Aaron Nyarugwe v Dharwizi Transport (Private) Limited

### Preamble
1
HCC 37/25
HCCR 695/25
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THE STATE
versus
L (Juvenile)

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
Chinhoyi, 17 – 19 June 2025

Assessors:   Dr. Mashavave
                    Mr. Kamanga

Criminal Trial

M. M. Chitsiga, for the State
K. J. Magavude, for the Accused

BACHI MZAWAZI J:

Introduction

Before us is a shivering young boy perceptively, from his physical frame, aged between 15 and 17 years of age. The medical estimation report could not conclusively peg the teenager’s age. It estimated his age to be minus or plus 17 years. Shivering, not only from the novelty of the courtroom but because of his scanty apparel which comprises of khaki shorts, a sleeveless shirt and no jersey in the midst of the harshest winter month, June.  He has been brought not from a juvenile detention centre but from an adult inmate holding facility. He is facing one count of murder in contravention of s47(1) of the Criminal Law Code [Chapter 9:23].

Agreed Facts and Allegations

The State and defence counsels have plea bargained for the lesser charge of culpable homicide. From the agreed statement of facts, the accused was returning from collecting his young brother from a nearby village. He then met the deceased, a 14-year-old girl, who was in the company of several other school children coming from school on their way home. The girls started laughing upon seeing the accused approaching and bypassing them going the same direction. The accused was annoyed by the laughter outburst he believed was targeted at him. He moved back and asked the girls why they are laughing at him. The deceased then verbally exchanged words with the accused and a shouting match ensued. This resulted in the accused poking the deceased twice on the head thereby inviting more insults from the girls. He then slapped the deceased on the cheek.  This action automatically invited the deceased’s friend who then joined the deceased in a fist fight with the accused. The accused being outnumbered and overpowered produced an okapi knife and stabbed the deceased once under her right breast. Upon realising the harm, he had done accused panicked, ran and hid in his disused grandmother’s granary. This is where he was eventually fished from by the villagers, apprehended and arrested by the police.

It was learnt from the statement of agreed facts that the accused’s parents separated when he was in the first grade at primary school going into the second. The mother took him and his brother then eleven to stay with an aunt, her sister. She then deserted her family wandering from place to place.  The accused and his brother ended up staying with a paternal uncle but were deprived of further education because of financial constraints.

What the Defence and State counsels agreed to as a statement of facts is exactly what had been reduced into the confirmed warned and cautioned statement indicating that the accused did not prevaricate but was forthwith. From the brief history renditioned above and the manner in which this offence was committed we find that the concession to a lesser charge was well taken.

Verdict

In examining how the unfortunate and tragic incident evolved, it discernibly is indicative of negligent killing other than intentional killing.  There is provocation in that the girls for one reason or the other laughed just as the accused was passing. The accused, ill-conceived or not interpreted it as a mockery giggle directed at him.

In passing, the legal position is that the defence of provocation is a limited defence that can be used to reduce a charge of murder to one of culpable homicide. This is if it is successfully proved that the recipient of the provocation lost self -control resulting in the commission of the offence. The reasonable man, standard test is used to determine whether the degree of provocation was sufficient to cause a reasonable person to lose control and act impulsively in the circumstances. If successful, the defence establishes that an individual cannot be considered criminally responsible for their actions at the time of the offence.  For crimes other than murder, provocation does not operate as a defence but can only be a mitigatory factor. For murder, provocation will at most be a partial defence. This is as codified in section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  See, S v Goliath 1972 (3) SA 1 (A) and S v Nangani 1982 (1) ZLR 150 (S).

Reliance however, for the purpose of analysis with regards to conviction cannot be placed on the provocation issue as it now is a non-issue given the limited plea of culpable homicide tendered. What is of interest nonetheless is that, in the present case there is evidence of an exchange of verbal and physical blows between the accused and the deceased and her companion. The stabbing was as a result of being overpowered which can be narrowly be construed as self-defence. It is the weapon that was used and the amount of force, that is the introduction of an okapi knife in a fist fight that ultimately throws the defence off course.

In that regard we find that, in producing a knife and stabbing the deceased, the accused negligently failed to realize that by so doing his conduct may result or bring about the death of the deceased when a reasonable person in his shoes would have. We find the degree of blameworthiness and that of negligence minimal

Accordingly, the accused is found guilty of culpable homicide as plea bargained.

Sentencing Judgment

Summarised facts and charge

The accused, a teenage male stands accused of culpable homicide in contravention of s49(1)(a) of the Criminal Law Code. The summarised facts are that after being provoked and an ensuing fist fight with the deceased and her friend the accused stabbed the deceased once and fled the scene. The deceased a young female died on the spot. The autopsy report revealed the cause of death as hemopericardium heart laceration stab wound in the chest.

