The State v Continent Ngairongwe and Beverly Ngairongwe

The two accused were charged with the murder of Fungai Mubepeti (62 years old) which took place on 27 April 2019 at Ngairongwe village homestead, Mutengu village, Chief Mujinga, Gwiwa, in Tengwe. The first accused was the deceased's nephew. The deceased's cattle had grazed on the first accused's maize field. The deceased approached the first accused at his homestead accusing him of striking her heifer with an axe and demanding compensation. An argument ensued leading to the first accused assaulting the deceased, including striking her on the head with a stick. The deceased sustained a deep cut on the skull and intracranial haemorrhage, dying from head injury. The first accused pleaded not guilty to murder but guilty to culpable homicide. The second accused pleaded not guilty to murder, stating she had only witnessed the assault and had tried to restrain the first accused.

• Whether the first accused was guilty of murder or the lesser charge of culpable homicide
• Whether the first accused intended to kill the deceased or acted with negligence
• Whether the second accused participated in the assault and could be held liable for murder
• What appropriate sentence should be imposed for culpable homicide in the circumstances
• Whether a suspended sentence was appropriate for culpable homicide resulting in death

First accused: Convicted of culpable homicide and sentenced to 10 years imprisonment of which 3 years suspended for 5 years on condition he does not commit any crime involving violence for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 7 years imprisonment. Second accused: Acquitted of murder after the state withdrew the charge.

In cases of culpable homicide resulting in death, particularly where violence is used against a vulnerable victim, a custodial sentence is warranted and a wholly suspended sentence is inappropriate. The use of violence by a young person against an elderly, defenceless relative constitutes gross negligence requiring imprisonment to reflect the sanctity of life and the seriousness of the offence. When imposing sentence for culpable homicide, courts must balance personal circumstances of the accused (youth, family responsibilities, first offender status) against the gravity of taking a life through violent negligence. A suspended portion of sentence can serve a legitimate rehabilitative purpose to deter future violence, even where the overall sentence is significant. Under s 8(b) of the Criminal Procedure and Evidence Act, where the prosecution withdraws a charge after plea due to insufficient evidence, the court must acquit the accused.

The court expressed concern that defence counsel could even approach the court seeking a wholly suspended sentence under the factual circumstances, suggesting this indicates the accused still lacks understanding of the consequences of violence and needs to mature in this regard. The court noted it was disturbing that after killing a person, albeit negligently, the accused expected "virtually what amounts to a slap on the wrist." Tsanga J observed that it "boggles the mind" why the deceased would want compensation if the accused had not attacked her cow as he claimed. The court remarked that "cows will always accidentally graze over crops" and there were alternative ways to settle such disputes other than resorting to violence. The court noted that suspended sentences are generally not encouraged for lengthy sentences (citing S v Gorogodo and Attorney General v Paweni Trading Corporation), but acknowledged this is not a hard and fast rule (citing S v Sawyer as cited in S v William Nhongo).

This case illustrates the application of culpable homicide principles in Zimbabwean criminal law, particularly where an accused causes death through gross negligence rather than intent. It demonstrates the court's approach to sentencing in culpable homicide cases involving violence against vulnerable victims (elderly women), rejecting wholly suspended sentences where life has been lost. The case also clarifies the prosecutor's discretion under s 8(b) of the Criminal Procedure and Evidence Act to withdraw charges after plea where evidence is insufficient, and the court's mandatory duty to acquit in such circumstances. The judgment reinforces the sanctity of life principle and the need for custodial sentences even for first offenders in cases of culpable homicide involving violence.