The State v Qedamandla Mpala

On 26 May 2021, at around 2000 hours, the accused (aged 25), the deceased Ernest Ncube (aged 20), and one Thinkwell Ndlovu were on their way to Bubude Business Centre for a drink. Along the way, the accused accused the deceased of having stolen his cellphone the previous day. The deceased denied the allegations, which angered the accused. The accused took an okapi knife from his pocket and threatened to stab the deceased if he did not return his cellphone. He then took a silver rope from his pocket and tied the deceased's hands and legs, stripped him, causing him to fall to the ground on his back. The accused trampled on the deceased's stomach and chest with booted feet and assaulted him with switches all over the body. Despite the deceased screaming for help and Thinkwell Ndlovu trying to restrain the accused, when the rope loosened and the deceased ran away, the accused gave chase and struck him with the back part of an axe once on the back, causing him to fall. The deceased staggered home. On 27 May 2021, the deceased was taken to Bubude Clinic and referred to Tsholotsho Hospital but did not go due to financial constraints. His condition deteriorated and he died the same night at home. The post-mortem report listed the cause of death as traumatic shock and assault, with injuries including echysmosis in left temporal region and right side of thorax, contused heart surface, and lacerations to the right lung.

• Whether the accused's conduct constituted murder in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act Chapter 9:23
• Whether the accused's conduct constituted culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act Chapter 9:23
• Whether the accused acted with the requisite intention for murder or negligently caused the death of the deceased
• What is an appropriate sentence for culpable homicide in the circumstances of this case

The accused was found not guilty of murder but guilty of the lesser crime of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act Chapter 9:23. The accused was sentenced to 10 years imprisonment, of which 2 years imprisonment was suspended for 5 years on condition that the accused does not within that period commit an offence of which assault or physical violence on the person of another is an element and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. Effective sentence: 8 years imprisonment.

Where an accused's conduct in assaulting a victim results in death, and it was objectively foreseeable or within the range of ordinary human experience that such actions would lead to death, but there is doubt as to whether the accused had the requisite intention for murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act, the accused must be given the benefit of doubt and convicted of culpable homicide under section 49. A person acts negligently and is guilty of culpable homicide when they negligently fail to realize that death may result from their conduct, or realizing that death may result from their conduct, negligently fail to guard against that possibility. In borderline cases between murder with constructive intent and culpable homicide, the court must give the accused the benefit of doubt and convict on the lesser charge.

The court emphasized that society frowns at the taking of another human being's life and that courts must send a loud and clear message that the killing of a fellow human being will not be tolerated. The court noted the importance of emphasizing the sanctity of human life in sentencing. The court observed that the assault in this case was brutal, involving tying the victim, trampling him with booted feet, beating him with switches, and striking him with an axe when he tried to escape. The court noted that even when the deceased screamed for help and another person tried to restrain the accused, the accused persisted in the assault and gave chase when the victim escaped. These observations underscore the seriousness with which the court viewed the accused's conduct, even though it ultimately convicted him of the lesser offence of culpable homicide rather than murder.

This case illustrates the application of the distinction between murder with constructive intent under section 47(1)(b) and culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act in Zimbabwe. It demonstrates how courts approach borderline cases where the conduct could constitute either murder or culpable homicide, and how the benefit of doubt is applied in favor of the accused in such circumstances. The case also provides guidance on sentencing for culpable homicide in cases involving brutal assaults, emphasizing the sanctity of human life and the need for deterrent sentences while balancing mitigating personal circumstances. The case shows the court's approach to accepting limited pleas and the State's concession to lesser charges in appropriate circumstances.