoaspiration

(2)        fractured femur

(3)        homicide

            On further external examination, the Post Mortem Report reveals that there were marks of violence consisting of multiple abrasions on the back and the buttocks, abrasions on the shoulder, and forearm, abrasions on the chest, abrasions on the left parietal and thighs, and abdomen.  The deceased also suffered a fractured femur.  On internal examination the Post Mortem Report indicates that the deceased sustained a scalp haematomas on the right and left side.  There was extradural haematoma on the right side parietal region.  There was evidence of hyperinflated bilateral bronchoaspiration in the lungs.  The stomach was full of porridge like contents.

            A broken wooden cooking stick was tendered into the record as Exhibit 3.  The cooking stick is 21cm long.  Its width at the widest part is 10cm, and at the narrower point its width is 5,5cm.  Its weight was not provided.

            On the evidence presented before us we acquitted the accused on the main charge of murder and convicted her on the lessor charge of culpable homicide.

            The accused admits that she acted negligently in causing the death of the deceased.  The accused’s boyfriend, Enias Nduna was absolved from any liability and discharged because the state failed to secure any credible evidence on his role in the assault.  The court is not entirely convinced that Enias Nduna was an innocent bystander in this matter but in the absence of any other evidence, the court has no option but to rely on the available and admitted evidence.

            The accused has been convicted of culpable homicide which is a very serious offence.  She pleaded guilty and all the mitigating facts have been adequately canvassed by her legal counsel.  These factors include the following.  That she is a female, juvenile first offender.  At the time of the commission of the offence she was aged 16 years.  She lacked sufficient maturity to care for and look after another juvenile, the deceased who was aged 6 years.  She was thrust with the onerous task of looking after another child, when she herself was a child.  She had no parental supervision herself and yet she was expected to cater for the needs of a young child aged 6 years, who usually requires the tender loving care and attention.  This error is placed squarely on the doorsteps of both the deceased’s and accused’s parents.  In assessing an appropriate sentence the court must be mindful of the fact that the courts are very slow to commit juvenile offenders to prison.  A number of decided cases have settled the position that wherever possible, juvenile offenders must not be exposed to the polluting environment of prison.  Care must be taken that the sentences imposed against juveniles are rehabilitative and reformative, rather than penal in that nature.  The aim and objective when sentencing a juvenile is to ensure that the juvenile is rehabilitated and reintergrated into society.  It has been indicated that the accused has spent well over a year in Khami  Prison.  This is not a ideal situation at all as that prison does not cater for juvenile offenders and is not a reformatory.  The accused should not have been exposed to the harsh prison conditions which will have a long term effect on her social well being.  State counsel correctly pointed out that International Legal Instruments such as the United Nations Convention on the Rights of the Child, which define a a child as a person under the age of 18 years, call for for  non-custodial sentences, and non-penal sentences that offer rehabilitative forms of punishment in relation to juvenile offenders.  The African Charter on the Rights and welfare of the child (OAU) also provides similar protections on the rights of juvenile offenders.

            See the cases of S v Zaranyika 1995 (1) ZLR 270; S v Malanga HH 218/93; S v Lehnberg and Another 1976 (1) SA 214 and S v Muguti SC 218/92.

            The common thread that runs through the cases referred to is that as a general rule juvenile offenders should be spared the agony of imprisonment, unless there is no suitable punishment for the particular offence.

            I now turn to the present case.  A probation officer’s report was tendered into the record.  It reflects that the accused person’s family has been living in the rural areas as long as the accused can remember. Their rural home is in Gokwe in Chief Sahi’s area.  During the time of the offence the accused was co-habiting with her boyfriend Enias Nduna.  The area where accused was staying with her boyfriend is an area where a large number of people are into gold panning.  The accused was exposed to an unfamiliar environment and her involvement with a boyfriend at her age of 16 years is indicative of the fact that she has lost moral direction.  The prognosis given by the probation officer was that accused was a first offender who had admitted committing the offence and had shown remorse.  At the time of the offence the accused was already pregnant.  When she appeared in court she had given birth and had an eight month old baby to look after.  The recommendation was that she be placed in a reformatory or training institute in terms of the provisions of section 351 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

            It is my considered view that whatever sentence the court shall impose must take into consideration the following factors:

(a)        the seriousness of the offence

(b)        the interests of justice

(c)        the interests of the juvenile offender as well as the interests of the accused’s 8 month old baby;

(d)       the period spent in custody by accused before trial.

            I accordingly, order that the following sentence is appropriate, taking into account all the circumstances of the case:

1. Accused is sentenced to 2 years imprisonment wholly suspended for 5 years on condition, accused is not within that period convicted of an offence involving violence and for which she sentenced to a term of imprisonment without the option of a fine.
2. The accused shall forthwith be released from prison and transferred to an institution, namely, NORTHCOT, Harare for supervision for a period of 2 years.
3. Upon the expiration of the period of 2 years the accused shall be discharged from the institution into the custody of her parents or a guardian.

National Prosecuting Authority, the state’s legal practitioners

Mashindi and Company, the accused’s legal practitioners