The State v Mthokozisi Hadebe

The accused, from Makhala Line, Lubimbi Village, Chief Gampu, Tsholotsho, was the father of the deceased, an 8-year-old girl. On 19 June 2021, the deceased and her siblings (aged 10, 4 and 3 years) followed their mother to visit their uncle without the accused's permission. They returned the following day without their mother. On his return home at 20:00 hours, the accused, who was drunk, woke up the deceased and her siblings. He proceeded to assault them on their faces several times with open hands. The accused had a misunderstanding with his wife. He then lifted up the deceased by her right leg and right hand and threw her head-long onto the mud floor. The deceased sustained a swollen forehead and lost consciousness. The accused attempted to resuscitate her but failed. She died. The post mortem report by Dr Juana Rodriguez Gregori showed the cause of death as: (1) spinal shock; (2) fracture of cervical vertebra; (3) assault. There was a fracture of the 2nd cervical vertebra and abnormal mobility of the neck.

• Whether the accused was guilty of murder
• Whether the accused possessed the requisite mens rea for murder
• Whether the accused was guilty of the lesser charge of culpable homicide
• What constitutes appropriate sentencing for culpable homicide involving a child victim
• Application of children's constitutional rights under section 81 of the Zimbabwe Constitution

The accused was sentenced to 8 years imprisonment, of which 2 years imprisonment was suspended on condition that the accused does not within that period commit an offence involving violence and for which upon conviction the accused is sentenced to a term of imprisonment without the option of a fine. The effective sentence was 6 years imprisonment.

For a conviction of culpable homicide (as opposed to murder), the accused must lack the requisite mens rea to bring about the death of the deceased, even where the accused caused fatal injuries through reckless and brutal conduct. Where an accused person, even while intoxicated, assaults a defenseless child in a brutal manner causing death, and acts recklessly without the intent to kill, they may be convicted of culpable homicide. In sentencing for culpable homicide involving child victims, courts must give effect to the constitutional protection of children under section 81(1)(e) of the Constitution, which protects children from maltreatment, neglect or abuse. A deterrent sentence is appropriate where the accused acted cruelly and recklessly in causing the death of a child, particularly where the accused was the child's parent and the child was defenseless.

Makonese J observed that the facts of the matter made "sad reading" and brought "to the fore the abuse of children at the hands of their parents." The court commented that every child expects protection from their parents, and parents are expected to guard against any form of abuse against their children or by any other person. The court noted that children are entitled to adequate protection by the court, in particular by the High Court as the upper guardian. The court also observed that despite intoxication, the accused ought to have exercised restraint and self-control, as the defenseless children were at his mercy and unable to defend themselves. These observations emphasize the special duty of care parents owe to their children and the court's protective role.

This case is significant in Zimbabwean jurisprudence as it demonstrates the application of constitutional protections for children under section 81 of the Zimbabwe Constitution Amendment No. 20, 2013. It establishes the court's approach to cases involving fatal child abuse by parents, emphasizing that children are entitled to protection from maltreatment, neglect and abuse, particularly from those who are expected to protect them. The case reinforces that parents cannot use intoxication as an excuse for brutal violence against their children, and that deterrent sentences are necessary in cases of culpable homicide involving child victims where the accused acted recklessly and cruelly. It also affirms the role of the High Court as upper guardian of children in Zimbabwe.