The State v Harmony Kambasha and Malcom Kambasha

On the night of 24 August 2007, the deceased was apprehended at Tarlington Farm in possession of stolen irrigation pipes. Upon apprehension, he was subjected to severe assault by members of the public at the farm. After the assault, both the deceased and the stolen pipes were surrendered to the two accused persons at Bodele Farm (where the pipes had been stolen from). The deceased was placed under the custody of a guard. The accused, realising that the deceased had been seriously injured, failed to take reasonable care to avert death. The deceased had been mortally wounded and was under the detention and control of the accused persons. The accused persons were aged 33 and 26 years respectively at the time of trial and had endured 7 months of imprisonment while awaiting trial.

• Whether the accused owed a duty of care to the deceased once they had taken him into their detention and control
• Whether the accused's failure to provide reasonable care to avert death constituted culpable homicide
• Whether the accused should have been charged with murder or culpable homicide
• What is the appropriate sentence for culpable homicide based on negligence rather than intent

Each accused was sentenced to pay a fine of $500.00 or in default of payment 3 months imprisonment. In addition, 12 months imprisonment the whole of which is suspended for a period of 5 years on condition the accused does not again during that period commit any offence involving assault or the negligent killing of a fellow human being.

When an accused person takes custody and control of an injured individual, they voluntarily assume a duty of care to that person and must take reasonable steps to avert death, regardless of the injured person's moral blameworthiness or criminal conduct. Failure to discharge this duty of care constitutes culpable homicide. The right to life enshrined in the Constitution applies to all persons, including suspected criminals. In cases of culpable homicide based on negligence rather than intent, the accused is being punished for carelessness rather than evil intent, and the function of punishment is educative (to inculcate caution and encourage attentiveness to the safety of others) rather than purely coercive.

The court made strong observations about prosecutorial practice, stating that the State should not routinely charge accused persons with murder whenever a person is alleged to have killed another. There is a need to sift and assess the facts of each case with due care and diligence to distinguish murder from culpable homicide and charge the appropriate crime. It is prejudicial to charge an accused with murder when facts obviously disclose culpable homicide. The court noted that had the accused been appropriately charged from the beginning, the matter would have been concluded approximately 6 years earlier. The court also observed that subjecting the accused to further incarceration would not serve any useful purpose apart from brutalizing them, and that the accused did not appear to be men of violent disposition.

This case is significant in Zimbabwean criminal law for establishing that persons who take custody and control of an injured individual owe that person a duty of care, even if the individual is a suspected criminal and even if they did not cause the injuries. The case emphasizes the constitutional right to life and the sanctity of human life regardless of moral blameworthiness. It also provides important guidance on distinguishing between murder and culpable homicide, criticizing prosecutorial practice of routinely charging murder when facts disclose the lesser offense. The case illustrates the principle that culpable homicide based on negligence should be treated differently from intentional crimes, with punishment serving an educative rather than purely punitive function. It demonstrates the court's willingness to impose non-custodial sentences in cases of low moral turpitude where there has been prosecutorial delay and overcharging.