The State v Darlington Mutandi

On 23 May 2021, the accused (aged 41) and the deceased Netto Dube (aged 34) attended a traditional healer's ceremony at Senzeni Moyo's homestead in Tsholotsho. People were partaking of home-brewed beer. The accused and deceased began insulting each other. Fanti Nkomo took the deceased away from the accused and led him out of the homestead. The deceased continued to insult the accused using vulgar words ("your mother's clitoris" and "your anus"). This infuriated the accused who charged towards the deceased and they started fighting. Fanti Nkomo tried to restrain them but failed. The accused tripped the deceased causing him to fall down facing upwards. The accused then trampled on the deceased's stomach 2 times with the heel of his bare foot. Fanti Nkomo restrained the accused from further assaulting the deceased and the accused left the scene. The deceased stood up, staggered and fell to the ground. He died the following day (24 May 2021) at his homestead. The post mortem report listed the cause of death as peritonitis, small bowel perforation and blunt force trauma to the abdomen.

• Whether the accused was guilty of murder or the lesser crime of culpable homicide
• Whether the accused acted with negligence in causing the death of the deceased
• Whether the force used by the accused was disproportionate to the unlawful attack he faced
• What constitutes an appropriate sentence for culpable homicide in the circumstances

The accused was found not guilty of murder but guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 3 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition that he does not within that period commit an offence of which assault or physical violence on the person of another is an element and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. Effective sentence: 2 years imprisonment.

Where an accused person uses disproportionate and excessive force in response to an unlawful attack, causing injuries that lead to death, and it was objectively foreseeable that such actions would result in death, the accused is guilty of culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act. Culpable homicide is established where the accused negligently failed to realize that death may result from his conduct, or realizing that death may result, negligently failed to guard against that possibility. A reasonable person placed in similar circumstances would have avoided acting in the manner the accused did. The test is objective foreseeability within the range of ordinary human experience.

The court observed that community service would trivialize the offence of culpable homicide where a life has been lost. The courts must send a loud and clear message that the killing of a fellow human being will not be tolerated, and it is incumbent on the courts to emphasize the sanctity of human life. Society frowns at the taking of another human being's life. The court noted that provocation and intoxication, while relevant mitigating factors, do not excuse the use of disproportionate force resulting in death.

This case illustrates the application of culpable homicide principles in Zimbabwean criminal law, particularly in circumstances involving provocation, intoxication, and the use of disproportionate force in self-defense. It demonstrates the court's approach to distinguishing between murder and culpable homicide based on the mental element (negligence versus intention). The case also reflects the balancing exercise courts undertake in sentencing for culpable homicide, emphasizing the sanctity of human life while considering mitigating personal circumstances. The judgment reinforces that even where there is provocation and the accused acts in response to an unlawful attack, the use of excessive force that results in death will attract criminal liability and custodial sentences.