State v Tendekai Mukwindidza

### Preamble
1
HMT 23-19
CRB 30/18
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STATE

versus

TENDEKAI MUKWINDIDZA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 19 March 2019

ASSESORS:	1. Mrs Mawoneke

2. Mr Magorokosho

Criminal Trial

T. Gutuza, for the accused

J Matsikidze, for the state

MUZENDA J: The accused appeared before us facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was subsequently convicted of a lesser charge of culpable homicide as defined s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] after both counsel submitted a statement of agreed facts to that effect.

The facts of this case are briefly as follows:

The accused is a male adult of 23 years, but at the time of the commission of the offence in 2012, he was 17 years, residing at Bvirindi Village, Chief Zimunya, Mutare. He was employed as a herdboy at Mundembe Village Chief Zimunya, Mutare. The deceased Cosmas Ngadzingwe was a resident of Mundembe Village, Chief Zimunya Mutare, he was 6 years older than accused, he was23 years then. On 21 September 2012 around 6pm the accused was passing time watching a game of draught at Mhaka Bottle Store. He was in the company of three other young men. At some point the deceased entered Mhaka Bottle Store and proceeded to ask accused his name. The accused gave the deceased his name before the latter made the same demand. The accused was not amused by this and a war of words then ensued. When the deceased threatened to assault him, the accused walked away. The deceased followed and made further threats of assault. The accused fled and exited the bottle store and his friends followed before they all moved to Chirochepi Bottle Store. Undeterred, the deceased followed them and demanded that they buy him an alcoholic beverage commonly referred to as “vhinyu” (vineyard wine). When the request was turned down the deceased became violent and started assaulting the accused and his friends.  Others remained calm but the accused picked up a baked half farm brick and threw it at the deceased who was struck on the head and fell down and died instantly.

The post-mortem report revealed the following injuries: compound skull fracture on the forehead. The doctor concluded that the cause of death was Head Injury.

It is on the basis of those facts that the concession made by the state to accept culpable homicide was proper in our view. What is left is for this court to assess a fair and just sentence, hence we should strike a balance between the mitigatory and aggravatory factors in this matter.

Accused is now 23 years married and has a minor child aged 2 months, the wife and child depends on the accused. The accused also takes care of his mother, and a niece who is doing form four. Accused has been waiting for the trial of this matter for 6 years. He pleaded guilty thereby saving the time of the court and at the same time showing contrition. He paid seven cattle to the deceased’s family and greatly cooperated with the police during investigations. Had he been convicted in 2013, he would not have been imprisoned due to his youthfulness. The accused was gravely provoked by the deceased, he was stalked and assaulted, he went away from the deceased but deceased followed him. He ran away from the deceased but deceased followed after him threatening to assault the accused. The accused could have been sentenced to a region of 2 – 5 years for culpable homicide and now he could have completed serving. He is not to blame for the delay by the state to bring him to trial.

However the accused has been found guilty of an offence of culpable homicide committed out of violence. The courts value the sanctity of life and should ensure that society at large should try to avoid loss of it. This matter is however different from other matters. The conduct of the deceased on the day in question unavoidably led to his death. Overally accused’s moral blameworthiness is very low. He should have ran away from the deceased.

In the result we believe the following sentence is justified in lieu with the paramount intention of rehabilitating the accused and check his conduct in the future:

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

National Prosecuting Authority, state’s legal practitioners

Bere & Brothers, pro deo counsel for the accused.