THE State V Goodson Zondo

### Preamble
1
HB 144/20
HC (CRB) 70/20
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THE STATE

Versus

GOODSON ZONDO

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr P. Damba & Mr J. Sobantu

BULAWAYO 30 JUNE & 1 JULY 2020

Criminal Trial

B. Gundani for the state

Z. Ncube for the accused

MAKONESE J:	The accused was aged 38 years at the time of the commission of the offence.  The deceased who was employed as a maid by the accused was aged 50 years at the time of her demise.  The accused appears in this court facing a charge of murder in contravention section 47 (1) (a) of the Criminal Law Codification and Reform Act (Chapter 9:23).  It being alleged that on 11th February 2018 and at house number 284 Emganwini West, Bulawayo, the accused attacked the deceased with a plank several times all over her body intending to cause her death or realising that there was a real possibility that his conduct may cause her death, but continued in such conduct.  The accused denies the charge and tenders a limited plea of guilty with respect to the lessor offence of culpable homicide.  The state accepts the limited plea.

The brief facts as outlined in the statement of agreed facts which has been tendered as an exhibitare as follows.  The deceased was employed by the accused as a house maid.  On the 3rd of February 2018 the accused and deceased developed a sexual relationship after the deceased assured the accused that she was “clean” and was not afflicted with any infections.  On the 11th February 2018 the accused and the deceased had sexual intercourse. They did not use protection.  After the sexual act, accused discovered to his utter horror that deceased was in fact using anti retroviral drugs (ARVs), after the tablets had fallen out of the deceased’s handbag.  In a fit of anger, the accused took the ARV tablets and confronted the deceased for an explanation.  The accused was not amused by the fact that the deceased had lied about her HIV status.  A heated argument ensued.  The deceased heightened the accused’s anger when she told the accused that he “liked things”, meaning that he liked to have sexual intercourse.  The argument degenerated into a fight.  The accused armed himself with a plank and assaulted the deceased with it several times and indiscriminately all over the body.Deceased fell head long to the ground bleeding profusely.  The deceased was ferried to Mpilo Central Hospital for treatment.  She later died on the 12th February 2018.

A post mortem report tendered into the record indicates that the cause of death was:

Severe skeleton– muscular damages

Multiple injuries

Callous murder

On marks of violence, the post mortem reveals that the deceased had suffered extensive bruises, welts and some wounds.  The wounds were concentrated on the scalp, face, chest wall, especially the left side, the abdomen, neck, buttocks, thighs both legs, upper arm and forearms.  There was evidence of intensive and extensive haemorrhage under the traumatised skin.  There were compound fractures on the right forearm and near the waist with two transcend wounds 2cm long and 3cm.

The state tendered a confirmed warned and cautioned statement signed by the accused at Zimbabwe Republic Police Nkulumane, Bulawayo, on the 13 February 2018.  The statement was confirmed by a magistrate on the 16 February 2018.  In this statement accused admits assaulting the deceased following an altercation.  The statement confirms that the source of the misunderstanding arose out of the deceased’s failure to disclose her HIV status and lying to the accused that she was “clean” before their sexual encounter.

From these facts, we are satisfied that accused acted recklessly in the manner he assaulted the deceased.  It is clear, however that the accused did not possess the requisite mens rea to cause the death of his victim.  The accused acted negligently.  For these reasons, the accused is found not guilty of murder, but we find him guilty on the lessor charge of culpable homicide.

