The State v Mthobile Moyo

### Preamble
1
HB 275/20
HC (CRB) 107/19
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THE STATE

Versus

MTHOBILE MOYO

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr T.E Ndlovu and Mr J.L.M Zulu

HWANGE 5 NOVEMBER 2019

Criminal Trial

Mrs M Cheda, for the state

Miss C Manyeza, for the accused

MABHIKWA J:	The accused in this matter was charged with the crime of murder as defined in section 47 of the Criminal (Codification and Reform) Act, Chapter 9:23.  It was alleged that on 15 May 2019 at Maphito Grazing Lands, in Tsholotsho, the accused unlawfully struck John Black Ndlovu once on the head with a log intending to kill him or realising that there is a real risk or possibility that his conduct may cause the death of John Black Ndlovu but nonetheless continued to engage in that conduct despite the risk or possibility of death.

The accused pleaded not guilty to the charge of murder but guilty to the lesser charge of culpable homicide.  The state accepted the limited plea.  The state and the defence filed with the court a statement of agreed facts herein marked Exhibit 1.  The accused confirmed that the statement of agreed facts contained the true facts of what transpired on the fateful day.  The statement reads as follows;

“The state and the defence are agreed that the following issues are common cause being that:

1.	The accused was aged 23 years at the time this offence was committed and he resides at Mude Moyo’s homestead, Godzo line, Jahe area, Tsholotsho.

2.	The deceased was aged 75 years at the time he met his death and he used to reside at his own homestead, Godzo line, Jahe area, Tsholotsho.

3.	The accused and deceased were not related.

4.	On the 15th of May 2019, at around 0800 hours the deceased sent his grandson one Bradly Ncube together with Fanuel Sibanda to go and collect a pile of firewood at the Maputo grazing lands, Tsholotsho.  Bradley Ncube found a small pile of firewood which they collected and went back home.

5.	The deceased indicated that the pile of firewood was small suggesting that the firewood had been stolen.  This prompted the deceased together with Bradley to go back to the grazing area to ascertain what had happened to part of the firewood.

6.	When they got there, deceased identified a pile of firewood by the side of the road which had been shifted from where he had left it as his.  They loaded the firewood onto their cart.

7.	The accused arrived at the scene and asked why they were stealing his firewood.  The deceased explained that the firewood was his and had been stolen from the other side of the grazing land.

8.	The deceased and Bradley continued loading the firewood onto the cart.  This annoyed the accused and he started offloading the same firewood from the cart throwing it to the ground.

9.	The deceased and accused then had a heated argument.  Accused picked a log and struck deceased once on the left side of the head using the log.

10.	The deceased fell and hit his head on the ground.  The deceased sustained injuries on the head from which he bled.

11.	Bradley went back home to seek help whilst the accused dragged the deceased to a nearby shade and offered first aid.

12.	Bradley returned to the scene with one Amon Ngwenya but the accused then fled the scene.

13.	Deceased was ferried to Tsholotsho hospital and subsequently transferred to Mpilo hospital where he died on the 18th of May 2019.

14.	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 state also tendered the post mortem report No. 136-93-2019 of the deceased’s remains.  It was marked Exhibit 2, and compiled by Doctor I Jekenya.  It gave the cause of death as;

(a)	Brain Haemorrhages

(b)	Severe Head injury

(c)	Assault

The 3rd exhibit produced by the state was the murder weapon in the form of a log.  The log measured 120 cm in length.  It weighed 1.4 kg and had the thickest part measuring 7 cm in circumference.

With the facts contained in the statement of agreed facts and the other evidence before us, we are satisfied that a murder charge could not be sustained.  We are also convinced that the state properly and judiciously accepted the limited plea to the lesser crime of culpable homicide.

We accordingly find the accused not guilty of murder.  We find him guilty of culpable homicide.

Sentence

In assessing sentence, the court will consider all that was submitted in accused’s favour.

The accused pleaded guilty to the offence and did not waste the court’s time.  He showed remorse not only in court but at the time the complainant fell down and lost consciousness after being struck by the log.  He took him to a shade and attempted to render first aid although clearly it appears he may not have known the correct way of doing it.  The accused is a first offender who is single but has a 9 month old illegitimate child to feed.  The court has been told that the accused had a rather sad and rough upbringing.  He lost both parents and thus remained orphaned at the age of 14.  He then was brought up by a poor grandmother who could afford to push his education only up to Grade 7 level.  His conduct was a combination of immaturity, semi illiteracy and rough upbringing.

The court will however not in anyway condone the accused’s conduct in the circumstances.  Whilst it is claimed that he may have felt provoked, it is our finding that “provoked” would be an arguable word to use in the circumstances.  In any event, at his age, he cannot honestly claim to have been provoked by the 75 year old man, old enough to be his grandfather.  It is the court’s finding that the old man could not, according to the facts have been stealing the accused’s firewood.  Rather, it could be the accused’s claim to the firewood that is more questionable.

With no respect for old age whatsoever, especially for an old man who is not a stranger but a neighbor in his area, he picked a log, rough as it is and struck the old man on the head.  The head itself is generally a delicate part of the body, not to mention that of the aged who are usually senile anyway.

The pathologist’s post mortem report reveals that severe force had been used and that the cause of death was;

a)	Brain Haemorrhages

b)	Severe head injuries

c)	Assault

The sanctity of life must be protected.  That cannot be over emphasized.  On behalf of society, the court must show its indignation at such conduct which needlessly leads to loss of life especially in petty quarrels such as over firewood.  The court has been advised that the accused has been in continuous custody for a period of nine (9) months.

Accordingly, the accused is sentenced to 8 years imprisonment, two (2) of which are suspended on condition he is not, within that period, convicted of an offence of which violence on the person of another is an element, whereupon conviction he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Ndove and Associates, accused’s legal practitioners