THE State V Tamirirashe MOYO

### Preamble
1
HB 276/20
HC (CRB) 90/20
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THE STATE

Versus

TAMIRIRASHE MOYO

HIGH COURT OF ZIMBABWE

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

GWERU 23 SEPTEMBER 2020

Criminal Trial

Ms N Chikuni, for the state

Ms G Nyabawa, for the accused

MABHIKWA J:	The accused is 23 years old.  He was 21 at the time of commission of the offence.  The deceased was 32.

The accused was charged with one count of murder as defined in section 47 (1 of the Criminal Code, Chapter 9:23.  He denied the murder charge and pleaded guilty to the lesser charge of culpable homicide.

The state and the defence filed an agreed statement of facts.  The deceased was the accused’s uncle.  The accused quarreled with his own mother allegedly over a piece of soap which he (accused had taken).  The accused started assaulting his mother and sister.  A neighbour, one Kudakwashe Moyo was summoned to assist.  Whilst Kudakwashe was talking to the accused about the assault, the uncle (deceased) arrived.  He reprimanded the accused for assaulting his own mother and sister.  The two began to exchange harsh words.  The deceased moved towards the accused.  The accused took a half brick and struck the deceased on the abdomen area and ran away.  The deceased approached, asking the accused why he had assaulted him.  The accused turned back and again picked up the same brick he had used earlier.  He struck the deceased on the abdomen for the second time.  The deceased sustained injuries and was ferried to his homestead by Kudakwashe.  Two days later on 27 February 2018, the injuries and pain worsened and the deceased was taken to Matibi Hospital.  He was refered to Masvingo Hospital the same day.  He died enroute to Masvingo Hospital.  The accused was then arrested.

Doctor S Pesanai, who examined the deceased’s remains opinioned that the cause of death was as follows;

(i)	Peritonitis

(ii)	Raptured small bowel

(iii)	Blunt force trauma to the abdomen.

(iv)	Assault

The accused in fact accepts the evidence of the state witness as well as the contents of the post-mortem report by the doctor.  He denies having had the requisite intention, either actual or having realised the reasonable foreseability of the deceased’s death but nonetheless having been negligent regarding the consequences thereafter and persisted in his actions.  He admits however that whilst he did not intend to kill at all, he was negligent and it is such negligence in his conduct that led to the deceased’s death.  The state has conceded that the accused was negligent in the manner he assaulted his uncle and has accepted the accused’s plea of guilt to culpable homicide.  We are satisfied from the circumstances that the concession is proper.

The accused is accordingly found not guilty of murder but guilty of culpable homicide.

Sentence

The accused was only 21 years old at the time of the commission of the offence.  He was indeed youthful, but youthfulness, it must be stated should always be read with the perculiar circumstances of a particular case.  He is a first offender who pleaded guilty to culpable homicide.  For that reason he did not waste the court’s time, the state’s resources and expense.  Unfortunately, that is about all that is in accused’s favour.

The accused on the day in question behaved like a rogue, a bull elephant.   He apparently used to quarrel with his mother and sister over the sister’s boyfriends.  At this day and age, it is not clear why exactly that bothered him to the extent of treating his mother and sister in the manner he did.  It is not even stated that they were staying at his homestead.  Instead, it looks like it was his parents’ homestead.  On the day of the assault, the accused quarreled with his mother over a piece of soap, again the flimsiest of reasons.  He assaulted both the mother and the sister.  One Kudakwashe Moyo was called in.  Just as Kudakwashe was talking to the accused, the deceased arrived.  He was the accused’s uncle.  He reprimanded the accused for assaulting his own mother and sister.  The accused then quarreled with his uncle.  Ultimately, he picked up the same half brick twice using it to assault his uncle in the abdomen area just for being reprimanded.  The half brick weighs about 1.7 kg.

The accused was generally a nuisance on the day and was the aggressor throughout.  He caused the loss of an innocent man and above all a law abiding citizen.  The deceased happened to be his own uncle who had done nothing other than reprimand him for doing exactly the opposite of what was expected of him.  He is instead the person who was expected to look out for and defend his mother.  Ms N. Chikuni was right that it is taboo that he was instead the one assaulting his mother.  The courts will always frown at loss of all life.  People who behave like wild animals deserve to be removed from circulation among humans for some time.

Accordingly, the accused is sentenced as follows;

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

National Prosecuting Authority, state’s legal practitioners

Nyabawa & Partners, accused’s legal practitioners