The State v Aleck Mapfundematsva and Jacob Kaponda and Ephraim Mavunganidze

### Preamble
1
HCC 84/24
HCCR 883/24
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THE STATE

versus

ALECK MAPFUNDEMATSVA

And

JACOB KAPONDA

And

EPHRAIM MAVUNGANIDZE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 8 November 2024

Assessors	1. Mr Kamanga

2. Mrs Mateva

Criminal Trial Sentencing Judgment

K. Teveraishe, for the State

U. Saizi, for the 1st & 2nd accused

B. T. Ncube, for the 3rd accused

MUZOFA J

Introduction

The accused persons who all reside in Hurungwe under Chief Nematombo were initially jointly charged with two other accomplices who absconded. The State opted to separate the trials and proceed with the three accused before the court.

The three accused appeared before us facing a charge of murder. They assaulted the deceased one Langton Chifamba between the 29th and 30 July 2021. They suspected that he had stolen from the 1st accused’s shop.

The evidence established that the 1st accused and the accomplices at large effected a citizen’s arrest on the deceased and took him from church where he was attending a service during the night. They took  him to Nyangwizhi Business Centre where they assaulted him. The 2nd and 3rd accused also joined in the assault. The deceased was assaulted the better part of the night until the following morning.

The Plea

The accused pleaded not guilty to the charge.

The 1st accused indicated that, his shop was broken into and several clothing items were stolen. After they apprehended the deceased, he was assaulted by his accomplices at large. He did not assault the deceased at all.

The 2nd accused also denied the offence and pleaded guilty to assault. He said he assaulted the deceased four times underneath his feet and left. The State did not accept the plea to the lesser charge that is why the matter proceeded to trial.

The 3rd accused also denied the offence. He said he  was at the scene, he tried to restrain the 1st accused and his accomplices to no avail. They were too violent.

The evidence

The evidence placed before us established that the 1st accused in the company of accomplices who absconded and not before the court suspected that the deceased had stolen from the 1st accused’s shop.

One Ernest was the source of such information. Meanwhile the deceased was at a church service. The 1st accused and his accomplices descended on him and dragged him out of church. This was in full  view of deceased’s church mates including his aunt, his father’s sister.

They took him to the shopping centre where they tied his hands and started assaulting him using sticks, booted feet and half bricks. They even poured water over him. This is when the 2nd and 3rd accused persons joined in. The deceased’s apprehension was a crowd puller, it seems everyone was so convinced that the deceased had stolen from the 1st accused’s shop. They were the police, having investigated, tried him and sentenced him to unbridled, relentless assaults.

That the deceased was assaulted was not disputed. The accused shifted the blame on the accomplices that absconded.

Despite that the court accepted the State witnesses’ evidence as credible. Plaxedes Chaguta was at church with the deceased he identified the 1st accused as one of the people who dragged the deceased out of church. She later followed to Nyangwizhu Shopping Centre. When she arrived there, she saw the deceased lying near a shop. She saw the 1st accused and one Davy assaulting the deceased. 1st accused used a metal rod. They assaulted the deceased throughout the night. The 3rd accused also joined in and fetched water that was poured over the deceased. Ernest brought an assegai taunting that he wanted to chop the deceased’s fingers.

Zvichaipa Chifamba was deceased’s mother. She went to the shopping centre and saw the deceased lying with hands tied, his whole body swollen. The 1st accused assaulted the deceased with switches and hands. The 2nd accused hit him under the feet and 3rd accused fetched water that was poured on deceased.

Tinotenda Mutenda an employee at a shop close to the 1st accused’s shop also gave evidence. He knew about the theft at 1st accused’s shop. They picked a spoor at the scene of theft. When deceased was apprehended, they tried to fit his footprint. It seems it did not match. So when the deceased was assaulted, he questioned why they assaulted him but he was harangued off. He confirmed that the deceased was assaulted while lying on the floor, he kept rolling. The 1st accused used different sizes of logs. The 2nd and 3rd accused also participated.

Despite their denial, after considering the evidence placed before us, we concluded that the 1st accused’s defence was palpably false. We convicted him of culpable homicide. We accepted that the 2nd and 3rd accused joined in the assault out of sheer mob mentality and assaulted the deceased. They did this with no intention to identify with the intention to cause death. We therefore convicted them of assault in contravention of s89 (1) of the Criminal Code.

The Law

A conviction of culpable homicide attracts a maximum penalty of life imprisonment or any definite period of imprisonment or a fine up to or exceeding level fourteen or both. The Court’s discretion is guided by the degree of negligence and other salient circumstances of the offence including the mitigating and aggravating circumstances.

In terms of the sentencing Guidelines where the degree of negligence is high, with any of the aggravating factors such as where the accused’s conduct resulted in multiple deaths and there was cruel or inhuman treatment of the deceased, the presumptive sentence is 5 years. On the other end, where there are mitigatory factors that include contributory negligence by the deceased, where compensation was paid and the accused rendered some assistance the presumptive sentence is 3 years. The presumptive sentences are more of a guide on a possible minimum where the Court finds such circumstances. The Court is at large to impose a sentence more than the presumptive sentence where the circumstances of the case demand so.

In respect of assault s89 (3) of the Criminal Law Codification enjoins the court in sentencing an accused to consider a number of factors including the complainant’s status, weapon used and other injuries if any and circumstances surrounding the assault. Each case depends on its circumstances.

The Submissions

Mitigation

In terms of s12 of the sentencing Guidelines the court must inquire into and investigate into various issues set out therein. Although the wording of the Statutory Instrument is couched as such, practically it is the mitigation and aggravation that is elicited. It is therefore the duty of the legal representatives where the accused are legally represented to elicit such information. The process is elaborate but it provides the court with details to fully appreciate the true circumstances surrounding the commission of the offence. Where the accused is not legally represented it is the Court that must canvass the relevant issues from the accused.

It is therefore desirable that the accused address the court first unless the legal representative is well briefed. This is because there are salient facts that maybe drawn from him or her about his life, social background, ability to make restitution, the probability to commit similar offences and other personal circumstances. In offences that involve violence like murder this is where the Court may understand the underlying cause of the offence.

The 1st accused took the witness stand. He was asked about his family and compensation only. More could have been done for instance, why he went to the traditional healer after the deceased was apprehended, this establishes his belief system and his social background. What his business was all about and what it meant to him. Why he assaulted the deceased or let the absconding accomplices assault the deceased instead of involving the police.

The 1st accused’s evidence was that he is a first offender, married with family responsibilities. He did not assist during the funeral. He said he heard they took goods from the shop. He was arrogant, he said what is “done is done”. Yes nothing can bring back life but a show of remorse does soothe the hearts of the surviving relatives. He offered to pay a beast to the deceased’s family. It was clear he was not remorseful, this offer was tendered after his legal practitioner posed a direct question on compensation.

After his address Mr Saizi submitted that the degree of negligence was ordinary. It was submitted that the accused left the scene for some time to consult a traditional healer. During that time the accomplices who absconded continued to assault the deceased in his absence. We were referred to the case of S v Ruzani HH 588/19 and urged to impose a sentence of 3 years imprisonment. The case does not assist the court at all. The facts are distinguishable from the facts before this court. In the Ruzani case the accused and the deceased were drinking beer together. They had a quarrel, the accused then slapped and pushed the deceased against a wall. This was a drunken brawl.

The 2nd accused also gave evidence in mitigation. He is a first offender. He was 28 years old married with 3 young children. He does odd jobs from confectionary making to buying and selling goods for a living. He was in custody for 14 days. He said he committed the offence because he was angry. He was a victim of theft sometime back. He said he assisted the deceased after the assault by providing his place to warm the deceased who was wet and cold.

The 3rd accused also gave evidence. He was a first offender aged 58 years old, married with family responsibilities. He has 10 children, the bigger number still minors. He is a farmer. He was in custody for one week. He was not remorseful. He did not assist the deceased even after the assault.

Aggravation

The State led evidence from Zvichaipa the deceased’s mother for the victim impact statement.  Sadly, his wife could not attend she had no bus fare. In such cases there a number of victims, the wife and children are probably the primary victims. The parents and siblings also occupy another level, they are also victims.

As she stood in the witness stand Zvichaipa looked sad and emotionally traumatised. She told the Court that the deceased is survived by a wife and 3 children. The wife was pregnant at the time of death. The child was born after burial. The wife has since returned to her family. None of the accused offered to assist them during the funeral. The deceased assisted his parents with farming and supported them financially. It was traumatic to see her son being assaulted to death. The scene still haunts her. She occasionally has flashes of the assault and agony that the deceased went through.

