THE State V Vusumuzi Promise Nkomo

### Preamble
1
HB 79/20
HC (CRB) 24/20
---------


THE STATE

Versus

VUSUMUZI PROMISE NKOMO

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr A. Ndlovu & Mr N. Ndubiwa

HWANGE HIGH COURT 9 MARCH 2020

Criminal Trial

Mrs M. Cheda for the state

L. Mcijo for the accused

MOYO J:	Accused faces a charge of murder it being alleged that on the 7th of July 2019, he assaulted the deceased Mbonisi Nkomo by stabbing him with a hacksaw blade and thereby causing his death.  Accused pleaded not guilty to the charge of murder but offered a limited plea to the charge of culpable homicide.  The state counsel accepted the limited plea and the parties drew a state of agreed facts that was tendered and marked exhibit 1.  It reads as follows:

The accused was aged 26 years at the time of the commission of the offence and he resides at Amos Ncube’s homestead, Tshanke area, Nkayi.

The deceased was aged 23 years at the time he met his death.  He used to reside at Lovemore Nkomo’s homestead, Tshanke area, Nkayi.

On the 7th of July 2019 and at around 1500 hours along a foot path leading to Tshanke Business Centre, the accused and the deceased had an altercation over a woman.  The deceased assaulted the accused with a stick he was carrying three times on the back.

The accused then produced a piece of a hacksaw blade which he used to stab the deceased with on the left side of the neck.

Accused then fled from the scene leaving behind his bicycle.

The deceased bled profusely from the injury and died on the spot.

The accused person pleaded not guilty to murder but pleads guilty to culpable homicide in that he negligently caused the death of the deceased.

The sate counsel tendered the post mortem report which was marked as exhibit 2 and it gives the cause of death as:

Haemorrhagic shock

Perforated sub clavicle vessels

Stab wound

Assault

From the evidence presented to this court, the accused person is accordingly found not guilty as the charge of murder but is convicted on the lesser charge of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He is a first offender, he pleaded guilty to the appropriate charge.  The 2 parties had an altercation over a woman with deceased starting to beat up accused thrice.  Accused then reacted by stabbing the deceased with a hacksaw blade.  The accused went to school as far as grade 7, he is the sole breadwinner in his family.  However, these courts frown at violence in all forms. Accused overreacted even if deceased started beating him up first.  Of course, it is difficult to sit in court and determine how a man faced with an attack could have reacted as a lot of other factors that the court cannot imagine come into play.  A life was lost and life being sacred its loss cannot be taken lightly by these courts.  Ordinarily the accused person could have faced up to 10 years imprisonment for such an offence but this court is alive to the fact that it is the deceased who started the assault on the accused causing him to overreact.  The degree of violence in the circumstances calls for a custodial sentence.  That accused was under attack by the deceased is the only reason that presents weighty mitigating on in favour of for the accused person, causing this court to depart from the usual sentences given for such an offence.  It is for these reasons that the accused person will be sentenced to 5 years imprisonment with 3 years imprisonment suspended for 5 years on condition the accused person does not within that period commit 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

Liberty Mcijo & Associates, accused’s legal practitioners