S v MASIWA 1992 (2) ZLR 7 (S)

Flynote

Criminal procedure (sentence) — culpable homicide — victim brutally beaten to death at election time because had made derogatory remarks about the government — 7 years' imprisonment appropriate

Headnote

The deceased at election time had made derogatory remarks about the then Prime Minister and the Government. In order to punish him for this, the appellant and four other men had brutally beaten the deceased for several hours with fists, a stick and a fan belt. The deceased was tied to a pole during most of the time that the assault was taking place. The deceased was beaten until he lost consciousness and appeared to have died. The body was then stripped and buried, and his clothes and identity card burned.

The appellant had two previous convictions, one for assault with intent to dogrievous bodily harm.

In upholding the seven-year term of imprisonment imposed upon the appellant by the trial magistrate, the court pointed out that the appellant's own counsel had called the attack a murderous assault and the magistrate, after noting that the appellant was lucky that the State had levelled a charge of culpable homicide and not murder against the accused, had convicted him of culpable homicide and had referred the case to the Attorney-General for transfer to the High Court for sentence, but the Attorney-General had declined to transfer it. The sentence of seven years' imprisonment was the maximum sentence which the magistrate could impose within his sentencing jurisdiction.