THE State V Tawanda Muranda

### Preamble
1
HMA 59-20
CRB 51-20
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THE STATE

versus

TAWANDA MURANDA

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO 22 OCTOBER, 2020

Assessors

Mr Chikukwa

Mr Nish

Criminal Trial – Sentence

B.E. Mathose, for the State

Ms L. Manyika, for accused

MAWADZE J:  	The loss of life in this matter was clearly unfortunate and regrettable by all accounts.

Both counsel agreed that on the available evidence the charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] cannot be sustained. The matter therefore proceeded on the basis of a statement of agreed facts and the accused was on his own plea duly convicted of contravening s 49(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to culpable homicide.

The then 28 year old deceased was a son of the accused’s brother. Both the now deceased and the 50 year old accused hail from Matava Village 2, Maranda, Mwenezi, Masvingo. The facts giving rise to the tragic loss of life are as follows;

On 15 December, 2019 both the now deceased and the accused were part of villagers gathered at headman Matava’s homestead where there was traditional beer drink. The accused however was not drinking beer.

The now deceased became a nuisance, probably because he was drunk. He stole fish belonging to one of the beer patrons. Tafirei Chikunguwo who was present reprimanded the now deceased. The now deceased was not amused and he picked a stool and tried to hit Tafirei Chikunguwo with it. The accused who was present intervened and blocked the blow. The now deceased continued being a nuisance. As a result the accused picked a half home moulded brick and hurled it at the now deceased. The now deceased was hit on the head.

The now deceased briefly left for his homestead and returned after 30 minutes. He was visibly unwell and passed on as a result of the injuries he had sustained.

The post mortem report shows that he sustained the following injuries;

“1.	depressed skull fracture left frontal area

2.       bruised right side of face”

The cause of death is said to be “head injury”.

The offence of culpable homicide arising from violent conduct is indeed a very serious offence. It entails loss of life.

The sanctity of human life needs no emphasis. Once a life is lost it cannot be replaced hence it is the duty of the courts to guard jealously the sanctity of human life. Those who fail to value human life should be punished in an appropriate manner.

The accused’s conduct was clearly disproportionate to the theft of fish and to the now deceased’s conduct. There was therefore need for the accused to restrain himself and not resort to violent behaviour by acting in an equally violent manner.

It is aggravating that the accused chose to use a potentially lethal weapon in the form of a half farm brick which weighed about ½ kg. To make matters worse the accused blindly hurled the ½ brick at the now deceased oblivious of where it would hit. Severe force was used. The half brick hit a sensitive part of the now deceased’s body being the head. The now deceased’s skull was fractured. This resulted in the now deceased’s immediate death.

The accused’s degree of negligence is on a higher side and cannot be censured by a sentence of community service as suggested by the accused’s counsel.

The mitigatory factors enjoin this court to impose the minimal possible custodial sentence.

The 50 year old accused has huge family responsibilities. He has 7 children of which 4 children are minor children and still at school. The family heavily relies on accused’s manual labour as he is a peasant farmer.

As a first offender the accused deserves to be treated with some measure of leniency.

A plea of guilty is an important mitigatory factor. Besides ensuring the swift administration of justice at minimal expense, it is a sign of contrition. As a result the court should reward the accused for not wasting the court’s time and resources.

The accused was very co-operative with the police. After realising he had seriously injured the now deceased he tried to help him albeit without success. Thereafter the accused handed himself over to the police and made a clean breast of his negligent conduct.

Besides being a relative of the now deceased the accused still deemed it fit to pay compensation. He paid 4 beasts, 7 goats, a donkey and cash R500. In addition to this attempt to atone his wrongful conduct he shall forever live with the stigma that he caused the loss of life of his brother’s son.

To some extent the now deceased contributed to this tragic incident. He was not only a nuisance but violent too. After stealing fish he could not accept wise counsel. Instead he became aggressive and wanted to assault one of the patrons with a stool. The accused may have rightly felt duty bound to intervene.

The fatal assault itself was not prolonged. A single blow was delivered. It was unfortunate that it led to the loss of life. In that vein therefore a proper balance should be struck in assessing the appropriate sentence.

In the result the accused is sentence as follows;

“2 years imprisonment of which 1 year imprisonment is suspended for 6 years on condition accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentence to a term of imprisonment without the option of a fine.

Effective: - 1 year imprisonment”

National Prosecuting Authority, counsel for the state

Dube, Banda & Nzarayapenga, pro deo counsel for the accused