The State v Descent Mzilawempi

### Preamble
1
HCC 61/24
HCCR 448/24
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THE STATE

Versus

DESCENT MZILAWEMPI

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 5 July 2024

Assessors	1. Mr Kamanga

2. Dr Mashavave

Criminal Trial

Mr. N. A Sibesha, for the State

Mr. I. Murambasvina, for the accused

MUZOFA J: The accused pleaded not guilty to a charge of murder and tendered a plea of guilty to the lesser charge of culpable homicide. The State and the defence agreed as follows:

The accused and the deceased one Lameck Muzavazi resided at Village 8 Muzvezve Chief Neuso, Sanyati. They were not related but were known to each other.

On the 12th of July 2021 at Muzvezve Shopping Centre the accused was drinking beer whiling time with his friends. The deceased too was there. One Tafadzwa Zvinavashe passed near where these friends were drinking talking to someone on the phone. Tafadzwa insulted the person he was talking to on the phone. For some unknown reasons, the deceased concluded that the insults were directed at him.

The deceased confronted Tafadzwa a 17-year-old boy and assaulted him. The accused intervened to restrain the deceased. A fist and booted feet fight immediately broke out. They were restrained. They parted ways. The accused proceeded to his homestead.

Instead of proceeding to his homestead, the deceased followed the accused to settle their unfinished scores. The accused who had already arrived at his homestead and seated on a stool saw the deceased approaching him. The accused pulled the stool he was sitting on and struck the deceased once on the head.

The deceased collapsed. He was taken to Sanyati Hospital where he was pronounced dead on arrival.

The State produced the following exhibits by consent:

The post mortem report, the cause of death was recorded as severe head trauma.

The accused’s confirmed warned and cautioned statement. His response to the caution was;

“I have understood the caution and I admit the charge. The reason being that the now deceased was assaulting the child at the shops and I reprimanded him against that, he then started assaulting me and he followed me to my residence and I struck him with a stool because he was now entering my residence”.

The stool whose weight was 1.5kgs. The stool was broken one side on impact.

We inquired if the charge and the statement of agreed facts were fully explained to the accused. Mr. Murambasvina confirmed that the accused’s plea is unequivocal, he fully understood the both the charge and the statement of agreed facts.

We considered that the deceased followed the accused to his homestead there were high probabilities that he intended to resume the fight with the accused, both the accused and that both were drunk. The deceased’s presence at accused’s homestead and particularly the fact that he went straight to the accused presented an imminent attack on the accused. The accused was entitled to take some pre-emptive action. He used the stool that he was sitting on which was the nearest weapon. He lacked the requisite intention to commit murder but he was negligent in his attempt to wade off an imminent attack.

However, since the deceased was not armed the means used in the circumstances were excessive. The concession was therefore properly made.

The accused is found not guilty of murder. He is found guilty of culpable homicide.

Sentence

In assessing the appropriate sentence, the court will consider the accused’s circumstances, the offence and the interest of justice.

The accused is a 38-year-old first offender with family responsibilities. He is married. He pleaded guilty which is a sign of contrition. His family contributed towards the funeral wake of the deceased. They purchased the coffin and food. This is not to say such contributions can replace life, but such conduct goes a long way to demonstrate that the accused is contrite and took action to express it. We will also consider as mitigatory that at the initial stage of the conflict, the accused played a responsible role to protect the young man who had been attacked. The accused accepted restraint and walked away from violence. The deceased unfortunately did not accept that, he still wanted to confront the accused.

Life was lost, in very unfortunate circumstances. It cannot be replaced. The deceased’s uncle Shingai Wadhawu addressed the court and expressed his deep anguish. We were shocked that the deceased’s family demanded 24 beasts, that were paid before the burial.

Mr Wadhawu further advised the court that the deceased and the accused were distant relatives. He was pained by both the death and the excessive compensation demanded. Indeed, we found the compensation on the high side. Even if courts consider compensation, it is not part of a criminal sentence but it serves to show that the accused has extended a leaf of apology and reconciliation to the aggrieved family. In this case due to the number of beasts the court will reduce the sentence, obviously the accused has  to some extent been punished by delivering those beasts.

Both counsel referred us to relevant cases particularly one blow post imbibing beer cases. In State v Matindi HMT 4/21 one blow in a fit of rage, the court imposed a sentence of 3 years of which 1 ½   years were suspended. In S v Matinyenya HH204/20 the Court after  considering a number of one blow cases after drinking beer concluded that even if the accused is convicted of culpable homicide the sentencing trend is a custodial sentence. The length of the custodial sentence then depends on the circumstances of the case.

An effective sentence in the region of 5 years would have been appropriate in this case. However in view of the 24 beasts already paid, the sentence must be reduced. The Court cannot turn a blind eye to the traditional way of settling disputes particularly where the payment is on the high side.

In the circumstances this court sentences him as follows:

3 years imprisonment of which 2 years is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Effective sentence: 1 year imprisonment.

National Prosecuting Authority, the State’s legal practitioners

Murambasvina & Associates, the accused’s legal practitioners