The State v Fanyana Gibson Mpala

### Preamble
1
HB 59/20
HC (CRB) 35/20
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THE STATE

Versus

FANYANA GIBSON MPALA

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr A. Ndlovu & Mr N. NDUBIWA

HWANGE 9 MARCH 2020

Criminal Trial

Mrs M. Cheda for the state

Miss C. Manyeza for the accused

MOYO J:	The accused faces a charge of murder, it being alleged that on the 21st of July 2019, he assaulted deceased Samon Mpala with clenched fists causing his death.  The accused pleaded not guilty to the charge of murder and tendered a limited plea to culpable homicide.  The state accepted this limited plea and the parties drew a statement of agreed facts that was tendered and marked exhibit 1.  It reads as follows:

The accused was aged 69 years at the time of the commission of the offence and he resides at his own homestead Janjanja Village, Mabhikwa area, Lupane.

The deceased was aged 77 years at the time he met his death.  He used to reside at his own homestead Janjanja Village, Mbhikwa area, Lupane.

The deceased and accused were brothers.

On the 21st of July 2019 the accused and the deceased spent the afternoon as well as the evening at Matshakayile Business Centre where they were drinking beer in the company of Thokozani Ncube and Sifelani Mpala.

On their way home the accused and deceased had a misunderstanding over the issue to do with spirit mediums and traditional beliefs.

The deceased struck the accused on the face with a fist.  The accused retaliated by striking the deceased several times on the head and face with clenched fists causing deceased to fall down.

The deceased sustained injuries from which he died the following day.

The accused person pleads not guilty to murder but pleads guilty to culpable homicide in that he negligently caused the death of the deceased.

The post mortem report was tendered and marked exhibit 2 which give the cause of death as intraacranal Haemorrhage, skull fracture and assault.  From the evidence tendered before this court the accused is found not guilty of the charge of murder and is convicted on the lesser charge of culpable homicide.

Sentence

Accused is convicted of culpable homicide. He is a first offender, he pleaded guilty.  He is aged 70 years old.  The deceased was the aggressor.  A life was lost in the most unfortunate circumstances.  However this court takes into account the weighty mitigation in accused’s favour, that of his age.  He is in the afternoon of his life and he may not live to see the end of his prison term if given one.  It is for this reason mainly that the accused person will be kept out of prison and given a wholly suspended sentence.

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

National Prosecuting Authority, state’s legal practitioners

Ndove & Partners, accused’s legal practitioners