The State v Covered Taguma and Shepherd Taguma

### Preamble
1
HMT 4-19
CRB 04/19
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THE STATE

versus

COVERED TAGUMA

and

SHEPHERD TAGUMA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 29 January 2019

Criminal Trial

ASSESORS:	1. Mr Chipere

2. Mr Magorokosho

J Chingwinyiso, for the State

C Chibaya, for the 1st accused

Mrs C Kanengoni, for the 2nd accused

MWAYERA J: The accused persons have been arraigned in this court on a charge of murder. On reflection before commencement of trial, the State reduced the charge to culpable homicide. The State and defence came up with a charge of culpable homicide and a Statement of Agreed Facts. The accused persons pleaded guilty to culpable homicide. The deceased and the two accused were blood brothers with the deceased being the eldest.

It is the State’s contention that on 7 January 2015, the accused persons unlawfully caused the death of Gibson Taguma by assaulting him with fists and booted feet all over his body as well as stamping on him as he lay on the ground. The Statement of Agreed Facts revealed among other common cause aspects that on 7 January 2015, the accused persons were at Mabvazuva Business Centre in Rusape for a beer drink. A misunderstanding arose between the deceased and the 1st accused, Covered Taguma, when the deceased demanded $10-00 he had lent to the 1st accused in 2014. They were restrained by other beer patrons when they were about to engage in a fist fight.

On their way home at around 2300 hours, the two accused assaulted the deceased with fists and booted feet all over his body as well as stamping on him as he lay on the ground. Upon realising that they had injured him, the two accused took the deceased to the 2nd accused’s homestead where he slept for the night. On 8 January 2015, the accused took the deceased to ZRP Rusape where he reported that the deceased had been assaulted by unknown assailants. At that juncture the deceased was unconscious. The deceased was referred to Rusape General Hospital where he was pronounced dead upon arrival.

There being no disputed facts, the following exhibits were tendered as evidence by consent. A post mortem report by Dr T. Tembo which concluded that the deceased Gibson Taguma died as a result of a head injury and Chest Trauma was tendered as exh 1 by consent. Also tendered as exh 2 is a warned and cautioned statement of accused 1, warned and cautioned statement of accused 2 was tendered and marked as exh 3. Finally in evidence by consent, a sketch plan by the attending details was submitted as exh 4. The circumstances surrounding the matter were captured in the statement of agreed facts paragraph 1-15.

Statement of Agreed Facts

“1.	The first accused, Covered Taguma, is a male adult aged 35 years, residing at House Number 734, Jacaranda Avenue, Rusape. He is not employed.

2.	The second accused, Shepherd Taguma, is a male adult aged 31 years, residing at House Number 1234 Mabvazuva Township, Rusape and is not employed.

3.	The deceased, Gibson Taguma, was a male adult aged 37 years at the time of his death who resided at House Number 1674 Mabvazuva Township, Rusape. He was not employed

4.	The accused and the deceased were blood brothers.

5.	On the 23rd of December 2014, the deceased gave the first accused $10-00 for the first accused to buy groceries for their mother who resides in Taguma Village, Chief Makumbe, Buhera.

6.	On the 7th of January 2015, the two accused and the deceased were drinking beer at Mabvazuva Business Centre and were drunk.

7.	An altercation arose between the deceased and the first accused when the deceased accused him of not having bought groceries for their mother with the $10-00 the deceased gave him.

8.	The two were restrained by other patrons when they were about to fight, with the first accused insisting that he used the $10-00 to buy the required groceries.

9.	After the beer drink around 2300 hours, the deceased persisted demanding the $10-00 from the first accused and followed him towards the second accused’s home.

10.	The two accused then negligently assaulted the deceased with clenched fists and booted feet all over the body and stamping on him as he lay on the ground.

11.	When the two accused discovered that the deceased had been injured, they took him to the second accused’s homestead where he spent the night.

12.	On the 8th of January 2015, the second accused took the unconscious deceased to ZRP Rusape where he reported that the deceased had been assaulted by unknown assailants in order to facilitate his treatment.

13.	The deceased was referred to Rusape Hospital where he was pronounced dead upon arrival.

14.	A post mortem conducted on the remains of the deceased established the cause of death as haematoma on the right and left cerebral tissue (brain tissue), head injury and chest trauma.

