THE State V Viola Mazise AND Smart Mambiri

### Preamble
1
HB 269/20
HC (CRB) 87/20
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THE STATE

Versus

VIOLA MAZISE

And

SMART MAMBIRI

HIGH COURT OF ZIMBABWE

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

GWERU 21 AND 22 SEPTEMBER 2020

Criminal Trial

M Ndlovu, for the state

Ms A Mugari, for the 1st accused

Ms C Dube, for the 2nd accused

MABHIKWA J:	The two accused were charged with the crime of murder.  They pleaded not guilty to murder but guilty of culpable homicide.  It is alleged that the deceased who was husband to the 1st accused and father to the 2nd accused came home drunk.  The statement of agreed facts filed by all 3 counsel reveals that the deceased picked up a quarrel with his wife the 1st accused who apparently had reported an earlier assault to the police.  During the quarrel, the 1st accused left the couple’s bedroom and went to sleep with her daughter.  The accused followed there and started assaulting the 1st accused.  The 2nd accused was called and he joined on the side of his mother.  The deceased was ultimately tripped and pined onto the ground.  A hoe handle was called for.  The deceased was then struck by both accused using the hoe handle described in Exhibit 3.  That is to say, the relative diameters of the hoe handle were not measured.  It was however a total of three (3) pieces measuring 48 cm – 20cm and 17cm each with a combined total of 85cm.  It weighed 1.250kg.  The hoe handle is not one that can be described as big and it is not shown what part was used.

Both the state, the accused and their counsel have accepted that although the accused were defending themselves, they exceeded the bounds of self defence in the circumstances.  However, they all agree that it cannot be said that the accused intended to kill the deceased whether in the form of dollus directus or dollus eventualis from the circumstances.  The cause of death was as shown on Post mortem No. 724-723/20 by Doctor S Pesanayi.  The two accused are therefore found not guilty of murder but guilty of culpable homicide as pleaded.

Sentence

The accused are first offenders who pleaded guilty to the lesser charge of culpable homicide.  The 1st accused is a 42 year old mother of 4.  She still has two (2) young children of school going age.

According to the agreed statement of facts filed of record, the deceased was the aggressor.  He was her abusive husband.  According to her in mitigation, she had endured almost 23 years of abuse and battering at the hands of the deceased.  She also complains of the fact that she and one of her young children contacted H.I.V and A.I.D.S as a result of deceased’s infidelity.  The infidelity went to the extent where the deceased would take produce that she would have worked hard for as well as lobola money for her own children to use on or give to girlfriends.  She had reported to the police on about 10 occasions with little help.  She showed the court a crippled left ring finger sustained from one of the beatings.  On the fateful day, and even according to the state, the deceased was the aggressor.    He came home drunk.  His actions bordered on committing another crime.  He had earlier been reported for yet another assault by the 1st accused.  He called her in a bid to stop her from going to the clinic as dictated by the police “Form 234.”  He was defeating the course of justice when the deceased refused and returned to her daughter’s bedroom to sleep, the deceased escalated the violence until 2nd accused was called in.  In short the 1st accused suffered what is now known specially in other jurisdictions as “the battered wife syndrome”.  According to her counsel, she was pushed to the limit and suffered emotional stress even after the death of the deceased.  The death itself and the societal stigma attached to the nature of the death at her hands was punishment on its own.

The court has been urged to consider the murder weapon and the fact that the offence was not pre-meditated.

See (1) State v Tobias Manzwengarufu HH 29-17

(2) State v Samson Masuku HB 153-16

The 2nd accused is a youthful 1st offender who himself played a minor role in the commission of the offence that led to the demise of his father.  He was called in.  He realised that his mother was again under attack.  He went in.  He grabbed the deceased and pinned him to the ground.  Later after the mother had assaulted the deceased, the 2nd accused simply took one of the pieces of the stick and beat the deceased on the knees.  The deceased then went to sleep when the rest went to spend the night at the grandparents’ home.  He must have thought that the father would live.

It is trite that at 20, he was youthful and youthfulness denotes, immaturity, lack of experience, erratic judgement and lack of appreciation of the grave consequences of one’s actions as submitted on his behalf by Ms C Dube.  He also had endured the abuse of the mother for a long period.

However, sight must not be lost of the fact that the deceased lost his life.  The courts will never condone any loss of life whatever the circumstances.  That is why the death of every person is mourned.  The courts will always uphold the sanctity of life and punish harshly those that take it away, even negligently.   The court has been urged by all counsel to consider a sentence involving community service as befitting.  We believe that the concession is proper.  The accused person’s personal circumstances, the circumstances under which the offence was committed, the interests of society will all be blended into a delicate balance to constitute the interests of justice.

The court will temper justice with mercy by imposing a sentence based on restorative justice in the hope that the accused persons will, after this sentence follow a path of good virtue and pick up the pieces of their lives.

Accordingly, the accused are sentenced as follows:

Each 48 months imprisonment of which 30 months imprisonment is suspended for 5 years on condition the accused person does not during this period commit any offence involving violence for which if convicted the accused person will be sentenced to a term of imprisonment without the option of a fine.  The remaining 18 months imprisonment is suspended on condition each accused person completes 600 hours of community service at Maboke Secondary School and Maboke Primary School respectively on the following conditions:

The community service starts on 28 September 2020 and must be completed within 3 months.  The community service must be performed between 0800 hours to 1300 hours and 1400 hours to 1600 hours each Monday to Friday which is not a public holiday to the satisfaction of the person in charge or his or her delegation (who will also supervise) at the said institution who may on good cause grant the accused leave of absence on a particular day or days during certain hours.  Any such leave of absence shall not count as part of community service to be completed.

National Prosecuting Authority, state’s legal practitioners

Gundu, Dube and Pamacheche, 1st accused’s legal practitioners

Chitere Chidawanyika & Associates, 2nd accused’s legal practitioners