Mrs Teveraishe submitted that the degree of negligence is high. The deceased was subjected to inhuman and degrading treatment. The deceased who was only a suspect was assaulted in a public place by a group of people who were drunk. They also assaulted him for the whole night taking time to rest and resume assaulting the deceased.

The Sentence

The Sentencing Guidelines ushered in a new approach to sentencing where Courts are enjoined to receive the victim impact statement. In this case we had to listen to the deceased’s mother’s traumatic experience when she watched her son, the deceased being assaulted. She said she still has flash backs of the assaults. It means she was affected psychologically. It is very difficult to heal from such trauma.

One of the objects of the Sentencing Guidelines is to achieve transformative justice. Transformative justice recognizes that oppression is at the root of all forms of harm, abuse and assault. As a practice, it aims to address and confront those oppressions on all levels and treat this concept as an integral part to accountability and healing.

If healing is part of transformative justice, then the justice delivery system must seriously consider provision of support systems for victims to assist them to heal. The victims of crime have been neglected for long. They are only relevant as witnesses and dismissed. What happens to them thereafter is not considered.

As we sat listening to the mother expressing her deep anguish it was obvious that she was crying out for help to live through this traumatic experience. We can only recommend to the relevant authorities and stakeholders to seriously consider provision of appropriate interventions to support victims of crimes. South Africa for instance has a Victim Charter. which sets out the rights of victims of crime. It includes provision of counselling services and support systems. So far in Zimbabwe there are limited support systems for survivors of domestic violence. More can be done to support victims of other offences

The 1st accused has been convicted of culpable homicide an offence which involves negligence. We agree with the State. The degree of negligence is high. It bordered on recklessness. The State’s evidence highlighted significant factors that outweigh any mitigating elements presented by the defence.  The reason behind this brutal assault was the accused’s suspicion that he had stolen. Goods can be recovered but life cannot be recovered once it is lost.

The post mortem report showed the extent of the brutality. We pause to comment on post mortem reports. There are two forms used to record the cause of death. There is a one page or sheet which allows the Doctor to give a brief report of the cause of death. Then there is a long version where the Doctor examines the condition of all the body parts. The short form is useful to state the cause of death. The longer version provides details of all the injuries sustained by the deceased whether they were fatal or not. Besides corroborating what the evidence it helps the Court to fully appreciate the effect of the assaults on the deceased. We recommend that the State engages the relevant authorities for an appropriate recommendation.

Before us was the one-page post mortem report. It recorded the brutality evidenced by the injuries as;

“cervical spinal fracture, several bruises on the neck, marks consistent with whip lashes all over the body.”

The deceased was assaulted indiscriminately by a group of drunk people in a public place. Many people gathered to watch this shameless conduct. The 1st accused was the brains behind the deceased’s forced apprehension from church. The deceased’s hands were tied, he lay on the ground vulnerable and defenceless. Surely assaulting a person who cannot assist himself or escape is merciless. He could not use his hands to cover any part of his body. There was evidence that one of the assailants actually targeted his private parts.

That the deceased was assaulted by a group of people, in a public place, with tied hands, water poured over him shows the extent of brutality and senseless attack on the deceased who was only a suspect. Why the 1st accused chose not to involve the police but to involve some hooligans and traditional healers confounds us.

What is mitigatory is that he is a first offender with family responsibilities. These factors however pale compared to the aggravating factors in this case. The circumstances surrounding the assault reveal senseless brutality, the 1st accused did not offer any compensation let alone an apology to the deceased’s family, no assistance was given during the funeral. This offence was committed in aggravating circumstances.

In S v Chinembiri HH 291/24 where the accused in the company of some accomplices assaulted the deceased for a prolonged time with sticks and booted feet the Court found the degree of negligence high. The accused pleaded guilty. It sentenced the accused to 13 years imprisonment with 3 suspended for 5 years. In S v Kadenhe HH 130/24 the accused pleaded guilty to culpable homicide. He assaulted a relative while drunk. He was sentenced to 10 years imprisonment with 3 years conditionally suspended. Case law shows that where the offence is committed in aggravating circumstances a non-custodial sentence or a sentence below 5 years is inconceivable.

