THE State V Mnindwa Sibelo

### Preamble
1
HB 85-19
HC (CRB) 43/19
MANOTI CR 19/06/17
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THE STATE

versus

MNINDWA SIBELO

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Ms C. J Baye and Mr A. B Mpofu

GWERU CIRCUIT 27 MAY 2019

Criminal Trial

N Chikuni for the state

L Makande for the accused

MOYO J:	The accused person faces a charge of murder.   It being alleged that on the 5th of June 2017 he assaulted the deceased Dubabantu Sibelo by stabbing him on the forehead with an okapi knife resulting in the deceased later dying on 17 June 2017 from the injuries sustained in the assault.  The accused pleaded not guilty to the charge of murder but tendered a limited plea to a charge of culpable homicide.  The state counsel accepted the limited plea and the parties drew a statement of agreed facts which was tendered and marked Exhibit 1.  It reads as follows;

1.	MnindwaSibelo (hereinafter referred to as the accused) was aged 22 years at the time of commission of the alleged offence.  He resided at Sian’onzi Village, Chief Mkoka, Gokwe South in the Midlands Province.

2.	DubabantuSibelo (hereinafter referred to as the deceased) was aged 25 years at the time he met his death.  The deceased was accused’s cousin.

3.	On the 5th day of June 2017 at about 1500 hours accused and deceased were at Siakanjeke Business Centre, where they were having a beer drink.

4.	The deceased began questioning the accused person as to why he was contracting Shona tribe people to construct his shop instead of Tonga tribe builders.

5.	The deceased picked an argument with the accused and one LuveveSibelo.  He was accusing the two of engaging Shona builders in construction of accused’s shop as opposed to hiring Tonga builders.

6.	At about 1900 hours the deceased and accused person left the business centre going to their homesteads.  They were walking together.

7.	After walking about one hundred and fifty metres from the business centre, the argument between accused and deceased degenerated into a fight.

8.	The deceased was using a log to hit the accused on the head and body several times.  Accused was using his hands to block the blows.

9.	The accused person then withdrew an okapi knife from his trouser pocket and stabbed the deceased on the forehead.

10.	The accused called PanisaniNcube and informed him to escort the deceased to his homestead.  PanisaniNcube then ferried deceased to his homestead with the assistance of ZondiweSibelo and other relatives.

11.	The deceased was later taken to St Lukes Hospital where he was admitted and later on discharged.

12.	The matter was reported to the police and accused was arrested.

13.	On the 17th of June 2017, deceased succumbed to the injuries sustained from the assault and died at his home.

14.	On the 19th of June 2017 the deceased’s remains were ferried to United Bulawayo Hospitals for a post mortem.  Doctor S Pesanai concluded that the cause of death was:

-	subduralhaematoma

-	skull fracture

-	stab wound

-	assault

15.	The accused accepts the evidence of State witnesses and contents of the post mortem report.  The accused denies having requisite intention to kill in the form of dolusdirectus or doluseventualis.  Rather, the accused acknowledges that, through his conduct aforesaid he was negligent in causing the death of the deceased.

16.	The state concedes to the fact that the accused was negligent in the manner he assaulted the deceased and therefore accepts the accused’s plea of culpable homicide.

The post mortem report was also tendered and marked Exhibit 3.  It gives the cause of death as:

Subdural haematoma

Skull fracture

Stab wound

Assault

The knife that was allegedly used in the commission of the offence was also tendered and marked Exhibit 2.  From the evidence tendered before this court, the accused person is accordingly found not guilty and is acquitted on the murder charge but he is convicted of the lesser charge of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He is a first offender.  He is a family man and the sole bread winner. He paid 8 herd of cattle to deceased’s family.

Deceased was the aggressor.  There seems to have been some degree of medical negligence as well when considering a comment in the post mortem report.  Life is scared, these courts frown at the loss of life through violence.  However, these courts have to balance the circumstances of each case so that the interests of justice are met.  The accused person has weighty mitigation in his favour.  He is accordingly sentenced to 5 years imprisonment wholly suspended for 5 years on condition he 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

Masawi and Partners, accused’s legal practitioners