S v Mutazu (38 of 2024) [2024] ZWCHHC 38 (12 April 2024)

1 HCC38/24 HCCR1645/23 THE STATE versus MARTIN MUTAZU HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 27 February, 6 March & 12 April 2024 Assessors 1. Mrs Mawoneke 2. Mr Mutombwa Criminal Trial R. Nikisi, for the State M. Mutsvairo, for the accused MUZOFA J: The accused person pleaded not guilty to the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He however pleaded guilty to culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act. The State accepted their limited plea. The State and the defence agreed that the accused and the deceased were married and stayed together at Garadhi Village, Chipapa Chief Dendera, in Hurungwe. They were blessed with one child aged 4 by then. On the 15th of March 2022 the accused and the deceased had an altercation. The accused was a divorcee. The deceased suspected that the accused had resuscitated his love affair with his former wife. While they argued about the issue, the deceased stood by the door blocking the accused’s way out of the room. Irked by the accused’s conduct, the deceased slapped the accused twice with open hands on the face. The accused would have none of it, he pushed the deceased off his way. Instead of exiting he decided to revenge, he held her by the shoulders, hit her head against the wall thrice and threw her on the bed. He then left the room. He briefly went out to check on his cattle. When he returned, he found the deceased kneeling on the bed, a container of poison (oxamyl insecticide) was beside her. He suspected that she had taken poison. He rushed to neighbours to assist with traditional ways to neutralize and get rid of the poison. They obliged and they made a HCC38/24 HCCR1645/23 concoction of cow dung which they forced the deceased to drink to induce vomiting. Unfortunately, it did not work the deceased later died. On the 18th of March 2022, a post mortem was conducted and it conducted that death was due to head injury. It is only then that it dawned that the deceased did not succumb to poison but to the assault. The accused was then arrested. The State produced the post mortem report compiled by Doctor Zhuga who set out the cause of death as already indicated. It was marked exhibit 1. The accused’s confirmed warned and cautioned statement in which he narrated what transpired on the day was also produced by consent. It was marked exhibit 2. The issue is whether the accused set out to cause such death and achieved that purpose or he foresaw death as a likely result but continued with the conduct nonetheless. The narration in the warned and cautioned statement raise both self defence and provocation. Although the accused assaulted the deceased it is apparent that the assault was meant to make way for him to pass and a reaction to the slap. The accused overreacted to the two slaps. There is no self defence to talk about. From the evidence placed before us the accused attacked the deceased well after the slaps. The accused lacked the actual intention to cause the death. When the altercation started, the accused did not intend to have a physical confrontation with the deceased. It is only when the deceased blocked his way and slapped her that he responded. Similarly he did not foresee that death will result. He was negligent and failed to guard against the death. We find the concession by the State properly made. Sentence The sentence that the court settles for largely depends on the accused’s degree of culpability or moral blameworthiness. The sentence should however be fair and just instead of excessive, savage and draconian. See S v Ngulube HH 48-02. The sentence should be blended with mercy because mercy is an element of justice itself. See S v V 1972 (3) SA 611 (A) at 614. This is domestic violence but the Court will not lose sight that the deceased was the aggressor. She was married to the deceased who she knew was a divorcee and had children with his first wife. These matters of the heart defy logic. However once one marries a HCC38/24 HCCR1645/23 divorcee and there are children, it is highly unlikely that communication between the divorced couple will be completely cut. One should always leave room for their communication, of course not necessarily reconciliation. So when they communicate that should not be a basis for domestic violence. Cases of domestic violence are ever on the increase, they can never be condoned no matter the reason or who the aggressor is. The home that is supposed to be a place of security and comfort not a death trap. It can never be over emphasized that couples should seek alternative dispute resolution mechanisms to settle their disputes. We will take into consideration that the accused is a first offender with family responsibilities. He committed the offence after some provocation which is mitigatory. A neighbour told us that the accused and the deceased used to live a peaceful and loving life. The only challenge is that the neighbour would know what the two demonstrated outside. She did not know of what really took place between the two. Her evidence was of low probative value to us. The accused caused the death of his wife and that stigma will haunt him for life. No sentence imposed by the court can surpass the stigma and guilt conscience that the accused will carry throughout his life. He is remorseful. He engaged the deceased’s family. We were told the family requested 15 herd of cattle as compensation and he has paid 6 so far. We acknowledge that this form of compensation cannot bring the deceased back to life and this is not governed by criminal law. Infact if improperly handled and the compensation is demanded in lieu of burial of the deceased it becomes a punishable offence. However the gesture by the accused to cooperate and pay shows the extent of his remorse. The accused occupies a unique position, he is both the accused but he is also a victim of the offence. He lost a wife and mother to his child. Obviously he is also grieving. On the other hand a precious life was lost, the sanctity of life should always be given uttermost respect, once lost life can never be regained. The accused was overbearing in his response. The head is the central processing unit of the body. Hitting the deceased’s head against the wall, a hard surface three times was highly negligent. His moral blameworthiness cannot be said to be on the lower side. He exhibited a lack of self-control which the courts have time without number urged society to exercise in order to avoid incidents such as this one where a life was unnecessarily lost. As a result of the accused’s conduct their child has HCC38/24 HCCR1645/23 become a double orphan the mother gone and the father in prison. Violence should never be a solution to any dispute. In coming to an appropriate sentence we shall balance the offence, the accused’s circumstances and the interests of justice. See Chadyamunda HH228/89, S v Khumalo 1973 (3) SA 679, S v Van der Wan Westhuizen 1974 (4) SA 61). We were urged to impose a rehabilitative sentence in the form of a wholly suspended sentence. We were not persuaded and indeed there were no strong reasons advanced for the proposed sentence. Such a sentence would send a wrong message. Life is the greatest gift ever given where it is lost the courts must play its part to impose sentences suitable to the offence. It must however not break the accused. Accordingly the following sentence is imposed. 10 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition within that period the accused is not convicted of an offence involving violence for which upon conviction he is sentenced to imprisonment without the option of a fine. Effective sentence 8 years. National Prosecuting Authority, the State’s legal practitioners Mushonga, Mutsvairo, the accused’s pro deo legal practitioners