A 36-YEAR-OLD deaf man from Eastview, Harare, who fatally struck his uncle with a wheel spanner after the latter discouraged his [deaf man] girlfriend from marrying him due to his hearing impairment, will perform 420 hours of community service.
Fanuel Masora was sentenced to 36 months in prison, wholly suspended on condition that he performs community service.
The High Court found him guilty of culpable homicide, not murder.
On January 5, 2014 in Eastview Phase 4, Masora struck his uncle, Magijo Masora, four times on the head with a 2,2kg wheel spanner, while the uncle was sleeping.
The post-mortem report established cause of death as polytrauma to the head and blunt force trauma.
Masora, who was being represented by Obey Shava, pleaded not guilty to murder.
He argued that because the Criminal Law (Codification and Reform) Act was not in sign language, it was not brought to his notice — nor to the deaf community’s — and, therefore, did not apply to him.
The court rejected his defence.
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He pleaded guilty to culpable homicide, arguing that his uncle provoked him to the point of losing self-control, heightened by his inability to hear or speak.
The court heard that a misunderstanding arose over Masora’s former girlfriend, whom he loved and hoped to marry.
On the afternoon before the killing, the three met to discuss the couple's challenges.
The uncle, who interpreted in sign language, spent more time speaking to the girl in Shona.
He told her that “the hearing and the deaf cannot be together”.
Masora felt excluded and suspected his uncle was attracted to his girlfriend.
That evening, after both had retired to bed, Masora got up, fetched the spanner and struck his uncle four times.
He then carried the body to an unfinished house 17 metres away and cleaned it of bloodstains.
A psychologist, professor Lincoln Hlatshwayo, testified that a deaf person’s conceptualisation of issues is limited due to communication gaps, adding that Masora — a Form 2 graduate — had the mental capacity of a Grade 3 or 4 learner.
High Court judge Justice Emilia Muchawa ruled that the accused had no intention to kill, but was provoked to sudden and total loss of self-control.
“Section 239 of the Criminal Law Code provides that provocation may be a partial defence to murder where a provoked person does or omits to do anything resulting in the death of a person shall be guilty of culpable homicide if, as a result of the provocation, he or she does not have the intention or realisation referred to in s47,” the judge said.
“Due to this the deceased, who uttered that ‘the hearing and the deaf cannot be together’, became the recipient of all the accumulated anger and frustration of the deceased’s entire life. He could not dissipate his anger through verbal arguments or shouting.
“The accused is found guilty of culpable homicide as defined in s49 of the Criminal Law Code.”
He was sentenced to three years imprisonment, with one year suspended on condition of good behaviour and two years suspended on condition he performs 420 hours of community service.
