The State v Delight Khumalo

### Preamble
1
HB 137/25
HCBR 2903/25
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THE STATE

Versus

DELIGHT KHUMALO

HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr. T.E Ndlovu and Mr. J.  Zulu

HWANGE 24 JUNE 2025

Criminal trial

M. Dube, for the state

C. Manyeza, for the accused

KABASA J:	You appear before us on a charge of murder to which you pleaded not guilty but tendered a limited plea of guilty to culpable homicide.  The state accepted the limited plea.

With that acceptance a Statement of Agreed Facts was tendered.  The facts are to the effect that on 16 December 2024 at around 0300 hours the now deceased arrived home and went to your mother’s bedroom hut intending to assault his daughter.  You were attracted to your mother’s hut by the commotion.  You went there and tried to talk to the now deceased to stop what he was doing but he charged at you.  You then took a log and struck him twice on the head.  You and your mother took him to hospital but he succumbed to his injuries.

The cause of death was severe brain injury, severe head trauma as a result of an assault.  The log used weighed 1,55 kg and was 186 cm in length.

There is no dispute you caused deceased’s death but can it be said you set out to kill and achieved that result or you foresaw the possibility that death could occur but carried on nonetheless?  We think not.  The deceased was aggressive and would not listen to your mother.  He charged at you and you felt threatened.  Your use of a log was however disproportionate to the danger the deceased posed.  You were therefore negligent in averting danger in a manner that was excessive in the circumstances.

The state’s acceptance of a limited plea is therefore an appreciation of the facts and the law.  You are accordingly found guilty as pleaded.

Sentence

This is one case where, arriving at an appropriate sentence is an odious task.

You are a 24 year old first offender who pleaded guilty.  You showed contrition in tendering the plea of guilty and even in your countenance.

You went up Grade 7 because your mother could not raise funds for school fees.  Your father is deceased.

You spent 6 months in pre-trial incarceration.  The person you killed is your own brother.  You will live with this tragic incident for the rest of your life.  The mental imprisonment far exceeds the imprisonment which comes with the four corners of a prison cell.

Your mother lost a son to death and losing another to prison is likely to take a heavy toll on her.  She is 60 years old and you are the one looking after her.  She is of ill health.  You now take care of her as well as the deceased’s daughter.

The victim impact statement shows that your mother is pleading with the law to be merciful. It is raw with emotion. Tampering justice with mercy is not showing maudlin sympathy for an offender but it ensures a sentence which is fair, rational and just.

Your brother was the aggressor and had shown disrespect to your mother by barging into her bedroom hut at such an odd hour.

In aggravation is the fact that a life was lost.  Violence does not solve anything.  Your use of a log was not called for. You could have escaped but that would have meant leaving your sick mother and deceased’s daughter at deceased’s mercy. Not an easy choice in the circumstances.

The courts have time without number implored society to respect the sanctity of life.

The mitigatory factors far outweigh the aggravating ones.  You deserve a second chance.  This is not the type of offence that is likely to be repeated.

A wholly suspended sentence will meet the justice of the case.  You are accordingly sentenced to:-

3 years imprisonment, the whole of which is suspended for 5 years on condition you do not within that period commit an offence of which an assault or violence on the person of another is an element and for which upon conviction you are sentenced to a term of imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Mhaka Attorneys, accused’s legal practitioners