HIGH Court judge Justice Ngoni Nduna has sentenced a Bulawayo tout to 26 years imprisonment for fatally assaulting his wife on May 3, 2023.
Jabulani Phakathi, who pleaded not guilty to the murder charge, was convicted after a full trial.
According to court papers, on the said date at around 9pm, there was a skirmish between Phakathi and his wife leading to the woman suffering fatal injuries that claimed her life the following day.
A post-mortem report concluded that she died from injuries suffered during the assault.
A witness told the court that she had been approached by the deceased, who bade her farewell, indicating that they had found another house. She told the court that Phakathi was entering and exiting the house on the fateful night and she assumed that the couple was packing its belongings.
The witness said she became suspicious as the deceased had indicated that Phakathi was in the habit of assaulting her.
The witness said she opened a window and heard them mumbling, but could not figure out what they were talking about.
She said Phakathi assaulted the woman before she called for help.
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The witness also told the court that she tried to seek assistance but could not find any male resident to assist and when she returned, the woman had collapsed while Phakathi had disappeared.
In defence, Phakathi said when he came home he saw a man leaving the house.
Phakathi said the deceased slapped him before she ran out of the house. He said he struck his wife with a fist, and she hit her head against a wall.
Phakathi added that the woman also hit her head against a water tap.
He also raised the defence of provocation.
However, Justice Nduna said provocation was no basis for defence on a charge of murder.
“The law is very clear that if the accused was indeed provoked, the court may return a verdict of guilty to culpable homicide. For the charge of murder to be reduced to culpable homicide based on provocation, the court must make a finding that the accused did not have the intention to do what constitutes the offence as a result of the provocation; that is, he would have lost all the mechanisms of self-control.
“The court must further determine whether or not the provocation was enough to make him lose self-control. Otherwise, the accused would not be entitled to a finding that he was indeed provoked,” the judge said.
He said Phakathi also raised the defence of intoxication, but Justice Nduna said there were two forms of intoxication: voluntary and involuntary.
“He gave a detailed outline of his conduct on the day in question. On the day he was arrested, he gave his warned and cautioned statement very, very well. The finding that is made is that the accused may have been slightly drunk and that is different from the intoxication he wants us to adopt.
“The defences raised fail. The State case remains stacked against him. He committed a very serious offence and he is accordingly found guilty of murder with actual intent," the judge ruled.
The judge said the accused was 32 years old and the only surviving parent of a three-month-old baby. He has two children from a previous marriage.
“Murder committed by a man on a woman should not be treated lightly. It becomes worse where the perpetrator, as in this instance, was the deceased’s husband, who had the duty and the responsibility to protect her and not to harm her.
“It is killings like the one committed by the accused which necessitate the imposition of sentences to serve not only as a deterrent but also to have a retributive effect. Violence against women is rife and the community expects the courts to protect women against the commission of such crimes.”
He said Phakathi’s crime of assaulting his wife to death breached the provisions of the Domestic Violence Act.
“It, therefore, goes without saying that your conduct is very deplorable. A severe penalty is called for in the instant case. The accused is, therefore, sentenced to 26 years imprisonment,” Justice Nduna ruled.
