IN THE HIGH COURT OF ZIMBABWE
MAKONESE J with Assessors Mr W Matemba and Ms C.J Baye
GWERU CIRCUIT 3 FEBRUARY 2020
M Ndlovu, for the state
A Chinamatira, for the accused
MAKONESE J: The accused has been arraigned in this court on a charge of murder. It being alleged that on 11th July 2017 at Mabhena village, Mpinda 3, Chief Malisa, the accused unlawfully caused the death of Pamela Mpanduki by striking her all over the body with a fan belt and axe several times intending to cause her death. The accused pleads not guilty to the charge. He tenders a plea of guilty to the lesser charge of culpable homicide. The state accepts the limited plea.
The agreed facts are as follows. Accused person was aged 42 years at the time of the offence. The deceased who was a juvenile aged 15 years was accused’s daughter. On the 11th of July 2017 at around 2100 hours the deceased was at home in the company of her mother and two siblings. The accused person arrived and indicated that he wanted to discipline the deceased. It had been alleged that deceased was having an affair with a certain young man in the village, one Pride Chando. The accused took a grinding mill belt made of rubber and invited the deceased into one of the huts. Whilst inside the hut the accused assaulted the deceased with the fan belt several times and indiscriminately all over the body. The accused subsequently left the homestead and proceeded to his tuckshop where he slept. Deceased’s mother attended to the injured juvenile and observed that she had sustained a cut on the head, had swollen forehead and bruises on her back. The deceased proceeded to sleep in her room. The following morning deceased’s mother found the deceased dead in her room. She had succumbed to injuries sustained during the assault. The matter was reported to the police. The accused was arrested. The accused denies intentionally causing the death of the deceased.
A post mortem report compiled by Doctor S Pesanai at United Bulawayo Hospital on the 17th July 2017, following an examination of the remains of the deceased reveals that the cause of death was:
On internal examination the post mortem report reflects that the deceased suffered a scalp haematoma on the left parietal and occipital regions. It is clear that the assault on the deceased was severe.
We are satisfied that on the evidence placed before the court, the accused negligently caused the death of the deceased. There is no evidence that accused’s intention was to bring about the death of the deceased.
In the result and accordingly the accused is acquitted on the charge of murder. Accused is found guilty of culpable homicide.
The accused is a businessman operating a tuckshop in Mabhena Village under chief Malisa. He was aged 42 years at the time of the commission of this offence. The accused has been convicted of culpable homicide. The court shall take into account the mitigating features of the case as set out by accused’s defence counsel. Accused is single. His marriage fell apart after the commission of this offence. The accused is now the sole breadwinner for 3 minor children. The children are aged 12 years, 10 years and 8 years respectively. The accused pleaded guilty to the lessor charge of culpable homicide. He has shown some measure of contrition. The accused spent 2 months in custody before he was granted bail pending his trial. The court must weigh the interests of the accused against the interests of justice. The accused is not a first offender. The state has tendered a certificate of previous convictions indicating that on the 18th March 2017 the accused was convicted of domestic violence. He was sentenced to 24 months imprisonment of which 12 months was suspended for 5 years on the usual condition of future good conduct. The remaining 12 month was suspended accused performed 360 hours community service commencing on the 27th March 2017. A memorandum from the Community Service Officer dated 30th January 2020 has been placed before the court and is in the following terms:
“The information we have as a department is that the offender Benjamin Mupanduki was re-arrested during the course of his performance of the Community Service.
This position was re-affirmed by the school senior teacher Mr Makayi. Contact number 0779526940 whom we contacted through the Headmaster Mr Mudzingira who happens to be new at the station.
He performed but never completed due to re-arrest.”
It is clear that accused person committed an offence involving violence and that the previous conviction is relevant. This court is enjoined to bring into effect the suspended prison sentence. Further the accused is not a suitable candidate for community service. He never completed the community service and went on to re-offend. Before passing sentence I requested the state to furnish this court with the circumstances surrounding the previous conviction. The record reflects that on 13th January 2017 accused asked for money from his wife’s sister. He wanted to buy some beer. Accused’s sister responded that she had no money since she was unemployed. This did not go down well with the accused. Accused’s wife tried to restrain the accused and in the process, the accused produced a machete from his trousers. Accused struck his wife twice on the neck and right middle finger. Accused’s wife sustained serious injuries. Accused went on to plead guilty in that case and was treated as a first time offender. In this present case, the accused has been convicted of a more serious offence of culpable homicide. The undisputed facts are that for suspecting that his daughter was having an affair with a young man in the village, the accused decided to take matters into his own hands and chastise the juvenile. In State v Agnes Chipika HB 129/17, this court had occasion to deal with a case whose circumstances are similar to the present case. A 36 year old mother killed her daughter by subjecting her to a prolonged attack with sticks before throttling her. The deceased in that case was 14 years old. This court sentenced the accused to an effective 2 years imprisonment inspite of weighty mitigating circumstances brought to the attention of the court. In that case I made the following remarks:
“Parents stand in loco parentis to their children. Parents are the last shelter for their children. The abuse displayed by the accused in this matter is shocking and alarming. There can be no human being, let alone a parent who would administer such rigorous physical punishment on a juvenile of 14 years. I reject the notion that it is our tradition to chastise young children in order to correct them by subjecting them to extreme punishment. This is not acceptable in a modern society. Parents who are convicted of such offences must invariably expect custodial sentences. This court would be setting a wrong precedent of a sentence other than a custodial one were imposed.”
I affirm the sentiments I made in that case. It is our view that the conduct of the accused is not acceptable. He brutalized his own daughter. He subjected to prolonged physical beatings using a fan belt and some other object. The injuries reflected in the post mortem reflect that accused died of
It would be a miscarriage of justice if accused person were to be handed a non-custodial sentence. Children deserve protection from their parents. Children have certain rights including the inahanable right to life. The accused’s behavior is appalling. His moral blameworthiness is high. He used excessive force on a defenceless juvenile aged 15 years.
In the result,
The court finds this to be an appropriate sentence:
“Accused is sentenced to 4 years imprisonment. The suspended sentence in Gweru CRB No. 404/17 of 12 months imprisonment is brought into effect.
The effective sentence is 5 years imprisonment.”
National Prosecuting Authority, state’s legal practitioners
Mavhiringize And Mashanyare, accused’s legal practitioners