Dou in trouble for killing vagrant intruder

THE Bulawayo High Court has jailed one of the two men who killed a man of no fixed abode who intruded into his house to an effective five years in jail while his accomplice was ordered to pay a fine of $300 or spend six months in jail.

The two, Thabani Magise (33) of Selbourne Park in Bulawayo represented by a lawyer Shepherd Chamunorwa and Mike Nyoni (29) of Selbourne Park represented by a lawyer Vivianah Chikomo were denying the charge of murder when they appeared before Bulawayo High Court Judge Justice Maxwell Takuva. But they admitted to a lesser charge of culpable homicide.

In mitigation for Magise, Chamunorwa said his client was emotional when he committed the offence after finding the yet to be identified man in his house and when he asked him what he was doing there he did not respond. He said the man was the aggressor leading to Magise beating him up. He also submitted that his client's actions might have been stimulated by the fact that he was drunk and could not be responsible for his actions.  He also submitted that his client was the first offender who pleaded guilty to causing the death of the now deceased and asked the court to give him a sentence of community service.

Chikomo for Nyoni submitted that her client did not have much contribution to the cause of the now deceased's death and he only hit him once with clinched first and the rest of the time he spent restraining Magise from further assaulting the now deceased. She said Nyoni's actions during the incident shows that he dissociated himself from the offence. Chikomo also submitted that Nyoni was a first offender who was admitting the culpable homicide charge and was a first offender. She asked the court to sentence him to pay a fine.

In sentencing Magise, Takuva said the court took consideration his mitigation factors and his plea of guilty to the charge.

"Your mitigation shows that you had contrition of what happened and you are a first offender who did not waste the court's time," said Takuva.

"You are 33 years old and the court took note that the now deceased had entered your house without your consent and that you committed the offence under the influence of alcohol. It has not been disputed that the deceased could have been the aggressor and that you reacted to that and assaulted the deceased."

Takuva said the defence lawyer had asked for a community service sentence but the court does not agree with such a sentence as even if the deceased was an intruder law does not allow people to take law into their hands. He said Magise could have been assisted by Nyoni to arrest the now deceased and took him to the police.

"What aggravates the offence is that culpable arising from violence is a serious crime. It is serious that it led to loss of human life. The courts have a duty to hold sanctity of life. We with the state that life was lost unnecessarily.  Accused's conduct was uncalled for in that a reasonable person could have taken him to the police. You had an opportunity to do so but did not instead you took justice into your own hands," said Takuva.

"Your defence had asked the court to give you a community service sentence. In our view that sentence is un-appropriate for this offence. It can trivialize this offence and will send wrong message that they can take law into their hands and go unpunished."

He then sentenced him to six years in jail and suspended one year for five years on condition of good behaviour.

Takuva also said the court considered that Nyoni pleaded guilty to the lesser charge of culpable homicide and that he did not use any weapon in attacking the now deceased. He also said the court considered that he later restrained his colleague from further assaulting the now deceased.

He then ordered him to pay $300 fine of go to jail for six months. He also sentenced to a wholly suspended six months jail on condition he does not commit any offence involving violence for the next five years.

Agreed facts between the two defence lawyers and the state represented by Shepherd Pedzisayi are that on June 3, 2012 at 9pm Magiye was watching soccer at a friend's home when he got message from his wife Simangaliso Ncube that there was an intruder at his house.

He went to the house in the company of Nyoni and they found the now deceased laying on a bed spread bed spread he had taken from one of the rooms.  When they asked him who he was, he did not respond and they pulled his legs and that is when the now deceased became violent prompting Nyoni to hit him with clinched fists.

Magiye then armed himself with a button stick and assaulted him on his back before he was restrained by Nyoni. After he was disarmed of the button stick Magiye reached out for an iron bar which he used to hit the now deceased once on the forehead before Nyoni restrained him and escorted the now deceased out of the house.

After that Nyoni left and went to his home and the now deceased later returned to Magiye's house. Magiye alerted his neighbour Washington Munyengeri before he further assaulted the now deceased with a button stick. The man was found dead the next day in Selbourne Park.

Doctor Sanganayi Pesanayi a pathologist who examined his body at the United Bulawayo Hospital indicated that died as a result of subarachnoid hemorrhage, blunt force trauma and assault.

The police have failed to get the relatives and identity of the man and no one has claimed him from the hospital mortuary.