The State vs Bernard Dube

### Preamble
1
HB 110/19
HC (CRB) 59/19
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THE STATE

Versus

BERNARD DUBE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J. Sobantu & MrT. E. Ndlovu

HWANGE CIRCUIT COURT 1 JULY 2019

Criminal Trial

Ms M. Munsaka for the state

V.J. Mpofu for accused

MAKONESE J:	The accused appears in this court on a charge of murder.  It is alleged by the state that on 28th September 2018 at Bernard Dube’s homestead, Village 3 Lukala Siganda, Inyathi, the accused assaulted Mthandazo Sibanda with booted feet and switches all over the body thereby causing his death.  The accused denied the charge of murder and tendered a plea of guilty with respect to the lessor charge of culpable homicide.    The state conceded that the plea tendered was appropriate in the circumstances. The state proceeded by way of a statement of agreed facts.  Mr V. J. Mpofu appearing for the accused confirmed that the essential elements of the offence had been explained to the accused.

The brief facts of the matter are these. The accused was aged 40 years at the time of the commission of the offence. He resides at Siganda in Inyathi.  The deceased was aged 49 years at the time of his demise.  The accused and the deceased were related in that the deceased was accused’s uncle.  Sometime around August 2018 accused took up employment in neighbouring Botswana.  Deceased developed a love relationship with one Sister Nkala, accused’s wife.  On 28th September 2018 around 20:40 hours deceased arrived at accused’s homestead and occupied one of the huts.  Deceased invited Sister Nkala to join him in the hut in pursuit of their romantic affair.  The deceased and Sister Nkala were inside the hut when the accused arrived at the homestead.He was armed with an adze which he intended to use to defend himself in the event that it became necessary for him to do so.  Whilst the deceased and Sister Nkala were in the hut they observed a human figure walking past the hut.  Sister Nkala sensing danger, got out of the hut, with the accused behind.  The accused and the deceased engaged in a physical confrontation outside the bedroom hut.  Accused managed to disarm the deceased of the adze. Accused fell to the ground.  Deceased tried to arm himself with a log but he bumped into a perimeter fence made of barbed wire.  Accused pounced on the deceased who had fallen down.  He struck him with booted feet and clenched fists all over the body.  Accused further assaulted the deceased on the face and chest region.  Accused then used switches to assault deceased.  The deceased sustained serious injuries arising from the assault and was subsequently ferried to Inyathi District Hospital where he died upon admission.

A post mortem report tendered by Ms Munsaka appearing for the state, reflects that the cause of death was:

Asphyxia

Neck construction

Strangulation

The state also tendered a home -made adze as  an exhibit.

The instrument is a dangerous weapon with a hammer like shape on one side with a blade on the one side.

From the evidence placed before the court we are satisfied that the accused caused the death of the deceased by inflicting serious injuries upon him.  He strangled him, blocking the wind pipe and constricting his neck.  The accused negligently caused the death of the deceased.

Accused is accordingly acquitted on the charge of murder.  Accused is howeverconvicted of culpable homicide.

Sentence

The accused has been convicted of a serious offence.  The accused caused the death of the victim by strangulation.  He inflicted serious injury upon the deceased.  His conduct was reckless and negligent.  This court noted that the accused had prior to this assault been subjected to extreme provocation.  He had observed to his utter disgust that his uncle was having an affair with his wife.  This angered him.  The deceased was aggressive inspite of the fact that he had invaded the accused’s home and taken his wife.

It is often said a man’s home is his castle and any man whose wife is taken away in the manner described in this case would lose self-control.  In assessing an appropriate sentence, this court shall take into account the mitigating features of the case as outlined by accused’s defendant counsel.  Accused is a first offender.  He has pleaded guilty and shown a certain measure of remorse.  He has dependants who are likely to suffer as a result of the sentence this court shall impose.  This court, however, must not lose sight of the fact that the victim’s family are equally affected by the permanent loss of support as consequence of accused’s conduct.  This court takes the view, that the degree of moral blameworthiness on the part of the accused is not high.  These courts do, however, have the duty to protect the sanctity of human life. Courts should and will always discourage the use of violence a means of resolution of disputes.  Cases of this nature are on the increase and the courts must not condone the motion of self- help.  We are satisfied that inspite of the circumstances surrounding the commission of the offence, any sentence other than a custodial sentence would trivialise this offence.  A custodial sentence is called for.  The sentence this court’s shall impose must reflect that the courts do not sanction, let alone condone the loss of human life.

The accused is accordingly sentenced as follows:

“4 years imprisonment of which 1 year is suspended for 5 years on condition the accused does not within that period commit an offence involving violence for which he is convicted and sentenced without the option of a fine.

Effective sentence:  3 years.”

National Prosecuting Authority, state’s legal practitioners

V.J. Mpofu& Associates, accused’s legal practitioners