Life is sacrosanct it must be treated as such. Although the accused is being punished for being negligent, society does not know about that. What society knows is that the accused caused the death of the deceased. The line of cases show that a custodial sentence is inescapable in such cases. The accused ought to learn that violence does not resolve problems and that there is need to respect the sanctity of human life.

People are resorting to violence leading to unnecessary loss of lives. There is need for courts to send a clear message to society that human life matters and that it needs to be respected by imposing stiffer penalties. Indeed, justice must be tempered with mercy which is a hallmark of democratic civilization. On the other hand, unduly lenient sentences may bring disrepute and lack of confidence in the justice delivery system. Sentences must therefore deter likeminded people yet instil confidence in the justice delivery system, A custodial sentence with part of it suspended would meet the justice of the case in respect of the 1st accused.

The 2nd and 3rd accused have been convicted of assault. Section 89 (3) of the Criminal Law Code enjoins the court in sentencing an accused to consider a number of factors including the complainant’s status, weapon used and other injuries if any and circumstances surrounding the assault.

The 2nd accused struck the deceased four times under his feet and left. He went back to monitor his doughnuts. So after the assailants were done with the deceased in the morning, the deceased’s relatives asked for help to warm the deceased who was drenched in water and blood visibly shivering from cold. He happily provided them with a safe space to warm themselves until the deceased was taken to hospital. It maybe some help but other than what was requested we did not hear any positive efforts to take the badly injured deceased to hospital.

The 2nd accused’s moral blameworthiness is on the lower side. He joined in the assault to simply punish the deceased.

There was no evidence of any injuries underneath the deceased feet. His act could therefore be of negligible value to the injuries observed by the Doctor.

The only aggravating factor is that he associated himself in a violent attack against the deceased. The deceased was already helpless lying down with hands tied. He could neither escape nor shield any part of his body. The sentence must reflect the court’s disgust in such conduct. This was not a simple assault of an able well-disposed person. The assault was perpetrated on an already compromised person.

The 3rd accused, despite his theatrics before the court his moral blameworthiness is on the high side. He wanted the court to believe that he feigned support for the assailants yet in truth he did not. The court concerns itself with what one does instead of what is in their heart. His actions displayed a total association with the assailants. He fetched water that was poured on the deceased. This was July which means it was winter time, but for his conduct the deceased was obviously exposed to cold.

He urged the assailants on and even suggested that the deceased’s parents must be assaulted too since they ate from the forbidden tree, the proceeds of crime. Surely his sense of justice is warped. Few parents encourage their children to live off thievery. Let alone there was no evidence that the deceased had stolen. He too did not assist the deceased’s family.

Generally an effective imprisonment is suitable where there are serious injuries or disfigurement. See S v Ncube HB86/16. In this case a custodial sentence with part suspended conditionally and part suspended on condition of performance of community service would meet the justice of the case. Since their blameworthiness is different this must be reflected in the number of hours that each accused will perform community service.

Accordingly, the accused are sentence as follows:

Accused 1

10 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition within that period the accused does not commit any offence involving violence on the person of another involving the negligent killing of another of which upon conviction he is sentenced to imprisonment without the option of a fine.

Effective 8 years

Accused 2

12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition within that period the accused does not commit any offence involving violence on the person of another of which upon conviction he is sentenced to imprisonment without the option of a fine.

The remaining 6 months imprisonment is wholly suspended on condition the accused performs 210 hours of community service work at Nyangwizhu Secondary School. Community service shall commence on 13 November 2024 and must be completed within 6 weeks. It must be performed every Monday to Friday between 8am to 1pm. which is not a public holiday to the satisfaction of the person in charge of the institution, who may on good cause grant the accused permission to be absent on a particular day or days during certain hours but such leave of absence shall not count as part of community service completed.

Accused 3

18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition within that period the accused does not commit any offence involving violence on the person of another of which upon conviction he is sentenced to imprisonment without the option of a fine.

The remaining 12 months imprisonment is wholly suspended on condition the accused performs 420 hours of community service work at Nyadara Primary School. Community service shall commence on 13 November 2024 and must be completed within 12 weeks. It must be performed every Monday to Friday between 8am to 1pm which is not a public holiday to the satisfaction of the person in charge of the institution, who may on good cause grant the accused permission to be absent on a particular day or days during certain hours but such leave of absence shall not count as part of community service completed.

National Prosecuting Authority, the State’s legal practitioners

Saizi Law Chambers, the 1st accused’s legal practitioners