In sentencing the juvenile in conflict with the law, we have taken into account and assessed many factors. The victim impact statement and the aggravating factors juxtaposed with the Sentencing report and mitigation as well as the general sentencing principles and objectives have been brought into play and counter balanced.

Victim Impact Statement

Like every aggrieved parent who loses a dear child the father of the victim was torn apart when he gave his statement in this regard. He had very high hopes for his young girl whom he described as having shown signs of a bright, promising and prosperous future through her educational performance and church activities involvement. He stated that had he been given the number of beasts his family had claimed from the accused’s he would have wanted the accused to serve a short custodial term. Now that he had not been paid, he wanted accused incarcerated for a very long time. He however confirmed the payment of a considerable amount of money the equivalent of three to four beasts as funeral assistance by the accused’s family.

Probation Officer’s Report

As is the norm, in offences where a child is involved as the culprit the probation officer’s report is a prerequisite. The probation officer’s report disclosed the environment under which the accused grew. From the investigations carried out, the accused after the desertion by their parents played the role of both a father and mother to his brother. His struggling up bringing played a major role in what then transpired on the day.  He dropped out of school at a tender age and lived in abject poverty. He had no parental love, guidance and role models, leading him to spend some time in the midst of some artisanal mining communities. This is where he ended up having and moving around with a knife. The probation officer recommended detention into a juvenile home where the child accused person will receive both shelter and training.

The Sentencing Report

The ladies who appeared as guardians for the purpose of this trial of a minor were closer to the accused ‘s young brother than to him. Of note, the accused and his young brother shared only the mother not the father. So, it is the paternal aunt of the young brother who came and acted as his guardian but with minimal knowledge of his background. As a result, an enquiry was made from the minor for the purposes of the sentencing report.  Nothing is materially different from what was laid out in the probation officer’s report. Save to say that the accused apart from his petit stature, in demeanour, behaved like a child just an ordinary boy. No sophistication. No cunningness. No pretence. A lot of innocence. There was no evidence of a hardened criminal or delinquency in the strict sense of the word.

Mitigation

Ms Magavude beseeched the court to take into account the circumstances surrounding the commission of the offence and the personal circumstances of the accused who is a mere teenager. She submitted that the offence was at the spur of the moment therefore the penalty should be corrective and reformatory other than retributive. She prayed for non-custodial sentence or a wholly suspended imprisonment term.

Aggravation

In aggravation, Ms Chitsiga for the State, submitted that in as much as the offence was serious resulting in the death of an equally young and vulnerable person, both the circumstances surrounding the commission of the offence and the accused’s personal ones should be central in arriving at an appropriate sentence, She advocated for a wholly suspended sentence coupled with the placement of the accused into a juvenile detention facility.

Analysis

Our constitution defines every person below the age of 18 years as a child. From that context both the accused and the deceased apparently fall into the bracket of minors, teenagers, adolescents, juveniles and children. It is clear that both the accused and the deceased at the time of the commission of the offence were children. The accused is still a child. The manner in which the seemingly innocent laughter degenerated into a verbal and physical onslaught and then death is reminiscent of how children react to most situations.   Little did the young boy know that by the end of that fateful day his world would turn upside down and be changed forever. In a split second he was transcended from the world of a growing developing child into the world of adult hardened criminals.

Upon sight of the juvenile before us coming from an adult detention facility against the background of how this offence was allegedly committed, we could not help but shudder. In a few seconds, without planning, premeditation a simple encounter and error of judgment transformed this young boy into an adult who was bundled into custody amongst hard core incorrigible criminals. What is even more disturbing from our exposure in this criminal trial court where we are faced with heinous murder offences is the degree of culpability in this offence as compared to those others.

Why this emphasis, it is because from whichever way you look at it a child is a child. It is such in both mental, physical behavioural patterns and characteristics.  Children still manoeuvre and navigate different developmental stages and acclimatisation with the adult world order. A child thinks like a child and acts like a child. Equating the reasoning, calculated reactions, and mature responses or actions of an adult to that of the child is an outright injustice. In this case the accused is a child. He acts like a child even in this court room. The circumstance surrounding this offence signals children behaving like children. Though not condoning any forms of violence nor any forms of homicide and the fact that innocent blood was spilt, what is apparent is, this was a common child misunderstanding that turned deadly.

In the biblical contexts recognition is made between the cognitive capabilities of a child in relation to their actions. 1 Corinthians 13 verse 11 endorsed this view by stating,

“When I was a child, I spoke as a child, I understood as a child, I thought as a child, but when I became a man, I put away childish things.”

This glaring truth cannot simply be ignored or denied in the Criminal justice system and delivery. The court as the neutral arbiter should not rob the retributive mantle but treat each case individually and on its own merits. Moreover, in penology, a balance must be struck between the interests of administration of justice, society and individual liberty. Further,  the four objectives of punishment,deterrence, prevention, rehabilitation and retribution  in view of the triad of factors set out in S v Zinn 1969 (2) SA 537 (A) and reproduced in section 6 of the sentencing guide S.I. 146/23, must be counter balanced.

