Aaron Nyarugwe v Dharwizi Transport (Private) Limited

### Preamble
1
HCMSCR 1060-25
HMA 30-25
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THE STATE

Versus

SIMBARASHE TAPERA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J with Assessors Mr E. Magate and Mr O. Mazonde

MASVINGO 6 October 2025

Criminal trial

B. E. Mathose, for the State

T. Bhunu, for the accused

DUBE-BANDA J:

[1] The accused is appearing before this court charged with the crime of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“Criminal Law Code”). It being alleged that on 22 December 2024, and at Village Murambi, Chief Nhema, Zaka, he unlawfully caused the death of Edwin Tapera (“deceased”) by stabbing him once on the chest, intending to kill him or realising that his conduct may cause death, and continued to engage in that conduct despite the risk or possibility.

[2] He pleaded not guilty to the crime of murder and offered a plea of guilty to the lesser crime of culpable homicide, which the State accepted. The State tendered into the record of proceedings a statement of agreed facts, which is before the court and marked Annexure “A”. The statement reads as follows:

“Accused is a male aged 23 years and resides at Village 1, Tshovani, Chiredzi. Deceased was Edwin Tapera, a male aged 24 years at the time of his death. Deceased was not related to accused despite sharing the same surname.

On the 22nd day of December 2024 both accused and deceased where at an open market at Mutembwa Business Centre. Deceased left the business centre around 1900 hours. Along the way a group of young men assaulted deceased and his companion Trust Mapedze with switches, fists and open hands.

Coincidentally accused arrived in the company of his girlfriend Marhanele as the group of assailants ran away. Deceased who was mistaken that accused was part of their assailants then confronted accused. Deceased manhandled accused by the collar while holding a stick.

Accused withdrew a knife and stabbed deceased once on the chest and ran away. Deceased collapsed and passed away.

Dr Zimbwa did a post-mortem examination of deceased's body and concluded that death was due to haemorrhagic shock and stab wound. The post-mortem no. 006653 will be produced as an exhibit.

Accused admits causing the death of deceased but will submit that he acted negligently and will plead guilty to culpable homicide. The state and counsel for accused agree to the following particulars demonstrating negligence

That he stabbed deceased on the chest, At that time an attack by deceased was indeed imminent. However the means accused used to avert the attack were not reasonable in all the circumstances.

That he realized that death may result from his conduct and negligently failed to guard against that possibility.

WHEREFORE, the accused prays that the court returns a verdict of not guilty of murder but guilty of culpable homicide as defined in Section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

[3] The State produced a post-mortem report compiled by Dr Zimbwa, who concluded that the cause of death was haemorrhagic shock and a stab wound. The postmortem report is before the court as Exhibit 1.

[4] The totality of the facts and the evidence adduced in this trial shows that the injuries sustained by the deceased were caused by the accused. The post-mortem report shows that the injuries inflicted by the accused caused the death of the deceased.

[5] The facts of this matter are that the deceased was mistaken that accused was part of the people who assaulted him and his companions, and he then confronted the accused. The deceased manhandled the accused by the collar while holding a stick. The accused produced a knife and stabbed the deceased once on the chest. At the time the accused stabbed the deceased, an attack on him was imminent. However, the means he used to avert the attack were not reasonable in the circumstances. In stabbing the deceased in the manner he did, a reasonable man placed in the same circumstances as the accused would have foreseen the possibility of death and would have guarded against it. The conduct of the accused shows that he fell below the reasonable person standard. The accused ought, as a reasonable man, to have foreseen the death of the deceased and guarded against it. The accused was negligent, and it was his negligence that led to the death of the deceased. Based on these facts and the evidence of this case, the court is satisfied that the State’s concession was properly taken.

[6] In the result: the accused is found not guilty of murder and found guilty of the lesser crime of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Sentence

[7] The accused stands before this court convicted of the crime of culpable homicide as defined in s 49 of the Criminal Law Code.  In determining an appropriate sentence, this court must consider the applicable sentencing principles and juxtapose the principles with the circumstances of the case. A consideration of the well-known triad of sentence consisting of the crime, the offender and the interests of society is necessary. See S v Zinn 1969 (2) SA 537 (A). In addition, the court will consider the provisions of the Criminal Procedure (Sentencing Guideline) Regulations, 2023.

[8] In mitigation of sentence, counsel for the accused addressed the court and placed factors which he urged this court to consider in deciding an appropriate sentence in respect of the crime of which the accused has been convicted. The accused’s personal circumstances are as follows: he is a 23-year-old, first offender. He is the third born in a family of five children. He was raised by a single parent, his mother. He is married with a child aged two years. He attended school up to Grade 7. Prior to the commission of this offence, he was employed as a general hand by his nephew. By way of compensation, the accused and his family were charged with twenty-five head of cattle, payment of an amount equivalent to five head of cattle to the deceased’s family. In addition, the court was informed that while in prison awaiting trial, the accused attended what is called a young offenders’ education facility for the purposes of rehabilitation.

[9] In aggravation of sentence, Mr Mathose, counsel for the State, submitted that the accused stands convicted of a serious offence of culpable homicide arising from violent conduct. He used a knife and directed the attack on the chest, a delicate and vulnerable part of the human body. Counsel emphasised that the deceased lost his life at the young age of 24. Counsel further placed on record the Victim Impact Statement obtained from the deceased’s father.

[10] In determining an appropriate sentence, the court considers all that has been submitted on the accused’s behalf and on behalf of the State. It is important to state that the deceased was the aggressor. He thought the accused was one of their assailants and then confronted him. He manhandled the accused by the collar while holding a stick. The accused suddenly produced a knife and stabbed the deceased once on the chest. The fact is that the accused was not part of the group that harassed the deceased and his companions. The accused just found himself in a controversy he had nothing to do with; these factors reduce his moral blameworthiness.

[11] It is important to emphasise that the accused has been convicted of a serious offence. A life was ended. It is incumbent on this court to emphasise the sanctity of human life. Society frowns upon a person who, by his violent conduct, causes the death of another human being. The courts must send a loud and clear message that causing the death, albeit negligently, of a fellow human being will not be tolerated. The accused used a lethal weapon, with excessive force on the chest, a vulnerable part of the body. The post-mortem report shows that, indeed, excessive force was used in stabbing the deceased. The force used was severe and excessive that the deceased collapsed and died on the spot. The accused, though a young first offender, jumped into crime from the deep end, and he must contend with the consequences. This was negligence of the highest degree. In addition, the Victim Impact Statement shows devastating results caused by the death of the deceased, to his children and family. In the circumstances, a sentence of direct imprisonment is warranted and will meet the justice of this case.

[11] In the result, the accused is sentenced to 5 years imprisonment, of which 1 year imprisonment is suspended for 5 years on condition the accused does not, within that period, commit an offence of which an assault or physical violence on the person of another is an element and for which, upon conviction, he is sentenced to a term of imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Bhunu and Associates, accused’s legal practitioners