The State v Levison Luphahla

### Preamble
1
HB 57/21 ‘A’
HC (CRB) 07/21
---------


`THE STATE

Versus

LEVISON LUPHAHLA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J. Ndubiwa & Mr J. L. M. Zulu

HWANGE 19 MARCH 2021

Criminal Trial

Mrs M. Cheda for the state

Ms L. Mthombeni for the accused

MAKONESE J:	On the 31st of May 2020 and at around 20:30 hours the accused and the deceased were drinking home brewed beer at accused’s homestead.  A misunderstanding arose between the two over who was older than the other.  The argument degenerated into a fight.  Deceased threw a wooden stool at the accused hitting him on the head and face.  Deceased ran away.  Accused sustained some bruises on the forehead and chest.  The accused gave chase and caught up with the deceased. Accused assaulted the deceased several times all over the body with a log.  Deceased sustained fatal injuries and later died.

The accused is facing one count of murder in contravention of s47 (1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  The accused denies the charge of murder.  He tenders a plea of guilty with respect to the lessor charge of culpable homicide.  The facts surrounding the commission of the offence are largely common cause and not in dispute.  The state accepts the limited plea and tendered a statement of agreed facts which now forms part of the record.

The state produced a post mortem report compiled by Dr Gregori at United Bulawayo Hospitals on 4 June 2020 following an examination of the remains of the deceased.  The cause of death is listed as:

Subarachnoid haemorrhage

Head trauma

On marks of violence the pathologist observed that the deceased suffered multiple injuries on both the parietal regions, forehead, mouth and cheek.  He further observed excoriations located on the left shoulder and hip.  It is clear that the deceased suffered serious injuries to the head and upper part of his body.  The wooden log used in the assault was produced as an exhibit.  The log is 69cm in length, its circumference is 14cm and it weighs 0.45kg.

From the evidence placed before the court we are indeed satisfied that the accused negligently caused the death of the victim.  This was a tragic and unfortunate death which could have been prevented.  The accused is found not guilty on the charge of murder.  The accused is found guilty of the lessor charge of culpable homicide.

Sentence

In assessing an appropriate sentence the court takes into account all the mitigating features of the case as set out by the accused’s defence counsel.  The accused has shown a certain measure of remorse and contrition.  He pleaded guilty to the lessor charge of culpable homicide.  He is a first offender who has had his first brush with the law.  The accused is a family man with 3 minor children.  The youngest child is 11 months old.  Any custodial sentence that may be imposed will inflict to extreme hardship upon the accused’s wife and dependents. The court takes into account the fact that the deceased was the initial aggressor.  Deceased spoiled for a fight and in the end attacked the accused twice with a wooden stool on the head.   Accused sustained some bruises on the head and mouth.  The accused’s response to this provocation and assault was however unwarranted.  The accused had been referred to as “umfana” by the deceased (meaning a younger person or boy).  Accused felt humiliated and provoked.  As if this was not enough the accused was subjected to a physical attack by the deceased.  There is evidence that both deceased and accused had been consuming home-made traditional brew before the incident. Both deceased and accused must have been somewhat drunk. This is evidenced by the fact that a simple argument about who between the two about who was older led to a misunderstanding and a physical altercation.  The aggravating feature of this case is that inspite of the deceased running away from the scene, accused pursued him and when he caught up with him, attacked with a log indiscriminately all over the body. The post mortem report reflects that the deceased died as a result of:

Subarachnoid haemorrhage

Head trauma

The accused must have used excessive force against the deceased.  The accused acted negligently in causing the loss of life.

The court finds it necessary to impose a custodial sentence.  This was a brutal attack.  There was loss of human life.  The accused used extreme and excessive force. There is a need to ensure that these courts protect the sanctity of human life.  A non-custodial sentence would a slap on accused’s wrist and would in effect trivialise the offence.

In the circumstances, we find the following to be an appropriate sentence:

“Accused is sentenced to 4 years imprisonment of which 2 years is suspended for 5 years on condition accused is not within that period convicted of an offence involving violence and of which upon conviction he is sentenced to a term of imprisonment without the option of a fine.

Effective: 3 years imprisonment”

National Prosecuting Authority, state’s legal practitioners

Dube, Nkala & Company accused’s legal practitioners