THE State V Kingston Mpofu

### Preamble
1
HB 268/20
HC (CRB) 85/20
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THE STATE

Versus

KINGSTON MPOFU

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Ms C J Baye and Mr A.B Mpofu

GWERU 21, 22 AND 23 SEPTEMBER 2020

Criminal Trial

M Ndlovu and Miss N Chikuni, for the state

Miss R Munemo, for the accused

MABHIKWA J:	The accused pleaded not guilty to the charge of murder as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act Chapter 9:23.  He denied the murder charge.  He pleaded guilty to culpable homicide.  The accused was 55 at the time the offence was committed.  He is now 65.  The agreed statement of facts filed of record shows that the deceased, Michael Moyo, who was himself 35 years old then, was a self-styled prophet.  Apparently, he was committing adultery with accused’s wife.

On the fateful day on 19 February 2010, he was at the accused’s home in the evening to pay adultery damages.  The accused refused the payment.  A misunderstanding ensued.  The deceased then assaulted the accused with a chisel on the nose.  The accused retaliated.  He in turn assaulted the deceased using an iron object that looks like a vehicle gear stick.  It has a combined mass of 1.8 kgs.  Its length is 47 cm and its head circumference is 17cm.  The accused in a fit of rage, used the object all over the body of the deceased several times.  The deceased was taken to Gweru General Hospital where he died 2 days later on 21 February 2010.

Doctor I Jekenya, who examined the remains of the deceased opinioned that the cause of the deceased’s death was:

(i)	Brain Haemorrhage

(ii)	Multiple injuries

(iii)	Assault

The state has accepted the accused’s plea to culpable homicide and the accused accepts the state’s evidence.  The deceased appears to have been the aggressor.  The adultery coupled with the self-styled prophet’s courage to assault the accused after committing adultery with his wife must have angered the accused greatly.  In any event, in the African culture and at the accused’s age, for the deceased to come on his own if that was so as shown, to pay the adultery damages was again a great sign of disrespect.  The state further conceded that the accused did not have the requisite intention to kill, whether in the form of actual intent or constructive intent.  We are satisfied that the state’s concession is proper in the circumstances.

Accordingly; the accused is found not guilty of murder but guilty of culpable homicide.

Sentence

It is clear from the record that the accused was highly provoked.  Firstly, the deceased was much younger than him, exactly 20 years his junior.  The deceased was a self-styled prophet and committing adultery with the accused’s wife.  Secondly, the deceased apparently went alone to the accused’s homestead “to pay adultery damages.” The accused refused to accept the “damages” and a misunderstanding arose.  In the African culture, approaching a man personally to pay adultery damages, moreso alone, would be regarded as highly disrespectful and provocative as if to brag about the adultery.

Thirdly, when the misunderstanding escalated, the deceased became the aggressor.  He struck the accused with a screw driver on the nose.  The accused picked up an object that looked like a vehicle gear stick and struck him all over the body in a rage.  He died as a result.  The offence occurred when the accused was 55 years old.  He is now 65.  He has waited for 10 years 7 months to be tried only for the offence to be reduced to culpable homicide which he has always pleaded guilty to as shown by his confirmed warned and cautioned statement.   In fact according to submissions by Ms R Munemo for the accused, the deceased would give a concoction to both the accused and his wife.  He would then tell them to sleep in the same room with him.  On three (3) occasions he did so and had sexual intercourse at night with the wife of the accused.  On the 3rd occasion, the accused woke up at night as he wanted to vomit.  He caught the deceased in the act.  It is not clear whether this was rape or consensual intercourse between the prophet and the wife whilst accused was asleep.  I say so because the use of the term adultery continuously, and in fact the rest of the circumstances like reporting to the chief and the adultery damages all give an impression of consensual intercourse.  However, that does not change the accused’s position.  He was wronged and deeply provoked.  The accused is now 65 and now appears frail.  He has waited for almost eleven years for the matter to be completed.  He himself spent 3 months in custody before admission to bail.

The court however, and as usual will not tolerate any loss of life no matter the circumstance.  My sister Justice, MOYO could not have put it more aptly in State v Dube HB 236-15 that there would be chaos in communities if people that are a nuisance would then be killed.  Every life is precious.  That is why people cry and there is a funeral each time a person dies even if that person is a thug, rapist or robber and hence the Shona and Ndebele adage to the effect that “the dead are always good.”  The deceased still was entitled to the protection and due process of the law.  Both counsel cited very incisive and relevant authorities in this case.  We are also guided by the cases of;

(a)	State v Alexander Khanye HB 33-18

(b)	State v Mangwanda HH 30-06

The state has however conceded that the accused’s circumstances need to be blended with mercy.  We believe that concession is proper.

In the circumstances, the accused will be sentenced as follows:

3 years imprisonment which is wholly suspended for 5 years on condition the accused does not, within that period commit an offence involving violence for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Gundu, Dube and Pamacheche, accused’s legal practitioners