The State v Enayi Hlahlo

### Preamble
1
HB 96-19
HC (CRB) 34/19
XREF ZHOMBE CR 61/12/04
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THE STATE

versus

ENAYI HLAHLO

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Ms C J Baye and Mr A B Mpofu

GWERU CIRCUIT 23 MAY 2019

Criminal Trial

N Chikuni for the state

P Nyeverai for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 21st of December 2004, and at village Mhlahlo Chief Gwesela, Zhombe, the accused, unlawfully caused the death of Tinos Mhlahlo by striking him on the head with a stone.

The accused person pleaded not guilty to the charge of murder, but instead offered a limited plea to the charge of culpable homicide.  The state counsel accepted that limited plea and the parties drew and tendered a statement of agreed facts, it was marked Exhibit 1.  It reads as follows:

1.	EnayiHlahlo (hereinafter called the accused) was aged 27 years at the time of commission of the alleged offence.  He resided at Village Mhlahlo Chief GweselaZhombe in the Midlands Province.

2.	Tinos Mhlahlo (hereinafter referred to as the deceased) was aged 32 years when he met his death.  He resided in the same village with the accused.

3.	On the 21st of December 2004 and about 2000 hours, the deceased in the company of Manager Mhlahlo and Mike Mhlahlo proceeded to accused person’s homestead.  They wanted to resolve to family dispute.

4.	The deceased then demanded to know the reason why the accused had taken away his cattle from deceased without adequate notice.

5.	This resulted in a confrontation between the deceased and accused, and eventually degenerated into a fight.

6.	Manager Mhlahlo and Mike Mhlahlo made efforts to stop the fight without success.

7.	The deceased picked up a brick and tried to hit the accused with it, but the accused blocked it.

8.	The accused then picked up a stone and threw it at the deceased hitting him on the head causing him to collapse.

9.	The deceased was resuscitated and taken to his homestead.  The deceased only sought medical attention on the 26th of December 2004, but died before reaching the hospital.

10.	Matter was reported to the police, and accused was arrested.

11.	On 30 December 2004 the deceased’s remains were ferried to Mpilo Hospital where Dr. I. Jekenya conducted a post mortem, and concluded that the cause of death was:

-	meningitis

-	skull fracture

-	head injury

-	assault (murder)

12.	The accused accepts the evidence of the state witnesses and contents of the post mortem report.  The accused denies having requisite intension to kill in the form of doluseventualis or dolusdirectus.

Rather the accused acknowledges that through his conduct aforesaid, he was negligent in causing the death of the deceased.

13.	The state concedes to the fact that the accused was negligent in the manner he assaulted the deceased, and therefore accepts the accused’s plea of culpable homicide.

The post mortem report was also tendered and marked Exhibit 2.  It gives the cause of

death as:

Meningitis

Skull fracture

Head injury

The accused person, on the basis of the evidence tendered before this court, is accordingly found not guilty of murder but is instead convicted on the lesser charge of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He is a first offender.  He pleaded guilty to the appropriate charge.  He has waited for justice for 14 years.  He is a family man and a breadwinner.

The loss of life through violence is unacceptable in our society.  However, the accused, if he had been tried and sentenced timely, he could have been sentenced to between 3 -5 years effective.  He would have finished his sentence by 2009.  The interests of justice demand that such an accused be spared a custodial sentence.

The accused person is accordingly sentenced as follows:

1.	That he pays a fine of RTGS $500-00 or in default of payment 12 months imprisonment such fine to be paid on or before 24 June 2019.

2.	In addition the accused is sentenced to 3 years imprisonment wholly suspended for 5 years on condition he is not within that period convicted of an offence involving violence whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Mavhiringidze and Mashanyare, accused’s legal practitioners