THE State V Vimbai Mashiri

### Preamble
1
HB 88-19
HC (CRB) 2/19
XREF MBIZO CR 38/05/16
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THE STATE

versus

VIMBAI MASHIRI

HIGH COURT OF ZIMBABWE

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

GWERU CIRCUIT 23 MAY 2019

Criminal Trial

M Ndlovu for the state

D Chitere for the accused

MOYO J:	The accused person faces a charge of murder it being alleged that on the 9th of May 2016 and at house number 692/5 Mbizo, Kwekwe, the accused person unlawfully caused the death of Thelma Mashiri by striking her with an electric cable many times all over the body.  The accused person pleaded not guilty to murder but tendered a limited plea to culpable homicide.  The state counsel accepted that limited plea and the parties drew a statement of agreed facts that was tendered and marked Exhibit 1.  It reads as follows:

1.	VimbaiMashiri (hereinafter called the accused) was 31 years at the time of the commission of the alleged offence.  She resides at house number 692/5 Mbizo, Kwekwe in the Midlands Province.

2.	Thelma Mashiri (hereinafter referred to as the deceased) aged 14 years at the time she met her death.

3.	The deceased was accused’s daughter, the accused is the biological mother of the deceased.

4.	The deceased dropped out of school in 2015 when she was in form one and started running away from home, frequenting beer halls and sleeping around with different men.

5.	Every time the deceased ran away, the accused would seek assistance from the police and go out in search of the deceased, bring her back home and encourage her to go back to school.

6.	In May 2016, the deceased took advantage of the absence of the accused person who had gone to South Africa to order goods for her flea market and fled from home.

7.	On her return from South Africa, the accused and her boyfriend FaraiMusimhi went out searching for the deceased who had absconded from home for about two weeks.

8.	On 08th of May 2016 at about 1900 hours the accused and FaraiMusimhi located the deceased at ‘W’ Section, Amaveni, Kwekwe where she was staying with a man who she claimed was her husband.

9.	The accused and FaraiMusimhi took the deceased home on that particular day.  After FaraiMusimhi had left the accused, out of parental anger, assaulted the deceased all over the body with an electrical cable.

10.	The following morning the deceased succumbed, to injuries sustained from the assault and died.

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

12.	The deceased remains were ferried to United Bulawayo Hospitals.  On the 10th of May 2016 Dr. Ivan Betancourt examined the remains of the deceased and concluded that the cause of death was:

i.	Nuerogenic shock

ii.	Multiple trauma all over the body due to assault.

13.  	The accused accepts the evidence of state witnesses and contents of the post mortem report.  The accused denies having requisite intention to kill in the form of dolusdirectusand doluseventualis.   Rather, the accused acknowledges that through her conduct aforesaid, she was negligent in causing the death of the deceased.

14.	The state concedes that the accused person was negligent in the manner she assaulted the deceased, therefore accepts the accused’s plea of culpable homicide.

The post mortem report was tendered and marked Exhibit 2 it gives the case of death as;

1.	neurogenic shock

2.	multiple trauma all over the body due to assault

The electrical cable that was allegedly used in the commission of the offence was tendered and marked Exhibit 3.

On the facts and evidence before this court, the accused person is accordingly found not guilty and is acquitted on the charge of murder.  She is nevertheless found guilty of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  She is a first offender, a widow, and a mother of 3 minors.  She is undergoing teacher training.  She pleaded guilty.  She exceeded the bounds of chastising her daughter.

Parents are encouraged to be mindful of violent behaviour towards delinquent children.  Perhaps it would have assisted booking the child into some institution for girls for character moulding.  Perhaps it would have worked to try and take the girl for counseling rather than to exercise violence in the circumstances.  It is proper yes, to discipline children even as the bible warns us not to spare the rod and spoil the child, but using an electric cable was excessive chastisement in the circumstances.  From the nature of the injuries, the assault must have been protracted and indiscriminate. Life is sacred and these courts shall not hold same likely.  However, the personal circumstances of the accused person, and the circumstances of the commission of the offence are such that a custodial sentence will not be in the interests of justice.

The accused person is accordingly sentenced to 5 years imprisonment wholly suspended for 5 years on condition she is not within that period convicted of an offence involving violence, whereupon conviction.  She shall be sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Chitere, Chidawanyika and Partners, accused’s legal practitioners