The State v Farai Mlambo and Kudakwashe Mlambo

### Preamble
1
HB 203.19
HC (CRB) 91/19
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THE STATE

Versus

FARAI MLAMBO

AND

KUDAKWASHE MLAMBO

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr J H Sobantu and Mr M Ndlovu

BULAWAYO 14 NOVEMBER 2019

Criminal Trial

B Maphosa, for the state

Mrs S Padera-Drau, for the 1st accused

K Ngwenya, for the 2nd accused

MOYO J:	The 2 accused persons face a charge of murder, it being alleged that on the 30th of May 2011, and at Mopani Business Centre, Gwanda, the 2 accused persons struck Osbourn Mushana once on the head with a log intending to kill Osboourn Mushana.  He later died from the injuries sustained in the assault.

Accused 1 has pleaded not guilty to murder but has offered a limited plea to the charge of culpable homicide.  Accused 2 has pleaded not guilty to murder but has offered a limited plea to the charge of assault.  The state counsel accepted the limited pleas by both accused and the parties drew a statement of agreed facts which was tendered and marked exhibit 1.  It reads as follows:

The state and defence are agreed that the following issues are common cause being that:

The two accused persons are brothers residing at Mopani Compound, Gwanda.  The first, accused was aged 23 years while the second was aged 20 years at the time of the commission of the offence.

The deceased Osbourn Mushana was a male adult at the time he met his death.

On the 30th of May 2011 and at around 1930 hours the accused persons and the deceased were drinking beer at Mopani Business Centre, Gwanda.  When accused 1 and deceased were braaing meat at a braai stand a misunderstanding started which led to an exchange of words.

During the argument accused 2 intervened and slapped the deceased on the face once.  The deceased stumbled and tried to fight back.  The first then picked up a log and struck the deceased once on the back of the head.  The deceased fell down and lost consciousness as he bled from the head.

The two accused persons left the scene while other people assisted the deceased to get up and took him to a nearby grinding mill.

The deceased was found dead in the nearby bush the following day on the 31st of May 2011 at around 12 noon.

A post mortem was compiled on the 3rd of June 20111 by Doctor S Pesanai and cause of death was;

Subarachnoid haemorrhage

Depressed skull fracture

Assault

The defence counsels and the state counsel are therefore praying that the first accused be found guilty of culpable homicide whilst accused 2 be found guilty of assault.

The post mortem report was also tendered and marked exhibit 2.  It gives the cause of death as;

Subarachnoid haemorrhage

Depressed skull fracture

Assault

From the facts as tendered into the court record, accused 1 is found not guilty of murder but is instead convicted of the lesser charge of culpable homicide.  Again, from the facts as presented in the court record accused 2 is found not guilty of murder, but is convicted of the lesser charge of assault..

Sentence

The 1st accused is convicted of culpable homicide.  He is a first offender, he pleaded guilty to the appropriate charge.  He is a youthful first offender considering that he was aged 23 years at the material time.  He is a family man and a breadwinner.  He has waited for justice for 8 years though no fault of his own.  If the accused had been tried at the appropriate time, he would long have served his sentence, which could have been in the region of 5 years.  A life was nonetheless, lost in very unfortunate circumstances, and these courts frown at the loss of life through violence.

However, in coming up with an appropriate sentence these courts should balance all the pillars constituting the interests of justice, which are accused’s personal circumstances, circumstances of the commission of the offence and the public interest at large.  In this case the weighty mitigation is the fact that accused had to wait for justice for 8 years.  That on its own is punitive for he was anxious for 8 years not knowing what would become of his fate.  And the state should endeavour to bring accused persons to justice within a reasonable period of time, for it becomes unfair that a single youthful offender, waits for justice for 8 years until when his personal circumstances change as he now has children to look after.

It is for these reasons that this court will sentence accused 1 to 4 years imprisonment with 3 years imprisonment suspended for 5 years on condition accused 1 is not within that period convicted of any offence involving violence, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

With regard accused 2, he is convicted of assault, he is a first offender, he pleaded guilty and has also waited for justice for 8 years.  He is a family man and a breadwinner.  The degree of violence in his conduct is minimal in that he only slapped the deceased.  A fine would meet the justice of accused 2’s case.

It is for these reasons that accused 2 shall be sentenced as follows:

Accused 2 is sentenced to pay a fine of $1000 or in default of payment 3 months imprisonment.  He is given time to pay that fine by 30 November 2019.  In addition, 3 months imprisonment is wholly suspended for 5 years on condition the accused person, 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

Pundu and Company, 1st accused’s legal practitioners

T J Mabhikwa and Partners, 2nd accused’s legal practitioners