15.	The accused’s conduct was unlawful.”

Sentence

In an endeavour to reach out on appropriate sentence it is imperative that the court in exercising its sentencing discretion looks closely at the following factors.

The mitigatory factors.

The aggravatory factors.

The circumstances of the offence.

The sentencing principle that is, seeking to match the offence to the offender, while at the same time ensuring that justice is tempered with mercy is such a manner as not to erode the confidence of society in the justice delivery system.

We have considered all mitigatory factors advanced by Mr Chibaya for the 1st accused and Ms Kanengoni for the 2nd accused. Both accused persons are first offenders who pleaded guilty to culpable homicide. Many a time this court has made pronancements that a plea of guilty should be rewarded for what it is worth. See the case of S v Makumbe HH 39/18 were it was stated that:

“A plea of guilty must be recognised for what it is - a valuable contribution towards effective and efficient administration of justice. It must be made clear to offenders that a plea of guilty while not absolving them is something which will be rewarded-otherwise again why plead guilty.”

See also S v Mpofu 1985 (1) ZLR 285 and S v Buka 1995 (2) ZLR 130. The emphasis

by the court is that a plea of guilty merits some credit by way of modest reduction in sentence. In this case the plea of guilty to culpable homicide is viewed as sign of regret of what transpired on the fateful day. Both accused persons have lost a blood brother due to irresponsible conduct of subjecting their brother to violent attacks. Both accused cooperated with the police and admitted having assaulted their brother in their confirmed warned and cautioned statement tendered as exh 2 and 3 respectively.

The accused will live with the stigma that goes with having caused the death of their own brother. Even though the accused persons stand convicted of culpable homicide, society out there does not know the difference between culpable homicide and murder. The whole family will live with the mark and daunt that goes with having caused the death of a family member.

Also in mitigation we have considered the personal circumstances of the accused persons. Both accused are family men with heavy responsibilities. However, as correctly observed by the State counsel Mr Chingwinyiso, the deceased lost his God given right to life at the hands of the accused. Such lost life can never be replaced by contrition or remorse. The deceased’s children will never have a father. The right to life is a constitutionally guaranteed right, s 48 is instructive. No one has a right to take away another’s life. The legislature in its wisdom saw it proper to provide for a penalty of up to life imprisonment for culpable homicide.

The offence is serious and prevalent. Resolution of disputes by violence is archaic and in most cases has ghastly consequences as occurred in this case. The circumstances of the case show that the loss of life could have been avoided. We are alive to the fact that the deceased and accused had partaken of alcohol but certainly such cannot be an excuse for taking away another’s life. It is time the message is sent loud and clear that if one cannot drink and act responsibly then they should refrain from partaking alcohol.

We have been referred to two cases S v Muzilawepi Hlupa and others and S v Tshuma and another, wherein this court sentenced the accused persons convicted of murder to the option of a fine. We must at the onset point out that the circumstances of the two cases are distinguishable from the present case. Further, we must point out that the reasons in reaching at the sentences was informed by the inordinate delay in finalising of the matters 7 years and 6 years respectively.

We must also point out that the court in both cases imposed suspended prison terms in the region of 5 years despite the recognition of the delay. This shows that courts do not treat with kid gloves people who resort to violence as a way of resolving disputes and end up negligently causing the death of others. In the present case, 3 to 4 years delay cannot be described as inordinate delay in finalisation of a matter. We respectfully differ with the imposition of a fine for culpable homicide emanating from physical abuse. In this case, what further aggravates the offence is the fact that the two brothers teamed up to negligently and fatally attack their own brother. Although they took the deceased for medical attention, the injuries occasioned given the post mortem report were on a vulnerable part of the body, the head.

The court has to match the offence to the offender in coming up with an appropriate sentence. See S v Simon Ngulube HH 48/02. A fine will trivialise an otherwise very serious offence. As upon weighing mitigatory factors vis a vis aggravatory factors. It is our considered view that the offence is deserving of a custodial term. We will however suspend a large portion given the mitigatory factors and that the accused have been in suspense for 3 years awaiting the matter to be finalised. Each accused is sentenced as follows:

5 years’ imprisonment of which 2 ½ years’ imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, State’s legal practitioners

Chibaya & Partners, 1st accused’s legal practitioners

Matsika Legal Practitioners, 2nd accused’s legal practitioners