THE State V Maslon Madziwana

### Preamble
1
HMT 17-22
CRB 23/22
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THE STATE

versus

MASLON MADZIWANA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 10 May 2022

Criminal Trial

ASSESORS:	1. Mr Chagonda

2. Mr Chipere

M. Musarurwa, for the state

C. Maunga, for the defence

MUZENDA J: On 2 July 2021 at around 1900 hours at Power Sales Pavement, Herbert Chitepo Street, Mutare, accused, aged 21 years, assaulted GODFREY MUTAMBANESHIRI, a mentally challenged patient, using concrete stones on the ribs and head. He died at Victoria Chitepo Hospital on the same day. Accused is now being charged of Murder as defined in s 47(1)(a) or (b) of the Criminal Law Code. Accused denies the charge of Murder but admits to a lower charge of Culpable Homicide.

In his defence summary Annexure “B”, he states that on the day in question he was inebriated. He found now deceased smoking a cigarette and requested for a lighter from now deceased. Now deceased declined. Deceased verbally insulted accused and the latter decided to proceed with his journey. Deceased stood up, picked a concrete stone and followed accused. Deceased threw the concrete stone at accused which hit him at the back. Accused turned back and retaliated using the same stone, the stone hit deceased on his ribs and now deceased fell and hit his head on the concrete pavement and sustained injuries at the back of his head and started bleeding therefrom.

A security guard approached accused and sprayed some substance on accused’s eyes and told accused that he did so to stop accused from fleeing. Police came to the scene, recorded his details and released him. Accused was arrested by the police on 12 July 2021. Accused stated further that he had no intention to harm, injure or cause the death of the now deceased person.

In its summary, the state alleges that deceased was a mental patient of no fixed abode. On the fateful date the accused caused the death of the now deceased by assaulting him several times, (not once) using concrete stones on the ribs and head thereby causing severe head injuries. Deceased was conveyed to the hospital where he passed on, on admission. The pathologist concluded that the cause of death was due to severe head injury.

What is common cause between the state and defence is that accused was in contact with the deceased on 2 July 2021. Accused admits hitting now deceased once on the ribs leading to deceased falling on the pavement. Accused confirms that now deceased sustained head injuries which were attributed by the medical doctor to have caused now deceased’s death. What is really in dispute is whether deceased sustained head injuries by reasons of falling on a hard surface or that accused struck deceased on the head several times using concrete stones.

Lesley Mapako an employee at Shark Security Company knows accused and also knew now deceased during his life time as a mental patient. On the night in question he was on night duty. He saw accused picking concrete stones advancing towards now deceased who was seated on a pavement. Accused pelted stones at deceased and one hit deceased on the ribs, the other one hit him on the head. The witness decided to go and rescue now deceased, and when he got to the scene he observed accused holding a concrete stone using it to hit the now deceased on the head several times at close range. He remonstrated accused but the latter insisted. Charles Rukanda, a fellow guard had to use a pepper spray and sprayed on accused’s face to stop him from further assaulting now deceased. The witness observed further that deceased was bleeding from the nose and ear whilst lying on the ground. Deceased was groaning in pain. The evidence of Martin Rakabopa and Denis Gunhe all confirm this story on virtually all falls and there is no need to repeat what they saw.

Contrary to what accused states in his defence, there is no evidence of provocation on the part of now deceased. Accused delivered more than one blow, more than two blows on the body of now deceased using concrete stones. He was seen hitting deceased’s skull using a concrete stone several times. He was restrained but could not heed, he had to be sprayed with pepper to stop assaulting deceased. Deceased was fatally injured at the scene especially on the head when he bled from the nose and ears. We are all unanimous that accused was not provoked by the deceased, maybe accused was angry when deceased declined to give accused the lighter. By hitting deceased on a delicate part of the body using a hard object like a concrete stone and hitting deceased several times, we did not find it difficult to determine the aspect of intention. Granted, accused may have taken alcohol but he voluntarily consumed it but he recalls in detail what happened on the day in question. From the facts of the matter, accused could have realised that his conduct might cause death and continued to engage in that conduct despite the risk or possibility of such a result. Accused had legal intent in causing now deceased’s death. Accordingly accused is guilty of murder with constructive intent.

Sentence

In assessing an appropriate sentence the court will factor in both the mitigatory and aggravatory issues submitted on behalf of the parties. Accused is a youthful first offender who might have been drunk on the day in question. He might have been offended by now deceased’s reaction. I am not told by the defence whether there were other people who heard the insults. What is clear however lies in the confirmed warned and cautioned statement that accused picked up a stone and hit deceased on the ribs and head. Deceased bled from the nose and ear, groaned in pain showing the gravity of the injuries. Deceased was 53 years old fit to be accused’s father, hence accused’s moral blameworthiness is very high. Accused would have simply walked away than punishing deceased who was mentally unstable. Mentally challenged patients need a lot of tolerance and compassion from those who are normal. You cannot use violence against them, they need social accommodation to show that they are also loved regardless of their condition. Life was unnecessarily lost and accused is to blame for that.

Accordingly accused is sentenced as follows:

18 years imprisonment.

National Prosecuting Authority, state’s legal practitioners.

Maunga Maanda & Associates, accused’s legal practitioners.