S v Chayambuka & Anor (CRB 210 of 2016; HH 133 of 2017) [2017] ZWHHC 133 (23 February 2017)

1 HH 133-17 CRB 210/16 THE STATE versus NAISON CHAYAMBUKA and MOSES MUSUSA HIGH COURT OF ZIMBABWE TSANGA J HARARE, 21 and 22 & 23 February 2017 Murder trial A Masamha, for the State I Goto, for the 1st Accused O Marwa, for the 2nd Accused TSANGA J: The two accused were arraigned before this court on a charge of murder it being alleged that on the 1st of January 2016 around 00.30 hours at Home Plus bottle store in Bromley NRZ Quarters, they unlawfully and intentionally murdered Blessing Tondodza by head butting, kicking and assaulting him with a jacaranda switch and a metal fluorescent lamp holder on his head thereby causing injuries from which the said Blessing Tondodza died. The first accused tendered a limited plea of guilty to culpable homicide whilst the second accused had changed his mind and applied for separation of trials on account of his election to proceed with the murder trial. The separation was granted and the state proceeded with the limited plea in relation to the first accused but did not address mitigation and aggravation pending the finalisation of the trial of the second accused. However, overnight the second accused had a change of heart regarding proceeding with the murder trial, opting instead to proceed with the limited plea. His counsel, Mr Marwa explained that he had been summoned by prisons at the behest of the second accused who now wished to tender a limited plea of guilty with respect to culpable homicide. The state conceded to the application in view of its position that from the facts, the second accused was clearly guilty in his actions of the lesser crime of culpable homicide. This court granted the HH 133-17 CRB 210/16 application by the second accused to change his plea as it was of the view that on the facts it was indeed properly made. The statement of agreed facts (Annexure 1) as applicable to both accused in light of their limited plea, though initially dealt with separately mutatis mutandis were as follows: 1. The first accused Naison Chayambuka resides at NRZ Quarters, Bromley Goromonzi whilst the second accused Moses Mususa reside at Bromley Tobacco Graders Compound, Goromonzi. 2. The deceased Blessing Tondodza was a male adult and resided at Adiusa Farm Bromley. 3. On the 1st of January 2016 both accused persons and the complainant were patrons of Home plus Bottle Store Bromley together with other revellers. 4. One of the patrons Prosper Matseketu picked an argument with the bar lady, Catherine Shava over US$0.50 change which deceased said he was owed. The argument escalated ending in the first accused intervening in a bid to verify. As the first accused was interrogating Prosper Matseketu the deceased confronted him. 5. The deceased then struck the first accused with a fist once on the face and the first accused reacted by head butting the deceased three time on the face. The deceased then struck the first accused with a water glass before he bolted out of the bottle store with the first accused in hot pursuit. 6. The second accused Moses Mususa joined in the chase and the two caught up with the deceased at NRZ Bromley Quarters. The second accused who was armed with a fluorescent light metal holder struck the deceased once in the head. The accused also kicked the deceased on the head as deceased lay on the ground. Other people who had followed the parts pleaded with the accused persons to stop assaulting the deceased. They complied. 7. The deceased died on the spot and post mortem report was later conducted on 7 January 2016 by Dr Pesanayi. He concluded he cause of death as follows: 8. i) haemorrhagic shock ii) stab wounds and iii) assault The following exhibits were produced by the State in the following order: The post mortem report ( Exhibit 1) a) b) The confirmed warned and cautioned statement by the first accused ( Exhibit 2) c) The sketch plan (Exhibit 3) d) The confirmed warned and cautioned statement by the second accused ( Exhibit 4) e) The metal fluorescent lamp holder (Exhibit 5) f) The jacaranda tree switch (Exhibit 6) It was agreed that the accused persons negligently caused the death of the deceased. Both defence counsel confirmed that all the essential elements of the culpable homicide had been explained to the accused who had understood them and that the limited plea of guilty to culpable homicide was genuinely made. The court in both instances returned a verdict of guilty to the lesser charge of culpable homicide as pleaded. The defence counsels addressed the court on mitigation. The first accused was said to be a family man with three children aged 6, 3 and 2. He was aged 24 at the time he committed the offence, he is also a young first offender and as such it was urged that he HH 133-17 CRB 210/16 should be treated with leniency. The cases of S v Mpofu 1985 (1) ZLR at 255 and S v Muchimikwa 1985 (2) ZLR at 328 were cited in support of this contention. The fact that he did not waste the court’s time in that he pleaded guilty to culpable homicide was also said to be a factor which should weigh in his favour when it comes to sentencing him in that in so doing he facilitated the smooth administration of justice. (S v Katsaura 1997 (2) ZLR at p 102). Additionally the fact that the offence was not premeditated but rather one that arose from an act of provocation was equally regarded as a factor to be stirred into the pot of leniency. The court’s attention was drawn to the case of S v Silent Kazembe HH 378 /15 in which the court held that provocation of the lack of premeditation should not be ignored when determining an appropriate sentence. In that case which had come on review from the lower court that the latter had imposed a sentence of seven years imprisonment. On review, the court in analysing mitigatory factors reduced the sentence to three years. Mr Goto highlighted however that in that case the accused had compensated the deceased’s relatives and assisted at the funeral - factors which may have further nudged the court towards a more lenient altered sentence. The accused herein was said not to have been in a position to render such assistance because he was in custody at the time of the funeral. The case of S v Nhongo HH 52/03 where the accused were sentenced to 7 years for each count for culpable homicide arising from a provoked assault was also drawn to this court’s attention. Accordingly, Mr Goto deemed a sentence of six years imprisonment with one year suspended on the usual conditions to be appropriate in the present circumstances. Accused number two was equally said to be a family man with two minor children age d 8 and 5. He was 25 at the time of the offence. His 22 year old wife was said to be unemployed. The court was asked to take judicial notice of the circumstances he grew up in order to explain his moral turpitude. He grew up in a farming community and was orphaned at an early age. He was employed as a tobacco grader at a farm where he lived with his family. On the night in question, being New Year’s Eve, he had revelled with members of the community and had imbibed a considerable amount of opaque beer. The resultant inebriation therefrom is said to have clouded his better judgement. In the frenzy of the moment he had weighed violently in dispute between the first accused and the deceased. The spot light was also placed on the fact that he had spent almost 8 months in custody before he had been released on bail. Following his indictment in November he has been in custody. It was highlighted that he has therefore effectively done HH 133-17 CRB 210/16 almost a year of incarceration - a factor which it was said ought to be taken into account in sentencing him. His plea of guilty to a lesser charge though delayed by prevarication was said to be one genuinely made. The case of S v Nhongo (supra) was equally drawn upon to highlight the sentence in that matter. The case of S v Makombe HB 110 /15 in which the deceased pleaded to culpable homicide and received a sentence of 36 m