State v Elton Makaza

On 9 September 2019 at around 1000 hours, the accused (aged 54) found his wallet and belt in his nephew's (the deceased's) bedroom. Annoyed by this discovery, the accused picked sticks from a tea field and assaulted the deceased all over the body. The accused then left the deceased in the room and notified other relatives that he had assaulted the deceased. The following day in the evening, the deceased was found lying dead on his bed. The post-mortem examination by Dr. Brian Makumbe revealed multiple bruises on the deceased's hand, thighs, back, torso and a fracture on the occipital bone. The doctor concluded the cause of death was head injury and under-nutrition. The sticks used were small, ranging between 1cm and 1.5cm in diameter with weight of all being less than a kilogram (between 4 grams and 22 grams). The accused admitted to having negligently assaulted the deceased and leaving him unattended after the assault.

• Whether the accused was guilty of culpable homicide
• What constitutes an appropriate sentence for culpable homicide arising from domestic violence in circumstances involving assault with sticks on a malnourished person
• Whether a wholly suspended sentence is appropriate given the mitigating and aggravating circumstances

The accused was sentenced to 4 years imprisonment wholly suspended for 5 years on condition that the accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

In cases of culpable homicide arising from domestic violence, a custodial sentence is appropriate even where there are significant mitigating factors. A fine for culpable homicide occasioned by physical assault would be inappropriate and would make society lose confidence in the justice delivery system, constituting a mockery of the sanctity of precious human life. Violence-related offences resulting in loss of life cannot be treated with leniency ('kid gloves'). In sentencing, courts must strike a balance between the offence and offender, tempering justice with mercy while ensuring the interests of justice are met. The domestic setting where violence occurs is an aggravating factor as the home is supposed to be a place of protection, love and patience. A wholly suspended sentence may be imposed where there are highly mitigatory circumstances including the accused's health condition and significant pre-trial incarceration period.

The court observed that the distinction between culpable homicide and murder is non-existent in the community, meaning the accused will bear the stigma of being labeled a 'killer' regardless of the technical legal distinction. The court noted that the deceased's condition of being under-nourished exacerbated the situation and contributed to the fatal outcome. The court remarked that the matter could have easily been resolved in a diplomatic manner to avoid taking away a God-given and constitutionally guaranteed right to life. The court emphasized that pre-trial incarceration is 'pregnant with anxiety and trauma' and should be considered as a mitigating factor in sentencing.

This case demonstrates the Zimbabwean High Court's approach to sentencing in culpable homicide cases arising from domestic violence. It establishes that while mitigating factors (first offender status, guilty plea, health issues, pre-trial detention) are important, violent offences causing death cannot be treated lightly even when committed with relatively minor implements. The judgment emphasizes that fines are inappropriate for violence-related deaths as they would undermine public confidence in the justice system and fail to reflect the sanctity of human life. The case illustrates the court's balancing exercise between tempering justice with mercy while protecting the constitutional right to life and deterring domestic violence. It is significant for its recognition that homes should be places of protection and love, and that taking the law into one's own hands in domestic settings is a serious aggravating factor.