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CRB 82/17

HMA 24/17

THE STATE

versus

CHIPO MANDOMBO

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 15 & 16 May, 2017

Assessors

1. Mr Mutomba
2. Mr Dauramanzi

Sentence

Mr T. Chikwati, for the State

Mr B. Hazangwi, for the accused

MAWADZE J:  This matter brings to the fore the scourge of domestic violence which has afflicted our society leading to ghastly consequences, which include the loss of life.

It is saddening to note that spouses are meeting their demise at the hands of those who have taken vows to love them forever. Domestic violence now transcends gender and a significant number of males or husbands are now also victims like in the instant case.

The accused and the now deceased were husband and wife. They had 4 children aged 13 years, 9 years, 6 years and 2 years. The youngest child is a boy.

On 25 December 2016, a Christmas Day, a day which was supposed to be one of merry making and celebration by families, turned into a tragic nightmare for both accused and the now deceased who were at their home at Village 8 Mkwazi, Mkwasine in Chiredzi. The now deceased decided to slaughter accused’s goat for a feast during the Christmas period. They owned only 3 goats. The accused refused and a quarrel ensued. The now deceased insisted that he was the father of the house and would slaughter the goat. He proceeded to sharpen a knife for that purpose. The accused would have none of it. She ran to the goat pen and proceeded to open it in order to release the goats. The now deceased followed her to the goat pen armed with the knife. The accused then took one of the poles at the goat pen and struck the now deceased several times on the head, on the back and on the legs. The hapless husband was severely injured and later taken to Chiredzi District Hospital where he was transferred to Masvingo hospital and then to Parirenyatwa hospital. The now deceased passed on on 30 December 2016. The cause of death was right epidural haematoma arising from the assault on the head.

Initially when the trial commenced the accused was facing a charge of murder. Evidence was led from the couple’s daughter, the 13-year-old girl who was an eye witness to the altercation and assault. Thereafter both the state counsel and defence counsel found each other after taking into account the provisions in Part XIV, s 256 to s 259 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] which deal with the defence of property, in particular s 259 thereof.

It was clear from the evidence led that the accused resorted to fatally attacking the now deceased after she had taken all other possible steps to protect her goat. She had no other means to protect the goat after she tried to open the goat pen but was prevented by the now deceased. Considering that accused is simply a poor peasant woman this goat was of vital importance to her. The family owned only 3 goats.

The now deceased had simply insisted that he wanted to slaughter the goat despite the accused’s protestations and had not offered to compensate her in any manner. The requirements in s 258 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] are therefore met. Be that as it may, the means the accused used to prevent the now deceased from slaughtering the goat were not reasonable in the circumstances. The accused subjected the now deceased to a sustained and brutal attack. She used a very big log which she lifted with two hands to strike the now deceased several times on the head despite that the now deceased was helpless and did not fight back. The defence of property in the circumstances can therefore only be partial defence to the charge of murder as is provided for in s 259 of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. The accused can thus be properly found guilty of culpable homicide.

In assessing the appropriate sentence, we have considered that the 31-year-old accused is a female first offender. While s 56 of our Constitution provides for equality and non-discrimination before the law, it is trite in our law that female first offenders are treated more leniently than males. In that regard what can be termed as “positive discrimination” is in order. It is fact that we have more male prisoners than females in our country despite that women constitute 52% of our population. It is also not far-fetched that recidivism is more in males than in females. The accused is now a widow and a single parent, albeit out of her own making. She now has the burden of looking after their 4 children, a responsibility she cannot outsource to other persons for an unreasonable long time.

While the accused has been in custody from the time of arrest the pre-trial period is just about 4 months and is therefore not an important mitigatory factor. It is however mitigatory that accused will live with the fact that she is responsible for the demise of her husband. Society may never forgive her and this stigma may last forever. To make it worse she may have to explain this uncomfortable fact to her own children. In our view this is some measure of punishment.

The evidence adduced from accused’s daughter shows that the marriage between the parties has always been a turbulent one. The daughter said accused and the now deceased were always quarrelling and exchanging blows. This may explain why this seemingly minor misunderstanding ended up with such tragic consequences. This dispute may as well have been evidence of a troubled marriage.

The now deceased from the facts of the matter was unwilling to consider the accused’s protestatations. He insisted that he wanted to kill the goal and was determined to do so.

In aggravation the court has to consider the sanctity of human life. While the offence of culpable homicide is premised on negligence, a life was needlessly lost over a simple issue involving a goat. The accused being a woman is not generally expected to act in such a violent manner but to value life and act with restraint. The said goat can never be equated to human life.

It is aggravating that this offence was committed in the full view of the couple’s 13-year-old daughter. This should have been a very traumatic experience to her.

It is apparent that the accused was determined to inflict serious harm upon the now deceased. A fellow woman and neighbour Betty Mudzingwa could not restrain the accused. As already said the extent of brutality exhibited by the accused is shocking to say the least. In that regard accused deserves to be punished. This court has a duty to ensure that cases of domestic violence which often lead to loss of life are never condoned. The accused clearly failed to live up to the standard expected of a reasonable person.

In all the circumstances the following sentence would meet the justice of the case.

The accused is sentenced to 4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition 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. The effective sentence is 3 years imprisonment.

National Prosecuting Authority, counsel for the State

Ruvengo, Maboke and Company, pro deo counsel for the accused.