THE State V Kudakwashe James

### Preamble
1
HH 421-21
CRB 115/20
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THE STATE

versus

KUDAKWASHE JAMES

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 2 June 2021 & 3 June 2021

Criminal Trial

Assessors:      Mr Jemwa

Mrs Chitsiga

S Masokovere, for the State

J Makiya, for the accused

MUNANGATI-MANONGWA J: Accused herein was charged with murder as defined in s 47 of the Criminal Law (Codification & Reform) Act [Chapter 9:23].

The charge was accepted as Annexure “A”.

The allegations are that the accused person stabbed one Michael Tachivingwa with a knife once on the left thigh resulting in his death.

The accused pleaded not guilty to the charge. Mr Makiya for the accused tendered a plea of guilty to the lesser offence of culpable homicide which is a competent verdict on a charge of murder. The State accepted the tendered alternative plea.

The State and the defence came up with a statement of agreed facts which the court marked Annexure “B”. The statement of agreed facts was read into the record. Mr Makiya confirmed to court that the elements of the charge and the agreed facts had been explained to the accused and he had understood the same and was in agreement with them.  After deliberating on the statement of agreed facts the court was satisfied the offence of culpable homicide was proven. The court formally convicted the accused person of culpable homicide as defined in s 49(a) of the Criminal Law (Codification & Reform) Act. The State further produced the autopsy report duly compiled by the doctor who examined deceased’s remains. The contents were read into the record and the report was accepted as exh 1. The report reveals that the cause of death was severe hemorrhage due to a stab wound.

The agreed facts were that the accused and the deceased who are neighbours had a long standing dispute pertaining to field boundaries. On 20 September 2019 the deceased went to the field and cut firewood at the boundary of his field and that of the accused. The deceased took the firewood to his home. This did not please the accused. Accused and one Chamunorwa James went and retrieved the firewood from deceased’s home. The deceased and his father latter followed to accused’s homestead to enquire why the accused had carried the firewood to his home.  An altercation ensued and one Chamunorwa James who is at large assaulted the deceased with a shovel on the left thigh resulting in deceased falling down. Accused rushed to a disused house and returned with a kitchen knife.  He stabbed the deceased with the kitchen knife once on the left thigh. Accused knelt besides the deceased in order to stab him. Deceased bled profusely from the stabbed wound and upon being ferried to a nearby health center he was pronounced dead.

The accused is a first offender. In mitigation Mr Makiya submitted that the accused is 35 years old and has 4 children. He is the sole bread winner for his family and has no assets of value. He has savings to the tune of $1000 RTGS.

It was submitted that the court should take note of the fact that the accused had pleaded guilty to a lesser offence and had not wasted the court’s time. He had shown remorse and was contrite. It was submitted that he was apologizing for the loss of life and him and his family had contributed towards burial expenses of the deceased, by purchasing the coffin and meeting transport costs. The court was referred to the case of S v Landelani Tshuma HH 126/17 & Gladys Mutopa HB 127/17 for guidance on assessing the appropriate sentence. Apparently the circumstances in this case are materially different from those obtaining in the case. The case does not assist the court. The defence urged the court to pass a prison term wholly suspended on condition that the accused performs community service.

In aggravation, Mrs Masokovere for the State submitted that the issue that was obtaining between the parties pertaining to firewood was a simple issue which called for restraint on the part of the accused. The accused used a lethal weapon on a victim who was already incapacitated having been hit by a shovel by the accused’s colleague. Mrs Masokovere albeit conceding that the accused’s, degree of negligence could be rated as medium, properly emphasized that it was aggravatory that a life had been lost. The court was referred to the case of State v Makunde HB 32/13 where a youthful offender who had stabbed the deceased on the chest was found guilty of culpable homicide and was sentenced to an effective term of 4 years. Mrs Masokovere submitted that given that the accused had not directed the blow to a vulnerable part of the deceased’s body, a lesser sentence would be appropriate.

In considering sentence, the court took note of both the mitigatory and aggravating factors as presented by both counsel. It is imperative to note that there is an increase in the number of lives being lost due to violent actions arising out of petty disputes. Suffice to note that the boundary dispute in casu could have been resolved by a Village Head as the accused himself had initially suggested. To then proceed to be confrontational was not called for.  It was aggravating that the accused rushed to take a knife and attack deceased when deceased was in a position that did not pose a threat to the accused. The deceased had been knocked down by the shovel blow. It is generally accepted that you do not hit a man who is down. The accused did just that. The deceased was defenceless. He had no weapon on him. The accused failed to exercise restraint. The deceased was not the aggressor in the circumstances. He had, in the company of his father gone to enquire on why the accused had taken the firewood. The issue should not have resulted in loss of life.

Whilst the court takes note that the blow was not aimed at a vulnerable part of the body, the accused’s aggression needs censure. The accused negligently caused the death of deceased and a life lost is lost forever.

Whilst it is noted that the accused is the sole breadwinner with family responsibilities it is sometimes unavoidable for dependents to suffer as a consequence of commission of an offence by the bread winner. This inconvenience arises because the nature and gravity of the offence will require incarceration hence the removal of the breadwinner from the society.

The court does not however lose sight of the fact that the accused saved the court time by owning up to his unlawful actions when he pleaded guilty to culpable homicide. Further, he should benefit from his actions of assisting the deceased’s family during the interment of the deceased’s body. Such actions assuage the feelings of the deceased’s family as they point towards remorse. However, this is not a case where a fine or a wholly suspended sentence or community service can be imposed. Such a sentence given the circumstances of this case would result in the society losing confidence in the justice delivery system. A custodial sentence with part suspended on appropriate conditions is called for. The accused did not experience a significant pre-trial incarceration as he was on bail. As Chitapi J stated in S v Karadzangare HH 794/16:

“a proper sentence for culpable homicide depending on the circumstances of each case must not 	be unduly lenient nor unduly harsh. It must mirror the society’s abhorrence or disapproval of the 	accused’s conduct. The sentence should be one that reflects that negligent transgression in the 	conduct of members of society gets punished adequately.”

Whilst the degree of negligence herein cannot be termed gross, the sentence should send a clear message to would be offenders that restraint should be called for in settling disputes and the use of violence will not go unpunished. Taking into account the circumstances of the commission of the offence, the personal circumstances of the accused and the interests of justice, it is considered that the following sentence will meet the justice of this case.

The accused is sentenced to 5 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition that the accused does not commit within that period any offence involving the use of violence upon the person of another for which accused is sentenced to a term of imprisonment without the option of a fine.

Makiya & Partners, accused’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners