The State V Prudence Nyamokondiwa [2025] ZWCHHC 13 (31 January 2025)

2 HCC 03/25 HCCR 1568/24 THE STATE Versus PRUDENCE NYAMUKONDIWA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 31 January 2025 Assessors: 1. Mr. Mutombwa 2. Mrs. Mateva Criminal Trial - Sentencing Judgment Mr. G.T. Dhamusi, for the State Ms. S. Shoko, for the accused MUZOFA J: The accused was initially arraigned before the court jointly charged with one Takeson Nyazama. The State as the dominus litis decided to withdraw charges before plea against Takeson and proceeded against the accused only. The accused was charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). The State alleged that on the 19th of May 2024 the accused assaulted the deceased one Still Tembo using a pick and a shovel. The accused pleaded not guilty to the charge but tendered a plea of guilty to the lesser charge of culpable homicide. The State accepted the plea. Both the defence and the State agreed on what transpired on the day and came up with a statement of agreed facts. It was agreed that the accused and the deceased, together with other revellers were whiling up time drinking beer at Lungu Bottle Store, Conrise Farm, and Raffingora Mutorashanga. For some unknown reason the deceased approached the accused and requested that the accused buy him some beer. The accused declined to buy beer for the deceased. This irked the deceased. For his uncharitable conduct the accused was slapped on the face by the deceased. The accused acted maturely he did not retaliate. The deceased was reprimanded and there was some peace. Around midnight, as it were all things have to come to an end, the Bottle Store was closed. It was time for all to return where they came from. The accused walked to his homestead in the company of Jealous Nyashumba and Clyne Mutafara. The accused had a pick and a shovel in his possession. The deceased also used the same route going back to his homestead. He trailed behind the accused and his colleagues. It seems the deceased was not yet done with the accused. The deceased started or continued from where he left in the Bottle Store, he hurled insults at the accused and Takeson. We were not told whether this was still purely about the beer or there was something more. The accused walked some distance but the insults continued. It seems they just had enough, they stopped and waited for the deceased to catch up with them. When the deceased caught up with them, he did not relent but continued with the verbal barrage. The accused started assaulting the deceased. The deceased retaliated. What started as a drunken fight escalated and the deceased picked a stone and hit the accused. The accused used the pick and the shovel that were in his possession and assaulted the deceased. Eventually they were restrained by other villagers. Both sustained injuries but the deceased who was already on the ground nursed severe injuries. The deceased was taken to his homestead. When his condition deteriorated, he was taken to hospital where he later succumbed to the injuries. The doctor who examined the deceased’s remains concluded that death was due to epidural hematoma, fracture and severe head injuries. The State produced the post-mortem report, the shovel that the accused used and an affidavit setting out the shovel’s dimensions. Ms Shoko confirmed that the accused fully understood the agreed facts and his plea was genuine. It is on that basis that he was convicted with culpable homicide. In assessing sentence, the Court is required to determine the degree of negligence first. See S v Fungai Chitepo HMA 3/17 and Duduzile Manhenga v S HH 62/15. There is no doubt that both the deceased and the accused were intoxicated although the extent of drunkenness was unclear. The deceased’s conduct was uncalled for, he was a nuisance. At the bottle store, he allegedly slapped the accused. The accused did not retaliate. The slap was for his refusal to buy beer for the deceased. Along the way back home, the deceased continued in his verbal assault towards accused. Obviously, there was some extent of provocation. Although the extent of provocation cannot be classified to be intense. We were not told the exact words used by the deceased. What we know though is that the barrage was prolonged. The accused kept his head sane once he could have simply done it again. We also took into account that when the accused eventually waited for the deceased he was the first to assault the deceased. We were not told what he used. It must be borne in mind that he already had in his possession a shovel and a pick. The probabilities are that he used the weapon first. There is no way that he could have placed them down first then picked them. As the fight continued the deceased also picked a stone and struck the accused. At some point the deceased fell on the ground and the accused continued to strike deceased with the shovel. The accused must have continued assaulting the deceased while he lay on the ground out of anger. In S v Kumire HH63/24 the accused was convicted of culpable homicide. In assessing the degree of negligence, the court considered that the deceased was the aggressor, had taunted the accused on his medical condition. He was just a nuisance. Deceased contributed to his death. In reacting to the provocation, the accused struck the deceased once on the head. Unfortunately, he succumbed to the injuries. The court found the degree of negligence to be ordinary. We were not persuaded by Ms Shoko’s submissions that the degree of negligence was ordinary since the accused was provoked, intoxicated and he used weapons that were in his possession. He did not go out to look for them to assault the deceased. We were not persuaded because when they eventually fought and the deceased was down, the accused continued to assault the deceased. When the deceased was down obviously the accused was satiated and quenched his anger there was no need to continue assaulting the deceased. At this stage the accused to control his anger and let it get the better of him. There is wisdom in the saying of the wise that never react to a situation while still angry. Unlike in the Kumire case where one blow was delivered, in thi case the accused relentlessly continued to strike the deceased who was by then on the ground. We agreed with Mr Dhamusi that the degree of negligence was on the medium side it cannot be said to be high. The accused is a first offender who pleaded guilty to the charge. He did not waste the Court’s time and resources. The plea of guilty must be rewarded for what it is. He is fairly young aged 31 years old, and has a life ahead of him. He has family responsibilities. Ms Shoko urged the court to consider that he used lethal weapons that were in his possession. She was correct. However, the number of blows delivered betray the point Ms Shoko sought to advance. Life was lost and cannot be restored. Even if the deceased contributed to his death no one deserves to die. At times we are all each other’s keepers when another behaves wildly the level headed must control the situation and not follow suite. Both counsel urged the court to impose a sentence in the region of 3 years. The deceased’s father who gave the victim impact statement indicated that the accused nor his family did not assist in any way. They did not even attend the funeral. He said the whole family was in pain particularly the mother who is now very emotional when she receives news of a death. She relives the deceased’s death. They both referred us to the relevant cases. However, after considering the cases, we are of the firm view that the circumstances can be differentiated from the ones before the court. In S v Chibaya HB 232/23 the deceased went to the accused’s house where he demanded a cellphone when the accused’s wife ran away, deceased followed her and forcefully took the phone. The accused assaulted the deceased. The court found that the accused used excessive force although the deceased was a nuisance. The accused had spent 22 months in pre-trial incarceration. The court imposed a sentence of 3 years with 1 year conditionally suspended. In S v Ndlovu HB43/24 the deceased had robbed the accused’s colleague. Deceased on being confronted became very aggressive and threatened to stab them. Accused disarmed deceased and stabbed him once. A sentence of 3 years with 1 year conditionally suspended for 5 years was imposed. The common thread in the cases referred to us show that where the deceased was the aggressor and one blow is delivered Courts have settled for lower custodial sentences. In the Kumire case supra a sentence of 7 years with 4 years suspended was imposed the effective sentence was 3 years. In this case the accused used excessive force in his reaction to the provocation. He is the one who eventually initiated the physical fight. He was in custody for close to 6 months which the Court will take into consideration. We note that this offence was committed in May 2024 and by January 2025 the matter has been finalised. He has been tried within 7 months, he did not spend much time with anxiety and anticipation of a criminal case handing over him. The accused will live with the stigma of having killed the deceased. That on its own is a lifetime indictment. He expressed through his legal practitioner that he was willing to pay some form of compensation. Accordingly, the following sentence is imposed. 6 years imprisonment of which 2 years imprisonment is suspended on condition that within that period the accused does not commit an offence involving violence of which upon conviction he is sentenced to imprisonment without the option of a fine. Effective 4 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Pundu & Associates, the accused’s prodeo Legal Practitioners 2 HCC 03/25 HCCR 1568/24 2 HCC 03/25 HCCR 1568/24 THE STATE Versus PRUDENCE NYAMUKONDIWA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 31 January 2025 Assessors: 1. Mr. Mutombwa 2. Mrs. Mateva Criminal Trial - Sentencing Judgment Mr. G.T. Dhamusi, for the State Ms. S. Shoko, for the accused MUZOFA J: The accused was initially arraigned before the court jointly charged with one Takeson Nyazama. The State as the dominus litis decided to withdraw charges before plea against Takeson and proceeded against the accused only. The accused was charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). The State alleged that on the 19th of May 2024 the accused assaulted the deceased one Still Tembo using a pick and a shovel. The accused pleaded not guilty to the charge but tendered a plea of guilty to the lesser charge of culpable homicide. The State accepted the plea. Both the defence and the State agreed on what transpired on the day and came up with a statement of agreed facts. It was agreed that the accused and the deceased, together with other revellers were whiling up time drinking beer at Lungu Bottle Store, Conrise Farm, and Raffingora Mutorashanga. For some unknown reason the deceased approached the accused and requested that the accused buy him some beer. The accused declined to buy beer for the deceased. This irked the deceased. For his uncharitable conduct the accused was slapped on the face by the deceased. The accused acted maturely he did not retaliate. The deceased was reprimanded and there was some peace. Around midnight, as it were all things have to come to an end, the Bottle Store was closed. It was time for all to return where they came from. The accused walked to his homestead in the company of Jealous Nyashumba and Clyne Mutafara. The accused had a pick and a shovel in his possession. The deceased also used the same route going back to his homestead. He trailed behind the accused and his colleagues. It seems the deceased was not yet done with the accused. The deceased started or continued from where he left in the Bottle Store, he hurled insults at the accused and Takeson. We were not told whether this was still purely about the beer or there was something more. The accused walked some distance but the insults continued. It seems they just had enough, they stopped and waited for the deceased to catch up with them. When the deceased caught up with them, he did not relent but continued with the verbal barrage. The accused started assaulting the deceased. The deceased retaliated. What started as a drunken fight escalated and the deceased picked a stone and hit the accused. The accused used the pick and the shovel that were in his possession and assaulted the deceased. Eventually they were restrained by other villagers. Both sustained injuries but the deceased who was already on the ground nursed severe injuries. The deceased was taken to his homestead. When his condition deteriorated, he was taken to hospital where he later succumbed to the injuries. The doctor who examined the deceased’s remains concluded that death was due to epidural hematoma, fracture and severe head injuries. The State produced the post-mortem report, the shovel that the accused used and an affidavit setting out the shovel’s dimensions. Ms Shoko confirmed that the accused fully understood the agreed facts and his plea was genuine. It is on that basis that he was convicted with culpable homicide. In assessing sentence, the Court is required to determine the degree of negligence first. See S v Fungai Chitepo HMA 3/17 and Duduzile Manhenga v S HH 62/15. There is no doubt that both the deceased and the accused were intoxicated although the extent of drunkenness was unclear. The deceased’s conduct was uncalled for, he was a nuisance. At the bottle store, he allegedly slapped the accused. The accused did not retaliate. The slap was for his refusal to buy beer for the deceased. Along the way back home, the deceased continued in his verbal assault towards accused. Obviously, there was some extent of provocation. Although the extent of provocation cannot be classified to be intense. We were not told the exact words used by the deceased. What we know though is that the barrage was prolonged. The accused kept his head sane once he could have simply done it again. We also took into account that when the accused eventually waited for the deceased he was the first to assault the deceased. We were not told what he used. It must be borne in mind that he already had in his possession a shovel and a pick. The probabilities are that he used the weapon first. There is no way that he could have placed them down first then picked them. As the fight continued the deceased also picked a stone and struck the accused. At some point the deceased fell on the ground and the accused continued to strike deceased with the shovel. The accused must have continued assaulting the deceased while he lay on the ground out of anger. In S v Kumire HH63/24 the accused was convicted of culpable homicide. In assessing the degree of negligence, the court considered that the deceased was the aggressor, had taunted the accused on his medical condition. He was just a nuisance. Deceased contributed to his death. In reacting to the provocation, the accused struck the deceased once on the head. Unfortunately, he succumbed to the injuries. The court found the degree of negligence to be ordinary. We were not persuaded by Ms Shoko’s submissions that the degree of negligence was ordinary since the accused was provoked, intoxicated and he used weapons that were in his possession. He did not go out to look for them to assault the deceased. We were not persuaded because when they eventually fought and the deceased was down, the accused continued to assault the deceased. When the deceased was down obviously the accused was satiated and quenched his anger there was no need to continue assaulting the deceased. At this stage the accused to control his anger and let it get the better of him. There is wisdom in the saying of the wise that never react to a situation while still angry. Unlike in the Kumire case where one blow was delivered, in thi case the accused relentlessly continued to strike the deceased who was by then on the ground. We agreed with Mr Dhamusi that the degree of negligence was on the medium side it cannot be said to be high. The accused is a first offender who pleaded guilty to the charge. He did not waste the Court’s time and resources. The plea of guilty must be rewarded for what it is. He is fairly young aged 31 years old, and has a life ahead of him. He has family responsibilities. Ms Shoko urged the court to consider that he used lethal weapons that were in his possession. She was correct. However, the number of blows delivered betray the point Ms Shoko sought to advance. Life was lost and cannot be restored. Even if the deceased contributed to his death no one deserves to die. At times we are all each other’s keepers when another behaves wildly the level headed must control the situation and not follow suite. Both counsel urged the court to impose a sentence in the region of 3 years. The deceased’s father who gave the victim impact statement indicated that the accused nor his family did not assist in any way. They did not even attend the funeral. He said the whole family was in pain particularly the mother who is now very emotional when she receives news of a death. She relives the deceased’s death. They both referred us to the relevant cases. However, after considering the cases, we are of the firm view that the circumstances can be differentiated from the ones before the court. In S v Chibaya HB 232/23 the deceased went to the accused’s house where he demanded a cellphone when the accused’s wife ran away, deceased followed her and forcefully took the phone. The accused assaulted the deceased. The court found that the accused used excessive force although the deceased was a nuisance. The accused had spent 22 months in pre-trial incarceration. The court imposed a sentence of 3 years with 1 year conditionally suspended. In S v Ndlovu HB43/24 the deceased had robbed the accused’s colleague. Deceased on being confronted became very aggressive and threatened to stab them. Accused disarmed deceased and stabbed him once. A sentence of 3 years with 1 year conditionally suspended for 5 years was imposed. The common thread in the cases referred to us show that where the deceased was the aggressor and one blow is delivered Courts have settled for lower custodial sentences. In the Kumire case supra a sentence of 7 years with 4 years suspended was imposed the effective sentence was 3 years. In this case the accused used excessive force in his reaction to the provocation. He is the one who eventually initiated the physical fight. He was in custody for close to 6 months which the Court will take into consideration. We note that this offence was committed in May 2024 and by January 2025 the matter has been finalised. He has been tried within 7 months, he did not spend much time with anxiety and anticipation of a criminal case handing over him. The accused will live with the stigma of having killed the deceased. That on its own is a lifetime indictment. He expressed through his legal practitioner that he was willing to pay some form of compensation. Accordingly, the following sentence is imposed. 6 years imprisonment of which 2 years imprisonment is suspended on condition that within that period the accused does not commit an offence involving violence of which upon conviction he is sentenced to imprisonment without the option of a fine. Effective 4 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Pundu & Associates, the accused’s prodeo Legal Practitioners