THE State V Sijabuliso Mpofu

### Preamble
1
HB 113/19
HC (CRB) 115/14
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THE STATE

Versus

SIJABULISO MPOFU

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr T. E. Ndlovu and  Mr J. Sobantu

HWANGE 11 JULY 2019

B. Tshabalala for the state

U. Nare for the accused

MAKONESE J:	The accused was 19 years at the time of this offence.  The deceased was 46 years old.  The accused appears in this court on a charge of murder.  It being alleged that on the 27th September 2010 the accused wrongfully and intentionally caused the death of Silindile Ncube by striking him with a log on the head and chest thereby causing his death.  The accused pleaded not guilty on the charge of murder.  He tendered a plea of guilty with respect to the lesser offence of culpable homicide.  The state accepted the limited plea.

A statement of agreed facts was tendered into the record.  The facts of this matter may be conveniently summarized as follows.   The accused and deceased were neighbours.  On the date 26 September 2010 and at around 2100 hours the deceased and his wife Junior Ngwenya had a dispute at their homestead.  Deceased’s wife ran away and the deceased gave chase.  The deceased had reason to believe that his wife had sought refuge at the accused’s homestead. Seething with anger, deceased subsequently went to confront the accused.  Accused’s father one Robert Mpofu intervened and left when peace seemed to prevail.  The following morning, deceased accosted the accused who was on his way to visit a relative.  Deceased emerged from a bush carrying a knife.  The accused picked up a stick and struck the deceased on the head.  The deceased put the knife away and punched the accused with fists.  Accused’s father restrained the two.  Deceased then   picked a log and threw it at the accused but missed.  The accused picked the same log and threw it at the deceased hitting him on the chest.  The deceased staggered and tried to pick up another log but failed.  The accused picked another log and struck the deceased at the back of the head.  Deceased collapsed and died from injuries sustained in the attack.  A post mortem report compiled by Dr I  Jekenya , Mpilo Central Hospital on the 30 September 2010 reveals that the cause of death was:

unascertained due to decomposition

possible head injury

From the evidence placed before the court, we are indeed satisfied that the state properly conceded to the lessor charge of culpable homicide.  There is  no evidence to sustain a charge of murder.

In the result, the accused is acquitted on the charge of murder and is found guilty of culpable homicide.

Sentence

The accused has been convicted of a serious offence.  The loss of life can never be condoned and the accused should have exercised self control in the face of provocation.  There are weighty mitigating factors in this matter.  The accused was aged 19 years at the time of the commission of the offence.  He was a youthful offender and the sentence imposed must have regard to his youthfulness at the relevant time.  There has been an inordinate delay in the finalization of this case of over 8 years.  The accused was in remand prison for a cumulative period of 13 months prior to this trial.  The court observes however that part of the reason for the delay is that accused could not be located.  He is therefore to blame to some degree for the resultant delay in this case.  Section 69 of the Constitution of Zimbabwe (Ammend.No 20),   2013 provides for the  right to a fair and speedy trial before an independent and impartial court.  The accused is a first offender who has pleaded guilty to the lessor charge of culpable homicide.  The court takes into account the assistance the accused renderd in tendering a guilty plea.

It is this court’s view that no meaningful purpose would be served by sending the accused to prison at this stage.  The justice of the case demands that accused be sentenced to a rehabilitative sentence.  The sentence this court shall impose must induce the accused to reflect on his behavior.

In the result the following sentence is deemed appropriate:

“12 months imprisonment, wholly suspended on condition accused performs 420 hours community service at ZRP Njube, Bulawayo on such terms to be determined by the probation officer.”

National Prosecuting Authority, state’s legal practitioners

Dube, Nkala & Company accused’s legal practitioners