S v Kapungu (20 of 2024) [2024] ZWCHHC 20 (29 February 2024)

1 HCC20/24 REF: HCCR73/24 THE STATE versus TREVOR KAPUNGU HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI 16 & 29 February 2024 Assessors: Mr Chivanda Mr Mutombwa Criminal Trial K. Teveraishe, for the State T. D. Dzvore, for the accused MUZOFA J: [1] Losing one’s child no matter at what age is devastating for any parent. It is more shattering when it is a fratricide. One son killing the other. It is indeed a double tragedy for one is dead and the other remains facing the risk of imprisonment. As if that is not enough there is always the attendant societal stigma that they will carry along in their lives. This is what we could infer from the accused’s mother who appeared before us expressing her deep anguish on the death of his son the deceased and the arrest of his son the accused. [2] The allegations are that on the 10th of December 2023, the accused stabbed the deceased his brother once on the back with intention to cause his death or where death was foreseeable but he persisted in his conduct. [3] The accused was charged with murder in contravention of s47 (1) of the Criminal Law [Codification and Reform] Act (Chapter 9:23). He denied the charge and tendered a plea of guilty to the lesser charge of culpable homicide. [4] The State accepted the tendered plea and the matter proceeded by way of a statement of agreed facts that was drawn by both parties. The facts as set out in the statement can be summarised as follows. HCC20/24 REF: HCCR73/24 [5] The accused and the deceased were brothers. The deceased was the older brother. They lived at number 434 Chitambo, Chinhoyi with their sister and mother. Their father passed on in 2009. [6] On the 10th of December 2023 their mother left for church leaving the accused cutting the hedge whilst the deceased was cleaning his rooms. While the deceased was about his duties his friend one Nomore joined him. They sat under a mango tree conversing. [7] The deceased suddenly came out of the house and asked the accused about his Gucci T-shirt which the deceased could not find and strongly suspected the accused to have taken. The accused professed ignorance over the missing T-shirt. The deceased would have none of the denial he suddenly became violent and dragged the accused into the house. [8] In the house the deceased went berserk and destroyed the accused’s musical instruments. Thereafter he started assaulting the accused. He pushed him into their mother’s bedroom and locked him in. [9] Neighbours heard this commotion but they could not interfere. The deceased locked the accused inside the bedroom and went outside where he called one Takudzwa Gaya and explained what happened between him and the accused. By then the accused was inside the house shouting for help, none came by. [10] The deceased returned to the house unlocked the door and resumed assaulting the accused. As the assault continued the pair moved to the kitchen. The accused stumbled on a dish full of kitchen utensils and fell on it. The accused picked a knife from the dish and stabbed the deceased once on the back. [11] The accused fled from the scene and proceeded to advise his mother at church who immediately returned home. The deceased went to Sarudzai Meso's house where he was assisted and eventually taken to Chinhoyi Provincial Hospital. [12] The deceased died on the same day. Doctor Makumbe the doctor who examined the deceased’s remains concluded that death was due to massive intrathoracic bleeding secondary to penetrating lung trauma. [13] Mr Dzvore confirmed that he had explained to the accused the charge and the accused understood both the essential elements of the offence and the facts relied upon. HCC20/24 REF: HCCR73/24 [14] The state produced by consent the post mortem report, the accused’s confirmed warned and cautioned statement and a white knife about 17 centimeters long which the accused used to stab the deceased. [15] We carefully considered the facts as set before us, what exercised our mind was whether self defence could be a complete defence in this case. [16] The only available version of what transpired was from the accused. He explained how the deceased assaulted him and eventually how he stabbed the deceased. What was strange though is that the deceased was stabbed on the back. If the accused picked the knife while the deceased was assaulting him, then they were facing each other. The deceased then must have been stabbed on the front part of his body. [17] Since the deceased was stabbed on the back, the probabilities are that the deceased had turned and his back was to the accused. At that point it is likely that the assault had ceased. The accused used that opportunity to retaliate for the continuous attack on him. What was strange though is that we were not told of any injuries that the accused sustained as a result of the attack on him by the deceased. [18]. While courts do not condone violence or self -help remedies, there are circumstances where a belligerent person corners and assaults someone to the point where self-defence becomes necessary. Self-defence in such circumstances exonerates the accused. See S v Chitara HH 356/23 where the deceased continuously attacked the deceased who then picked a bottle and struck the deceased once leading to his death. The facts in this case do not show that scenario. The attack in our view had ceased. The stabbing was more out of anger and revenge than self-defence. [19] We do not lose sight though that the accused was under intense stress from the sustained attacks by the deceased. An armchair approach that he must have taken some sober action would be unfair on the accused. We find that he was entitled to use some force to protect himself even from further imminent attacks from the deceased. The deceased had already displayed a tendency to take a break from assaulting him and then resume. In such circumstances self-defence would be a partial defence and reduce the charge from murder to culpable homicide. We find the concession to be properly made. The accused is accordingly found guilty of culpable homicide. HCC20/24 REF: HCCR73/24 Sentence [20] In