THE State V Phathisani Maphosa

### Preamble
1
HB 58.20
HC (CRB) 37/20
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THE STATE

Versus

PHATHISANI MAPHOSA

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr A Ndlovu and Mr N Ndubiwa

HWANGE 9 MARCH 2020

Criminal Trial

Mrs Cheda, for the state

T.  Chimusani, for the accused

MOYO J:		Accused faces a charge of murder it being alleged that on the 21st of September 2019, the accused stabbed deceased Moses Nkomo with an okapi knife causing his death.  The accused pleaded not guilty to this charge and instead offered a limited plea to the charge of culpable homicide.  The state counsel accepted this limited plea and the parties drew a statement of agreed facts that was tendered and marked Exhibit 1.  It reads as follows:

1.	The accused was aged 43 years at the time of the commission of the offence and he resides at Phathi Ncube’s homestead, Maphane Line, Tsholotsho.

2.	The deceased was aged 39 years at the time he met his death.  He used to reside at his own homestead, Maphane line, Tsholotsho.

3.	The accused and deceased were neighbours.

4.	On the 21st of September 2019 and at 1700 hours, the accused and deceased were at Maphane Bottle Store drinking beer.  The deceased was drinking in the company of Roger Ncube.

5.	The accused was drinking on his own some 10 metres away.

6.	The deceased left Roger Ncube and approached the accused, spoke to him and later insulted him by saying “your mother’s clitoris you are proud of yourself.”  The accused uttered the similar insult to the deceased.  The deceased was offended and went behind the bottle store and came back with a log.

7.	He struck the accused thrice, once on the back of the head, once on his lower back and once on the left arm.

8.	Accused then took his bicycle and started to walk away.

9.	The deceased followed him with the same log and struck him once on the head.

10.	The accused produced an okapi knife and stabbed deceased once on the left side of the chest.

11.	The accused then cycled away.  The deceased then followed accused still carrying the log intending to strike him but he felt down and died on the spot.

12.	The police attended the scene, arrested the accused and recovered the murder weapon.

13.	The accused person pleads not guilty to murder but pleads guilty to culpable homicide in that he negligently caused the death of the deceased.

The post mortem was tendered and marked Exhibit 2, it gives the cause of death as:

Haemopneumothorax

Chest stabbing

Also tendered was the okapi knife that was allegedly used in the commission of the offence. and the log that the accused was allegedly attacked with.

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

Sentence

The accused is convicted of culpable homicide.  He is a first offender.  He had been drinking beer on the day in question.  Deceased was the aggressor both verbally and physically.  The accused tried to keep the peace by running away from the deceased.  Deceased nonetheless persisted and followed the accused, beating him up with a log for the 4th time after having beaten him thrice.  The deceased behaved in an annoying manner on the date in question.  He persisted in his provocation of the accused who nonetheless was seemingly not interested in violence.  A man can only do so much in a bid to avoid violence.  Although these courts do not condone the use of violence in settling disputes what would a man in accused’s circumstances do?   He had been beaten thrice with a big log but walked away, he was followed and beaten again.

The circumstances in which the accused lost it, though not justifiable are understandable to a certain extent.  What makes accused’s case very bad is the use of the okapi knife because it is a lethal and specified weapon which he need not be carrying in the first place.  Had accused also picked another log and sought to defend himself perhaps a non custodial sentence would be appropriate in these circumstances.  He however, used a lethal weapon and executed severe force.  For these 2 reasons, a custodial sentence will be warranted.  However, he still has credit to himself, that after being hit with a log in the size of Exhibit 4, he still took the peaceful route of walking away, it is only after deceased persisted that he reacted.  For these reasons accused will be given the bottom end of a sentence from the usual culpable homicide sentences.

It is for these reasons that the accused person will be sentenced to 3 years imprisonment with 2 years imprisonment 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

Mashindi and Company, accused’s legal practitioners