The State v Clinton Magaya and Patrick Masheri and Roberto Kachepa and Tanatswa Nhimura

### Preamble
1
HCC28-22
CRB64-22
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THE STATE

versus

CLINTON MAGAYA

And

PATRICK MASHIRI

And

ROBERTO KACHEPA

And

TANATSWA NHIMURA

HIGH COURT OF ZIMBABWE

MUZOFA J,

CHINHOY, 27, 28 September & 13 October 2022

Assessors:	Mrs Mawoneke

Mr Manyangadze

Criminal Trial – Sentence

G T Dhamusi, for the State

S.T. Farai, for the accused

MUZOFA J. When the accused persons appeared before the court our attention was drawn to an irregularity by the State. The irregularity was not denied by the State. It is this. The 1st accused was granted bail pending trial and has been out of custody .It was one of his bail conditions that he reports at ZRP Rimuka every Friday. He initially reported for some time and later defaulted. However he continued to appear before the remand court.

He was subsequently arrested for defaulting on his bail conditions on the 15th of September 2022. He was taken to Kadoma Magistrates Court for an inquiry on the default. He was also indicted for trial on the same day. The 1st accused did not deny that he was no longer reporting at the police station. His explanation before the court was that the police had advised him that they could not find his papers. This averment was not controverted by the State.

The court in making its determination found that the State failed to prove that the 1st accused had violated his bail conditions. The accused’s bail was therefore not terminated. The State was dissatisfied by this decision and it sought to challenge the decision. Since the 1st accused had been indicted the State feared that the accused may not appear for trial. The State directed Prisons to detain the 1st accused. He was detained without proper paper work. A rough calculation shows that he was detained from the 15th to the 27th of September 2022 when this court formally terminated his bail.

We record our strong disapproval of such high handedness by the State. Obviously this was an unlawful detention. If the State was aggrieved by the decision of the Magistrate, it must have used the proper procedure to challenge the decision. The matter has since been placed before a Judge on review. This is what must have happened instead of resorting to self-help. The court will consider this in sentencing the accused.

We revert to the matter before us. The four accused persons were arraigned for the murder  of  the deceased , Elisha Dahwa as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].At the inception of the trial , the State withdrew charges before plea against the 2nd , 3rd and 4th accused persons. The matter proceeded in respect of the 1st accused person only.

Counsel found each other and agreed that the proper charge in the circumstances is culpable homicide, a permissible verdict. The concession was properly made. The accused was then convicted of contravening s 49 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] as per the statement of agreed facts.

The 1st accused person resides in Kadoma and is an artisanal miner. The deceased also resided in Kadoma and he was a rank marshal.

The 1st accused and the 2nd accused are cousins, in that their mothers are sisters.

On the 15th of October 2021 the   accused persons were at some friend’s place when they saw the deceased in the company of one Mercy Madzimure ‘Mercy’. Mercy was the second accused’s girlfriend. It appears the accused persons suspected that Mercy was also in a love relationship with the deceased. The 1st accused was not amused by this purported love triangle. He took it upon himself to verify this and asked Mercy if the 2nd accused was aware that he was in a polyandrous relationship. Thereafter an altercation ensued between the accused persons and the deceased. The 1st accused then stabbed the deceased with a sharp metal object once on the left thigh. The accused persons then left the scene.

The deceased bled profusely and was taken to Kadoma hospital. He succumbed to the injury the following day. The doctor who compiled the post mortem report concluded that death was due to hypovolemic shock and penetrating incision wound on the left thigh.

In assessing the appropriate sentence we are enjoined to weigh both the mitigating and aggravating factors in this case. We shall also consider the unlawful detention from the date of indictment to the trial date.

In mitigation we shall consider the submissions made on behalf of the 1st accused person. He pleaded guilty to the charge which is a sign of contrition. His family contributed towards the funeral expenses and met the other demands by the deceased’s family. We were advised that he has been in custody for close to a month. We do not consider the period of any significance in assessing the appropriate sentence. He is married and has one child. He therefore has family responsibilities. He cooperated with the police during investigations. He stabbed the deceased once and he did not aim the blow at a vulnerable part of the body like the head or the heart. The wound was 3.2 cm by 0, 5 cm which may not be too deep. Generally the offence he committed results in stigma from society not only for him but his whole family. On his part he will live the rest of his life with the guilt, shame and trauma of having split human blood unnecessarily.

We were urged to consider a wholly suspended sentence or an imprisonment term of not more than three years.

That is all that can be said in mitigation.

What aggravates the accused’s case in our view is that this was an unprovoked assault. Mercy was not his girlfriend. The 2nd accused who should have been the aggrieved did not take any active role in the attack on the deceased although there was evidence that he assaulted Mercy. This is a case where the accused cried more than the bereaved. He overplayed his role of a brother’s keeper.

The offence of culpable homicide arising from violent conduct like in casu remains a very serious offence. The sanctity of life cannot be over emphasized. Once a life is lost it cannot be replaced. Violence will never be a panacea to resolve disputes. If anything it begets unnecessary problems. In this case there was no need for a fight over a girlfriend.

The accused laboured under the wrong and misguided view that he had the right to police over the second accused and Mercy’s love relationship. If Mercy had decided to be in love with the deceased, it was her right to make such a decision. In any event the issue had nothing to do with the 1st accused person.

The court is alive to the fact that the accused lacked the intention to kill. He is therefore being punished for his negligence resulting in the death of the deceased. His negligence is moderate in that even if he used a sharp weapon the blow was directed to the thigh, a place that ordinarily would not pose danger to life.

The offence committed by the accused remains serious and a wholly suspended sentence as suggested would be inappropriate particularly in view of the fact that the relationship between the deceased and Mercy had nothing to do with the accused. It was for the second accused to deal with the issue. As properly observed in S v Tofarasei HMA 8/22 infidelity can never be a justification for loss of life. A custodial sentence would be appropriate in the circumstances. The court can only pronounce itself against such conduct by way of an exemplary custodial sentence.

The following sentence would therefore meet the justice of this case;

“7 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition the accused does not, within that period commit any offence involving the use of violence upon the person of another or involving the negligent cause of the death of another through violent conduct and for which the accused is sentenced to a term of imprisonment without the option of a fine.

Effective sentence is 5 years imprisonment.”

National Prosecuting Authority, counsel for the state

Farai & Associates, counsel for the accused