The Law

None the less, the primary focus or aim in the youth justice system is to prevent recidivism, to reform and to shape the children in conflict with the law into better future citizens. The sentencing guidelines places offenders such as the present accused, a child under a special category of offenders.

S21 (1) of the Sentencing Guidelines, states,

Where the offender is a child the court shall have regard to the following—

(a) that the best interests of the child are the paramount consideration when determining the most appropriate sentence to impose and the court shall strive as best as it can to ensure that the sentence is rehabilitative in nature;

(b) a report prepared by a probation officer is a compulsory part of the pre-sentencing information;

(c) imprisonment as a sentence imposed on a child is to be used only as a last resort and then only for the shortest possible period of time.

In a nut shell the proviso s21 above enjoins courts, sentencing child offenders, to take into account their best interests, consider rehabilitative penalties and consider a custodial term as a last resort. Moreso, this court as an upper guardian of minors as dictated by the Constitution.

In S v Christipher Velly Mashaba (Case number CC29/2021, dated 7 December 2022) the learned judge, Moosa J, sentenced the teenage accused in that matter to correctional supervision pursuant to the accused being convicted on a murder, read with section 51(1) of the Amendment Act.    The court found that substantial and compelling circumstance were, inter alia, to be found in the “extraordinary nature and circumstances of the crime” and “the dynamics of the accused’s extended family, and the events which preceded and culminated in the shooting of the deceased.”

The Constitutional Court of South Africa in S v M(Centre for Child Law Amicus Curiae) 2007 ZACC 18 , 2008(3) SA 23 highlighted that,

“Every child has the right to enjoy special care. Children are vulnerable and require a nurturing and secure family for their development. To this extent, sentencing courts must perform their function in matters concerning the rights of children in a manner which at all times shows due respect for children’s rights and that brings to bear focused and informed attention to the needs of the children at appropriate moments in the sentencing process. The question whether the sentencing courts had proper regard for the children’s best interests when imposing sentence is a serious matter that strikes at the core of the administration of justice. The interests of justice demand that this court, as the ultimate guardian of both the Constitution and children, investigate whether the High Court and the Supreme Court of Appeal have exercised their discretion in line with the requirements of section 28 of the Constitution.

Evaluation and Conclusion

In light of the (above), in this case the seriousness of the offence is the starting point. Young life was lost through the carelessness of the accused of moving around armed with a lethal weapon. Life is valuable and irreplaceable. The loss of life cannot be underplayed. The vacuum created by the loss of the life of the deceased can never be plugged.

However, what distinguishes this case from other cases in the same category is the degree of culpability of the offender. If indeed he had a murderous intent or was a trouble monger he could have started by simply producing the knife and attacked the young girls. He did not. He only thought of the knife when he had been overpowered by the deceased and her friend. It was an automatic defence mechanism.

In addition, sight cannot be lost of the numerous underlying factors that can be attributed to his conduct on that day. The broken home syndrome and its adverse effects on the children. The desertion by the mother. Lack of parental care, upbringing, guidance and love. From his individual context he was the parental figure of his young brother. He was being beaten by girls. His ego must have been bruised in the presence of the dearest person who looks up to him. The inferiority complex arising from seeing and being jeered and chided by those who had better life opportunities of being in school whilst he had dropped. The combination of all these factors cumulatively had an influence in the ultimate conduct of the accused on the day.

Having outlined and weighed the above, it is our finding that a rehabilitative sentence is ideal in the circumstances of this case. Given that at present there seem to be no open home or family to welcome the accused in, a penalty which allows him to be corrected, reformed, trained and provide interim shelter and boarding is ideal.

The case of S v Mphahlele supra is of persuasive authority.  In this case the child convict was sentenced to a correctional home where he was to receive training and an education.

In terms of s351(2) of the Criminal Procedure and evidence Act [9:07], any court before which a person under the age of nineteen years has been convicted of any offence, may instead of imposing a fine or imprisonment for that offence subject to subsection (1) of s337, may order that he or she be placed in a training institute or reform school. S 352(2) stipulates the period of retention as three years at any given time if the child convict is not sentenced through the Children’s Act [Chapter 5:06].

As per the recommendations of the probation officer, the accused deserves to be placed under a juvenile detention centre where he has time reflect on the crime he committed and be reformed and rehabilitated at the same time. There is also need for reintegration into society at a later stage in his life.

Accordingly, it is ordered that;

The accused is sentenced to placement at the Kadoma Training Institute for a period of three years.

The person in-charge of the facility must trace and ensure that the accused’s parents visit him periodically.

That his young brother must be allowed to pay him periodical visits.

National Prosecuting Authority, legal practitioners for the State

Samundombe & Partners, accused’s legal practitioners