Bongani Ndlovu, Chronicle Reporter
A 93-year-old man from Bulawayo’s Makokoba suburb who was found guilty of attempted murder after he used a knobkerrie to attack and broke his tenant’s arm, escaped jail by a whisker after the court exercised leniency due to his advanced age and sentenced him to just two minutes imprisonment.
Thomas Ndiweni who was incensed by his tenant Mr Steven Nyathi (57)’s failure to pay rentals, hit him with a knobkerrie twice on the head and once on the left arm.
Ndiweni was convicted on his own plea by Tredgold magistrate, Mrs Jesse Kufa last week.
He however, through his lawyer Mr Simbarashe Innocent Madzivire from Tanaka Law Chambers pleaded with the court to be lenient given that he was a first offender and that he was old.
Mr Madzivire said Ndiweni was of Nguni origin and did not carry the knobkerrie to beat Nyathi but it was part of his culture.
Mrs Kufa said throwing Ndiweni in jail was like sentencing him to death due to his advanced age.
“The accused pleaded guilty and looks an elderly person beyond the mark of 90 years. He is however, facing a serious offence, which warrants a custodial sentence but given his advanced age the court submits that such a sentence will not meet the justice of the case.
One needs to pass a sentence that suits the accused and the offence he is facing,” she said. Mrs Kufa said sending Ndiweni to prison was tantamount to imposing a death sentence. She said the accused was not just old but also frail.
She ruled that Ndiweni would serve his sentence from the moment she finished announcing the sentence and the time the court rises which is a sentence whereby the Judge/Magistrate deems that attendance at court is sufficient punishment.
“There is need to take into account his strong mitigatory factors. This court will take guidance for the sentencing approach adopted in the case of State Vs Dolphin Matsumbane who was facing a murder case, High Court of 2022.
The presiding judge in the case Justice Mawanza noted that recourse should be mindful to Section 336 of the Criminal Procedure and Evidence Act that a fine is appropriate sentence that will meet justice of the case,” she said.
Mrs Kufa said it was improper to either impose a wholly suspended sentence or to postpone the passing of the sentence. She said the other options like community service were clearly unsuitable for the offence.
“The court submits that the same applies in this case. This court also submits that a non-custodial sentence is in order. The sentence, which is deemed to be appropriate in the circumstances is on the basis of 336, 1b of the Criminal Procedure and Evidence Act, accordingly the accused is sentenced as follows: to remain in custody until the rising of the court,” said Magistrate Kufa as the court rose about two minutes later.
When the news crew visited Ndiweni’s house in Makokoba yesterday, it found Mr Nyathi who was still nursing his injury.
He said as a result of the beating he could not fend for himself as he is a push cart operator.
“This man has injured me so much that I cannot do anything for myself. I want this man to help me. I have a young son and I don’t know how I will be able to support him,” said Mr Nyathi.
“I’m self-employed and I haven’t done anything ever since the incident. My left arm was in a plaster.”
He said if Ndiweni, who was said to be out of town, had a problem with him, he should have reported him to the police instead of attacking him.
– Follow on Twitter @bonganinkunzi
Article Source: The Chronicle