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Mashudu Netsianda, Senior Court Reporter

A BOTSWANA-based man was recently sentenced to four years in jail for fatally assaulting his uncle for engaging in an adulterous affair with his wife.

Bernard Dube (41) had returned home at Siganda village, Inyathi in Matabeleland North from Botswana when he found his uncle, Mthandazo Sibanda (49) and his wife Ms Sister Nkala (33) coming out of his bedroom hut at night.

Dube, who was initially facing a murder charge, was convicted of a lesser charge of culpable homicide by Bulawayo High Court judge, Justice Martin Makonese.

He will serve an effective three years in jail after one year was suspended for five years on condition that he does not within that period commit a similar offence.

Justice Makonese said Dube caused the death of his uncle by inflicting serious injuries upon him. “The accused strangled the deceased, blocking the wind pipe and constricting his neck thereby negligently causing his death,” he said.

In passing the sentence, Justice Makonese said although Dube was reckless and negligent in his conduct, he was subjected to extreme provocation by his uncle. “The accused person had observed to his utter disgust that his uncle was having an affair with his wife, which really angered him. The deceased was aggressive despite the fact that he had invaded the accused person’s home and taken his wife,” he said.

Justice Makonese bemoaned an increase in the cases of murder emanating from violence, saying the courts have a duty to protect the sanctity of human life through passing custodial sentences. “It is often said a man’s home is his castle and any man whose wife is taken away in the manner described in this case would lose self-control. In assessing an appropriate sentence, this court notes that the accused is a first offender who has shown a certain measure of remorse. This court, however, must not lose sight of the fact that the victim’s family is equally affected by the permanent loss of support due to the accused’s conduct,” he said.

Justice Makonese said although Dube’s moral blameworthiness is not very high, the court will not trivialise the offence by passing a non-custodial sentence.

“A custodial sentence is called for. The sentence must reflect that the courts do not condone the loss of human life as they have a duty to protect its sanctity,” he said.

Prosecuting, Ms Memory Munsaka said on September 28 last year at around 8.40PM, Sibanda arrived at his nephew’s homestead and found Ms Nkala alone. The two agreed to go into one of the bedroom huts to have sex.

The deceased was armed with an adze.

“While the two lovers were in the hut having sex, they heard footsteps outside before they peeped through an opening on the door and spotted a person walking past the hut. The deceased advised Ms Nkala that he suspected it could be the police looking for him,” said Ms Munsaka.

The court heard that  Sibanda, who was carrying his adze and Ms Nkala went outside and they found Dube standing near the hut. “The deceased subsequently attacked the Dube who was standing near the hut. Dube and Sibanda wrestled until the accused person managed to disarm the deceased before he started kicking and punching him indiscriminately all over the body,” said Ms Munsaka.

The court heard that the accused person cut a tree branch from a nearby tree and continued to attack the deceased. Dube was restrained by a neighbour before they tied the deceased’s hands using a piece of wire and took him to the police station where they lied to the police that they had caught him stealing.

Sibanda was taken to Inyathi District Hospital where he died on admission. A report was made leading to Dube’s arrest. 

Mr Vuyile Mpofu of VJ Mpofu and Associates represented Dube. — @mashnets