Sentence

The accused has been convicted of a serious offence.  In assessing an appropriate sentence the court should take into account all the mitigating features of the case as outlined by accused’s legal counsel.  The accused is aged 40 years.  He was 38 years at the time of the commission of the offence.  The accused tendered a plea of guilty with respect to the lessor charge of culpable homicide.  The accused served the court’s time by admitting his guilt.  The accused co-operated with the police and did not seek to distance himself from the offence.  The accused has paid a total of 18 head of cattle as compensation to the relatives of the deceased.  In addition the accused assisted with all thefuneral expenses relating to the burial of the deceased.  We take into account that as a result of this offence the accused’s marriage collapsed.  This conviction will haunt the accused who has already been stigmatized by society as a murderer.  Inspite of all these weighty mitigating features of the case, the court noted with dismay that accused recklessly in the manner he assaulted the deceased.  The court accepts that the accused was provoked by the deceased who not only lied about her HIV status but hid the condoms before the sexual encounter.  The deceased’s abrasive response when accused confronted her about the ARVs she was taking contributed to the accused’s anger.  The court does accept that accused acted in the heat of the moment and under extreme provocation.  The accused lostself- control and acted irrationally.

This court notes that the accused’s own conduct led to this unfortunate loss of life.  The deceased was employed as a maid by the accused.  The accused allowed a moment of weakness to result in a sexual encounter with the maid who was much older than himself.  This court does not condone or encourage relationships between married men and their maids.  Any self- respectingman ought to understand that by having a sexual relationship with a maid, they undermine their marriage.  The court has been told that the accused’s wife was employed as a nurse at Filabusi at the relevant time.  By engaging in a sexual relationship with the deceased, the accused was exposing his wife to the risk of infection.  The accused ought to have acted responsibly and when the deceased hid the condoms the accused at least, ought to have exercised care.  We do not accept that accused was seduced by the deceased.  The accused had control over hisown conduct and should have refrained from engaging in a risky sexual enterprise.

The moral blameworthiness of the accused is high if one has regard to the results of the post mortem report.  The deceased sustained serious injuries all over the body.  The injuries were concentrated on the scalp, face, chest walls, abdomen, back and buttocks.  There was evidence of compound fractures on the right forearm.  It is crucial to note that there was no skull fracture, suggesting that the accused did not direct his blows to the head.

I have examined the case law referred to by Mr Z. Ncube, appearing for the accused.  Most of the cases though relevant, are distinguishable from the present case.  In State v Nyathi HB-80-16, the court imposed a sentence of community service primarily because the accused was a 16 year old juvenile at the time of the commission of the offence.  In State v Makombe HB_110-15 the accused was convicted of culpable homicide.  The court found a sentence of community service appropriate.  In that case the accused and the deceased were cousins.  The accused had a misunderstanding with the deceased.  Accused slapped the deceased who fell down hitting his head on the tarmac.  The court characterised the death as an unfortunate incident.  In State v Mbano HB-114-15, this court convicted the accused of culpable homicide.  The accused was 18 years at the time of the offence.  The accused had been involved in a fist fight with the deceased.  Accused struck the deceased with a knobkerrie once on the head.  The deceased left the scene and went home complaining of dizziness.  The deceased subsequently died as a result of injuries suffered in the assault.  In that case the accused was sentenced to 6 years imprisonment of which 3 years was suspended for 5 years on condition of good behaviour.  The effective sentence was 3 years imprisonment.

We tend to agree with counsel for the state Mr Gundani that a custodial sentence is called for.  In all the cases cited above, the average range of effective custodial sentences is 3 years imprisonment.  It is not however, proper in our view, to impose a lengthy prison sentence.  The court has to take into proper consideration, the conduct of the deceased prior to the commission of the offence.  The court must balance the interests of the due administration of justice and the personal and peculiar interests of the accused.  The sentence this court imposes must not be unduly harsh, but must meet the ends of justice.

In the result, and accordingly the following is deemed as an appropriate sentence;

“Accused is sentenced to 5 years imprisonment of which 2 years is suspended for 5 years on condition accused is not within that period convicted and sentenced to an offence involving violence and for which he is sentenced to a term of imprisonment without the option of a fine.

Effective sentence 3 years.”

National Prosecuting Authority, state’s legal practitioners

Ncube & Partners, accused’s legal practitioners