The State v Major Makumbe

On 24 February 2016, the accused, a 16-year-old male juvenile, was playing football with the deceased, Freddy Dombo, at Gresham Primary School in Zvishavane. The deceased took the accused's pair of trousers and walked away, holding them as surety for his stockings he had previously given to the accused. When the accused requested the return of his trousers and the deceased refused, an altercation ensued. The accused first assaulted the deceased with open hands, followed by a fist fight. The deceased fell to the ground, and while on the ground, the accused kicked him once on the neck with a bare foot. The deceased became unconscious and later died on arrival at Zvishavane Hospital. A post mortem report by Dr Roberto Trecu found the cause of death to be cerebral oedema, subarachnoid haemorrhage and severe head trauma.

• Whether the accused intended to kill the deceased or realized there was a real risk that his conduct may cause death
• Whether the accused should be convicted of murder or culpable homicide
• What appropriate sentence should be imposed on a juvenile offender convicted of culpable homicide

The accused was found not guilty of murder but guilty of culpable homicide. He was sentenced to 4 years imprisonment, wholly suspended for 5 years on condition that he does not during that period commit any offence of which violence is an element for which upon conviction he is sentenced to imprisonment without the option of a fine.

Where a juvenile offender causes death through conduct attributable to immaturity and youthfulness rather than criminal intent, and where the agreed facts do not establish intention to kill or realization of the real risk of death, a conviction for culpable homicide rather than murder is appropriate. In sentencing juvenile offenders for culpable homicide, the court must prioritize reform and rehabilitation over punitive custody, particularly where the offender will carry the lifelong stigma of having caused a death and where a suspended sentence can serve as an effective deterrent while preserving the young person's prospects for rehabilitation.

The court observed that young people do engage in behaviour stemming from childishness and that ordinarily such conduct does not give rise to loss of life, making this death particularly unfortunate. The court commented that the accused would live with the stigma of having taken the life of a friend under tragic circumstances, and that this constitutes punishment in itself. The court further observed that resort to any form of violence to resolve differences does not pay, and this should serve as a lesson to the accused. The court noted that while it has a duty to uphold the sanctity of human life, the thrust in cases involving young offenders should be to reform them and retrieve what is left rather than destroying everything through incarceration.

This case demonstrates the Zimbabwean courts' approach to juvenile offenders in cases of unintentional homicide, emphasizing rehabilitation and reform over punitive measures. It illustrates the proper application of the distinction between murder and culpable homicide, particularly in cases involving youthful offenders where the death resulted from immaturity and lack of judgment rather than criminal intent. The case reinforces the principle that the criminal justice system should seek to reform young offenders rather than destroy their future prospects through incarceration for tragic accidents arising from childish behaviour.