The State v Lovemore Makombe

On 6 November 2014 at GVL Motors, Corner Harare Road and Netherby Drive in Bulawayo, the accused and the deceased, who were cousins, quarreled over their failure to get transport to Mahatshula. The misunderstanding degenerated into a fist fight which was started by the deceased. The accused retaliated by slapping the deceased once with an open hand on his face. The deceased fell down onto the tarmac with the back of his head and sustained injuries. The accused bought headache pills for the deceased who complained of a headache. The deceased was rushed to United Bulawayo Hospital around 2300 hours, treated and discharged. Around midnight his condition deteriorated further, he was readmitted to the hospital, and he died on 7 November 2014. The post mortem report gave the cause of death as intracranial haemorrhage, skull fracture, head injury, assault.

• Whether the accused was guilty of murder
• Whether the accused was guilty of culpable homicide
• What was the appropriate sentence for culpable homicide in circumstances where the death was essentially accidental

The accused was found not guilty of murder but guilty of the lesser charge of culpable homicide. He was sentenced to 36 months imprisonment, with 18 months suspended for 5 years on condition he is not convicted of an offence of which violence is an element, and the remaining 18 months suspended on condition he performs 525 hours of community service at Mahatshula Primary School.

Where an accused person slaps a victim who then falls and fatally strikes their head, causing death, and the death is essentially accidental despite resulting from the accused's unlawful actions, the appropriate conviction is culpable homicide rather than murder. The law recognizes that unintended fatal consequences flowing from minor assaults should be treated as culpable homicide where there is no intention to kill or cause serious bodily harm.

The court observed that this was "an unfortunate state of affairs" where the deceased's death was accidental. The court's comments suggest sympathy for the accused's position given the tragic but unintended consequences of what began as a relatively minor altercation. The court's finding that there was "weighty mitigation" indicates its view that the circumstances warranted leniency in sentencing despite the fatal outcome.

This case illustrates the application of the doctrine of culpable homicide in Zimbabwean criminal law where death results accidentally from an unlawful act. It demonstrates the court's approach to sentencing in cases where there is significant mitigation, including the use of suspended sentences and community service as alternatives to immediate imprisonment. The case also shows the importance of the state making appropriate concessions where the evidence does not support a murder charge.