On 24 August 2017, the accused (aged 48) bought a donkey from Gin Zihwa, and the deceased Malambani Makando (aged 64) witnessed the sale. The donkey was not delivered. On 28 August 2017, the accused approached the deceased at his homestead to follow up on the donkey. A misunderstanding arose between them. The deceased accused the accused of being greedy and struck him once with a walking stick. The accused then dispossessed the deceased of the stick and used it to assault the deceased all over the body repeatedly. Marise Makondo heard the noise, rushed to the scene, and managed to restrain the accused. The deceased was transported to Zvishavane District Hospital where he died. Post mortem examination revealed the cause of death as asphyxia, broncho aspiration, haemopneumothorax, multiple rib fractures, and assault.
The accused was found not guilty of murder but convicted of culpable homicide. He was sentenced to 5 years imprisonment, with 3 years suspended for 5 years on condition that he not be convicted of an offence involving violence during that period, whereupon conviction he would be sentenced to imprisonment without the option of a fine. Effective sentence: 2 years imprisonment.
For a conviction of murder, the state must prove that the accused had the requisite intention to kill in the form of dolus directus or dolus eventualis. Where such intention cannot be established but the accused acted negligently in causing death, the appropriate conviction is culpable homicide. A plea of guilty to a lesser competent charge (culpable homicide) may be accepted where the evidence does not support the requisite intention for murder but demonstrates negligence in causing death. In sentencing for culpable homicide, the court must consider all relevant factors including whether the deceased was the initial aggressor, the accused's personal circumstances, delay in prosecution, and the need to denounce violence resulting in death.
The court observed that had the accused been tried and sentenced timeously, he would have been towards the end of his sentence by the time of the actual trial (almost 5 years later). The court emphasized that 'these courts always frown at the loss of life through violence,' reinforcing the general principle that violent conduct resulting in death warrants serious judicial condemnation regardless of mitigating circumstances. The court noted that the weighty mitigation in this case was specifically that the deceased was the aggressor and that the accused had waited in excess of 4 years for justice through no fault of his own.
This case illustrates the distinction between murder and culpable homicide in Zimbabwean criminal law, particularly the importance of establishing mens rea (criminal intention). It demonstrates how courts apply the principle of negligence in homicide cases and how mitigating factors such as provocation by the deceased as initial aggressor, the accused's personal circumstances, and systemic delays in prosecution can significantly influence sentencing. The case also reflects the judiciary's balancing act between acknowledging mitigating circumstances and maintaining the principle that courts must denounce violence resulting in loss of life.