State v Ndlovu (64 of 2024) [2024] ZWCHHC 64 (16 July 2024)

1 HCC 64/24 HCCR 472/24 THE STATE Versus MIKE NDLOVU HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 16 July 2024 Assessors 1. Mr Kamanga 2. Dr Mashavave Criminal Trial Mrs. K. Teveraishe, for the State Ms. C. Museka, for the accused MUZOFA J: Violence and particularly domestic violence is not a panacea for any dispute. It only results in hurt, broken relationships, loss of trust, injuries and death as is in this case. The accused and his wife were blessed with a child and at two months, they by their conduct caused the death of their son. On the 25th of December 2021 the accused, his wife, their two month old son and accused’s mother proceeded to Ngoni Township for entertainment watching Nyau dancers. Around 2100 hours it was time to return home, the accused would have none of that. His wife demanded they must return but the accused who was now drinking beer became aggressive. He struck his wife who had the deceased strapped on her back with a clenched fist. Not to be outsmarted the wife retaliated and a fist fight broke out. All this took place in the presence of the accused’s mother. Amidst the melee, the accused struck the deceased with a fist meant for the wife. Sadly the deceased died instantly. For his conduct the accused was charged with murder it being alleged that he struck the deceased with intention to cause his death or with a realisation that death may result but persisted in the conduct. The accused denied the charge of murder but tendered a plea of guilty to culpable homicide. The State accepted the plea as tendered. The statement of agreed facts set out the facts as already summarised. HCC 64/24 HCCR 472/24 Ms Museka confirmed that the accused fully understood the statement of agreed facts and agreed with them. The plea is unequivocal. The accused is found not guilty of murder. He is found guilty of culpable homicide. Sentence The accused negligently caused the death of his 2-month-old son. The accused as a parent owed the deceased a duty of protection. Both the accused as the father and deceased’s mother were irresponsible, taking a 2-month-old to an open space for entertainment till night time. Thereafter they fought at a bar with the deceased on the mother’s back. They exposed the deceased to an unconducive environment. Section 81 (3) of the Constitution provides every child with the right to adequate protection by the High Court. The High Court is the upper guardian of all children and the parents or guardians are the primary carers and providers of the said protection. Where the primary carers fail in their duties, the High Court intervenes and it cannot countenance the ill-treatment, assault or killing of children. Where this happens, the accused must be adequately punished. The accused is a youthful first offender who pleaded guilty. He was only 20 years when he committed the offence. Despite that he was a mature 20 year old, he had been married for 2 years. He was now a responsible person. Age can no longer be a shield to hide behind. At that age being married he was expected to be an accountable man of the house. This is different from a 20-year-old still under parental care and support. Despite that the court recognises that at that age he still remains impressionable and would not respond to situations like an adult over 30 years. The accused is both the villain and the victim. No parent can desire the death of his child. He has suffered a double jeopardy having lost a child by his hands. He will live with the stigma for a very long time. The deceased’s mother gave evidence and told us that she left the deceased. She could not stand the loss, the psychological trauma was too much. So in addition to the loss of the child, he lost his marriage. The mother would have benefitted from some psychosocial support. There must be a holistic approach to such offences where the victims also get support to enable them to continue with normal life. The Court must make a finding on the degree of negligence. This will help the Court to properly assess the appropriate sentence. The higher the degree of negligence the stiffer the sentence . The degree of negligence is high. The accused fought the deceased’s mother who HCC 64/24 HCCR 472/24 had the deceased on her back. The chances that harm could befall the deceased were high. The mother could have fallen or ducked a blow all these posed a risk on the deceased who was still very vulnerable and in his formative stage of life. Any amount of pressure on his body would likely result in some harm. The accused did not guard against these eventualities that were within human contemplation. The defence urged the court to impose a wholly suspended sentence in line with the sentence imposed in S v Mushurwa HH 266/21. In that case the accused assaulted his 12- year-old son to death for stealing US$20.00. There was evidence that the deceased had developed a consistent tendency to take money from the accused without authority. In that case the court noted that the accused had a duty to protect the deceased but reneged on it. We were not persuaded to impose a like sentence. In that case, the deceased whether rightly or wrongly had contributed to the assault perpetrated on him. Every parent has a residual duty to discipline their children provided it does not go beyond reasonable discipline1. See also S v Mutero HH 173/23 where the accused was actually acquitted after killing her child. In this case the deceased was a recipient of a blow he had no contribution. The deceased was a very vulnerable infant who required a high degree of care and protection. He did not contribute to the dispute between the accused and his wife. The accused and his wife created a precarious situation that led to his demise. Although the State noted that life was lost, it quickly summarised the circumstances as the most unfortunate circumstances. It urged the court to impose a short custodial sentence and give the accused an opportunity to reflect and reform. The accused is not being punished for intentionally causing death but for being careless and not being astute in the circumstances. Both counsel referred us to cases of a similar nature. In S v Moyo HMA 21/22 which is almost similar to this case the deceased was 4 months old. The accused assaulted the deceased’s mother who had deceased strapped on her back with a broom stick. The broom stick broke and struck the deceased who later succumbed to the injuries sustained. The Court noted that despite the seriousness of the offence this was a deflected blow situation. The accused was sentenced to 4 years imprisonment of which 1 year was conditionally suspended for 5 years. Although this was a deflected blow situation the accused with some hindsight could have acted responsibly and avoided this needless death. This was a case of domestic violence 1 See S7 of the Children’s Act (Chapter 5:05) HCC 64/24 HCCR 472/24 were the accused assaulted his wife. It then resulted in the death of his son. At 20 the accused has schooled himself to domestic violence. A short custodial sentence will achieve both the rehabilitaion and the retribution that is called for in this case. The accused must reconsider his ways and be a better citizen after release from prison. His violent conduct must be nipped in the bud. Accused is sentenced to 5 years imprisonment of which 2 years imprisonment is wholly suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another and or involving negligently causing the death of another through violent conduct and for which the accused is sentenced to a term of imprisonment without the option of fine. National Prosecuting Authority, the State’s legal practitioners Matiyashe Law Chambers, the accused’s legal practitioners