assessing sentence the court will consider that the accused is a youthful first offender who pleaded guilty to the charge. He was aged 27 years at the time of the commission of the offence, he was unmarried. He was still staying with his mother. [21] In mitigation he took the witness stand and gave evidence. He explained how he was remorseful and how he regrets the whole incident. He said he had never fought with his brother and even on this day he did not retaliate as the deceased was his elder brother. We wondered if this was true considering that his age is well beyond the age of physical chastisement. It was revealing though that the deceased was well known for his violent disposition in the community that is why the neighbour did not interfere when he was assaulted. [22] In terms of s9 of the Sentencing Guidelines1 evidence of genuine remorsefulness and evidence of provocation by the victim is mitigatory. In this case the accused stabbed the deceased once and rushed to advise his mother. He was arrested at the hospital when he had gone to check on his brother the deceased. Even before this court his demeanor showed that he regrets what he did. The deceased was the aggressor and was very patronizing and high handed. There is ample eveidence that the accused was provoked which is mitigatory. [23] For the accused we were urged to follow the reasoning in S v Mushurwa HH266/21 where the court imposed a wholly suspended sentence on a father who assaulted his 12 year old son to death. The court considered that the accused father suffered a loss that would haunt him the rest of his life and still had responsibilities towards his other child. [24] We were not persuaded to impose a wholly suspended sentence in view of the circumstances of the case. Indeed, the accused is being punished for being negligent. He used the knife when the danger was no longer in existence. In terms of the Sentencing Guidelines the presumptive sentence is 5 years where there are aggravating factors and 3 years where there are mitigating factors. [25] The State led the deceased’s mother for the victim impact statement. The mother expressed her deep sense of loss of a beloved son. She said she had three children the eldest is now gone. However, when the court asked her about their relationship, she confessed that the deceased was violent. She applied for a protection order against him. In 1 Criminal Procedure (Sentencing Guidelines) Regulations ,2023 HCC20/24 REF: HCCR73/24 our view this home was a traumatized home due to the deceased. He must have been very patronizing in his conduct towards his family members. [26] The way they lived tells it all. The deceased used 2 rooms of the 4 rooms. The mother and her two children including the accused used 2 rooms. Obviously, the deceased had an unfair advantage. She said the deceased was unmarried but had fathered a child living with disability. Even if she tried to paint a truly grieved mother it was apparent that life was difficult with the deceased. Generally, therefore the loss of a son was in the number and nothing more. [27] She emphasized that sending the accused to prison could be a double loss for her since one son is now deceased and the other would be lost to prison. [28] The accused is being punished for being negligent and the sentence depends on the degree of culpability or moral blameworthiness. The sentence should balance the interest of society, the accused and consider the offence. A serious offence should be visited with stern sentence. However, the sentence must be fair and just instead of excessive, savage and draconian. See S v Ngulube HH 48-02. It must be tampered with mercy. Mercy is a hallmark of justice itself. See S v V 1972 (3) SA 611 (A) at 614. [29] In The State v Gunde & Anor HH481/23 the court considered the import of the interest society as represented by the State. It noted that the State represents the interests of the complainants, the victims and the society at large. Society expects protection from the State and imposing appropriate sentences builds confidence in the justice delivery system. It is then important for the Court to consider the salient facts of the case and come up with a sentence that may reflect societal interest. [30] In this case the offender and the victim were brothers. It is the immediate family that feels the brunt of this offence. The mother particularly is the sole bruised figure. Sending the accused to an effective custodial sentence would further brutalize her as she stated in her address to the court. Her agony was so apparent as she addressed the court. This was despite the fact that the deceased was a of a violent disposition. [31] We also considered that the accused is a victim in this case. He lost a brother that cannot be taken away from him even if the loss was through his conduct. The accused will live with the stigma the rest of his life. In our view a custodial sentence would be HCC20/24 REF: HCCR73/24 inappropriate in this case. The accused must be given a second chance to reflect on his conduct. The following sentence would be appropriate in the circumstances. 24 months imprisonment of which 12 months imprisonment is suspended for 5 years on condition accused does not commit within that period any offence involving violence on the person of another for which upon conviction accused is sentenced to imprisonment without the option of a fine. The remaining 12 months imprisonment is further suspended on condition accused completes 420 hours of community service at Zimbabwe Electoral Commission, Chinhoyi. Community service starts on the 4th of March 2024 and must be completed within 12 weeks. It must be performed between the hours of 8am to 1pm and 2pm to 4pm each Monday to Friday which is not a public holiday to the satisfaction of the person in charge of the institution, who may on good cause grant the accused permission to be absent on a particular day or days or during certain hours but such leave of absence shall not count as part of community service to be completed. National Prosecuting Authority, the State’s legal practitioners. Mushonga Mutsvairo, the accused’s pro deo legal practitioners.