THE State V Lameck ZHOU

### Preamble
1
HB 57-19
HC (CRB) 3/19
XREF MBER CR 57/3/18
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THE STATE

versus

LAMECK ZHOU

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr W. T Matemba and Mrs L Sithole

GWERU CIRCUIT 28 AND 29 JANUARY 2019

Criminal Trial

M Ndlovu for the state

Ms V Kwande for the accused

MABHIKWA J:	The accused is facing a charge of murder in contravention of section 47 (1) of the Criminal Code.

The accused has pleaded guilty to the lessor charge of culpable homicide, which the state has accepted.

The common cause facts as laid out in a statement of agreed facts are that the accused was 37 at the time of the incident whilst the deceased was 46.  Both were drinking beer at Chaza Business Centre in Mberengwa on 29 March 2018 at around 2140 hours.

The accused then had a misunderstanding with the bar lady, who wanted to close the bar.  The deceased, who was a relative of the bar lady intervened by getting hold of the accused’s arm and dragged him out of the bar.

Whilst outside, the deceased picked up stones and began chasing the accused whilst throwing stones at him.  The accused then fled into an incomplete building near the bar.  As he was exiting the building from the back of the building, he fell on his back whilst the deceased was closing in on him.  The accused picked up a stone and struck the deceased and then stood up and fled.  When the deceased’s younger brother and nephew followed into the building, there was no one.  They found the deceased however lying face down some 6 metres outside the back exit door of the said building.  Accused had disappeared at the time.

From the outlined evidence of witnesses, which the accused accepts, no one really saw what transpired at the time the deceased was struck and so it is difficult to argue with the accused on that point.

The accused handed himself the following day after learning of the deceased’s death.  Dr Sanganai Pesanayi, who examined the remains of the deceased, opinioned that the course of death was:

a) 	 Acute cardiac failure,

b)	Cardiac inhibition chest and

c)	Blunt force trauma.

The court finds that the concession by the state to accept a plea of guilty to culpable homicide was properly and judiciously made.  The court finds that the accused cannot be said to have formed an intention to kill the deceased or that he foresaw the possibility of deceased’s death but was nonetheless reckless as to that eventuality.

Accordingly, the accused is found not guilty of murder but guilty of culpable homicide.

Sentence

In assessing sentence, the court considers all that has been said in favour of the accused in mitigation by his counsel.

The accused is a first offender, who has shown relent not only by pleading guilty to the charge of culpable homicide and thereby serving the state and the court considerable time and expense.  He in fact appears to have been contrite and remorseful right from the beginning soon after learning of the deceased’s death.  On the morning after the incident, he handed himself to the police.  He also showed his relent and contrition by paying four beasts to the deceased’s family.

The accused has not been potrayed as or shown to be a rogue element.  Even his argument or talk with the bar lady appears to be one that would usually or reasonably be expected from a drinking patron.  He and his friend had bought beer, the bar lady wanted to close the bar when they still had beer in their bottles.  The impression one gets is that the bar lady was probably hurrying them up as she was unlikely to allow them to go away with the bottles.

The deceased had done well by dragging the accused outside.  But whilst outside, the deceased appears to have been the aggressor throughout.  He was in fact 9 years the accused’s senior and should have behaved more maturely.

Having taken the accused outside, he started pelting him with stones and chasing after him.  The accused tried to hide in an incomplete building but he followed.  No witness saw what happened there exactly, leading to the death.

There was clearly no pre-planning on the part of the accused.  There is no evidence that he used a deadly weapon.  In fact the findings of Dr S Pesanai in post mortem number 340-339-2018 suggests that the deceased died as a result of a single blow.

The court will consider also as submitted by counsel for the accused that he has a young family to look after.  He spent three months in pre-trial incarceration.

However, the court has always emphasized the sanctity of life.  In this case a life was lost, in my view needlessly, although of course the deceased was the aggressor.  Taking the law into one’s own hands has never been condoned by these courts.

The court will however temper its sentence in this case with mercy.  This is because of the contrition and human nature shown by the accused after sobering up the following morning as well as the aggressive role by the deceased leading to his death.

The accused is sentenced to 36 months imprisonment (3 years imprisonment) of which 18 months is wholly suspended for 5 years on condition he does not within that period, commit any offence involving violent for which he is sentenced to imprisonment without the option of a fine.

Effective sentence – 18 months (1 ½) years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Kwande Legal Practitioners, accused’s legal practitioners