THE State V Shepherd Mashumba

### Preamble
1
HB 84-19
HC (CRB) 45/19
XREF HC GWERU RURAL CR 58/05/18
---------




THE STATE

versus

SHEPHERD MASHUMBA

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr A. B Mpofu and Mr M Ndlovu

GWERU CIRCUIT 20 MAY 2019

Criminal Trial

M Ndlovu for the state

B T Madziba for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 4th of May 2018, he caused the death of the deceased Amos Sibanda.  The accused person pleaded not guilty to the charge of murder.  He instead offered a limited plea to the charge of culpable homicide.  The state counsel accepted the limited plea and the parties drew a statement of agreed facts, which has tendered in court and reads as follows:

1.	Shepherd Mashumba, (hereinafter referred to as the accused) was aged 26 years at the time of commission of the alleged offence.  He resides at House number 117 Mkoba 6, Gweru and is not employed.

2.	Amos Sibanda (hereinafter called the deceased) was aged 33 years at the time he met his death.  He resided at Plot 4C Harben Park, Gweru.

3.	The deceased and the accused were not related.

4.	On the 4th of May 2018 the deceased arrived at Gweru City Centre aboard a Honda fit Registration Number ADX 2117, the car parked near Ok Supermarket.  There was a misunderstanding, between the deceased and the driver of the Honda fit over the fare that deceased was supposed to pay.

5.	The dispute attracted the attention of touts (including the accused) that were loading vehicles near Ok Supermarket.  The dispute was resolved when Mandla Zikhali, the driver of the Honda Fit accepted the $0.50 that the deceased was willing to pay.

6.	The deceased who appeared drunk remained seated in Mandla Zikhali’s car indicating that he wanted to go to Mtapa where Mandla Zikhali was also going, Mandla Zikhali refused to go with the deceased citing challenges that he had in getting the deceased to pay.

7.	Simon Sabenyu, who is also a tout at OK Supermarket undesignated rank opened the door of Mandla Zikhali’s car and made the deceased to get out.

8.	The deceased got out of the vehicle but remained near it.  The accused person came, held the deceased by the shoulders and pushed him backwards and was hit by a passing Freightliner articulated truck.

9.	The truck hit the deceased causing him to fall down and he was run on the left part of the chest by the front right wheel of the truck.

10.	The deceased was taken to Gweru Provincial Hospital where he died upon admission.

11.	The matter was reported to the police and the accused was arrested.

12.	The deceased’s remains were examined at Gweru Provincial Hospital on the 9th of May 2018.  DrLinos Popi who conducted the post mortem examination concluded that the cause of death was;

-	blunt chest and blunt abdominal trauma

13.	The accused accepts the evidence of the State witness as well as the post mortem report.  The accused denies having the requisite intention in the form of dolus directus or dolus eventualies to kill the deceased but acknowledges that through his conduct aforesaid, he was negligent in causing the deceased’s death.

14.	The state concedes that the accused was negligent in the manner he assaulted the deceased therefore accepts the accused’s plea of guilty to culpable homicide.

The state further tendered a post mortem report in relation to the deceased.  It was

marked Exhibit 2.  It gives the cause of death as blunt chest and abdominal trauma.

The accused person is accordingly found not guilty of the charge of murder and is accordingly convicted of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He is a first offender, he pleaded guilty and did not waste the court’s time, he has waited for justice for 1 year.

The accused’s conduct is not acceptable, as characterizing it, is a breach of peace and an indication towards creating chaos.  Touting is a chaotic situation, were these touts sometimes believe they are a law unto themselves.  These courts should register their displeasure in such conduct through appropriate sentences.  A message should be sent out there, loud and clear that these courts frown at the loss of life in any unlawful circumstances.  The accused person is aged 26, he has spent a year in pre-trial incarceration and he pleaded guilty, weighing such mitigatory features against aggravation, this court is of the view that the following sentence will meet the justice of this case.

The accused is sentenced to 7 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Gundu, Dube & Pamacheche, accused’s legal practitioners