S V Ndlovu (83 of 2024) [2024] ZWBHC 83 (30 May 2024)

1 HB 83/24 HCBCR 2016/24 THE STATE Versus BAMBANANI NDLOVU IN THE HIGH COURT OF ZIMBABWE KABASA J with Assessors Mr Damba and Mr Mabandla BULAWAYO 30 MAY 2024 Criminal trial D. E. Kanengoni, for the state A. Dube with A. Kanda, for the accused KABASA J: The accused appeared before us on a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. He pleaded not guilty to the charge. The state alleges that on 20 August 2023 at around 2300 hours the accused arrived home and found the now deceased lying in bed with their 2 children, aged 5 and 2. An altercation ensued after the deceased wanted to know why the accused had come home late. The accused proceeded to assault the now deceased with booted feet and a knobkerrie before strangling her leading to her death. The accused subsequently left the area and was eventually arrested on 30 August 2023. In his defence the accused did not deny strangling the now deceased. He however explained that after he arrived home on the night in question an altercation ensued whereupon the now deceased grabbed his testicles. He grabbed her by the throat in a bid to loosen her grip. He had no intention to kill her and so entreated the court to convict him of culpable homicide. To prove its case the state produced into evidence the post-mortem report compiled by doctor Acosta. The doctor concluded that the cause of death was:- Mechanic asphyxia HB 83/24 HCBCR 2016/24 Neck vessels and trachea constriction Strangulation The doctor also observed the following marks of violence:- neck bone groove, line, suprahyold, ascending oblique. Hemorrhagic trachea hyoid bone fracture, hemorrhagic infiltrate in the neck muscles. Congestion and tadieu spots in the lungs and pleura, hemorrhagic tongue and mouth and severe conjunctional injection. The accused’s confirmed warned and cautioned statement recorded on 31 August 2023 was also produced in evidence. In it he said:- “My name is Bambanani Ndlovu. I reside at Sibhula. I admit to the allegations of killing the now deceased. I got to the homestead during the night at around 11 p.m. and my wife, Happiness Ngwenya asked me where I was coming from and I responded that I was coming from my parents’ homestead. She said that I was telling lies. She then got hold of my testicles pulling me. I got hold of her neck and strangled her whilst trying to defend myself. It was an accident since I had no intention of killing her. I am sorry.” The evidence of six witnesses was subsequently admitted in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07. These witnesses are:- Monica Ndlovu Takudzwa Kasvau Tawanda Madzivire Zondiwe Bhebhe Detective Constable Moyo and Doctor Maibelys Gavila Acosta. Of these 6 witnesses, the only evidence that was relevant to the events of 20 August 2023 was that of Monica Ndlovu, accused’s mother. The accused called her to his home on the 21st August 2023 around 1700 hours and she proceeded to the couple’s bedroom whilst inquiring on the whereabouts of the now deceased who she subsequently found lying on the floor, face down with her left arm stretched out. She was not showing any signs of life and HB 83/24 HCBCR 2016/24 on asking the accused what had happened he said the now deceased had complained of stomach pains and had gone to seek help from a prophet. He had also left for work. Evidence was then led from the accused’s step-daughter, Kwandile Moyo. The gist of her testimony was that she was sleeping on the floor with her mother (the now deceased) and her young brother. The accused arrived home and shouted at her mother. He thereafter picked a knobkerrie and struck her on the knee. He proceeded to strangle her as he did so she was waving her hands in the air as she struggled. She did not wake up thereafter and the accused poured water on her to no avail. This witness gave her evidence very well. Listening to her we got the distinct impression that she was merely relating what she knew to have happened. The criticism by defence counsel regarding the fact that she said the accused mopped blood from the floor and that under cross-examination she had said a knife was used to assault the now deceased did not dent the overall credibility of this witness. The post mortem referred to haemorrhagic tongue and mouth making it possible that the deceased may have spit out some blood. The young child was not asked to clarify on the aspect of the knife but her evidence was very clear that a knobkerrie was used to assault her mother. The accused confirmed pouring water on the deceased and that she did not wake up. He confirmed that the 4 of them, that is him, the now deceased, the witness and her young brother used to sleep in the same room. This confirmation showed that this child, young as she is, remembered the events of the night in question. The now deceased died as a result of manual strangulation and this child testified to that. It can therefore not be said she was fantasizing. In S v Ncube 2014 (2) ZLR 297 (H) TAKUVA J set out the dangers inherent in children’s testimony and cited S v Sibanda S-55-94 a case in which the dangers were enumerated. These are:- a) b) children’s memories are unreliable, particularly for detail. children are egocentric and not likely to consider the effect of their statements on others particularly school children; c) children are highly suggestible HB 83/24 HCBCR 2016/24 d) e) f) children have difficulty in distinguishing fact from fantasy children make false allegations, particularly of sexual assault and children do not understand the duty to tell the truth. We have already shown that this witness’s memory was good. The confirmation of part of the events of that night by the accused speaks to the reliability of the witness’s memory. The strangulation of a human being is not something that a child could possibly fantasize about. It is not something that a child is exposed to in her daily life for her to fantasize about such a horrific occurrence. This was a 5 year old child who was staying in the rural areas. There is no suggestion that she could have watched horror movies and so failed to differentiate between reality and fiction. In any event such strangulation was confirmed by the accused and also the post mortem report. In S v Musasa 2002 (1) ZLR 280 (H) the court had this to say:- “Psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrence but that their fantasies and play are characterized by their daily experiences.” Whilst there is need for the court to exercise caution, the exercise of caution must never be allowed to displace the exercise of common sense. The strangulation occurred and there is evidence outside what the child had to say. The incident occurred around 2300 hours, barely an hour before midnight. It is therefore not to be doubted that the witness, her mother and her young brother were already sleeping. We must say this witness’s innocence was disarming. She recalled that her father had come from a beer drink and he first shouted at her mother. The accused confirmed he had been drinking although he was not drunk. It was clear this child’s intelligence is above average. She knew her father was in prison and the reason why he was in prison. This was not evidence which was rehearsed. We were satisfied she was a credible witness whose evidence could be safely relied on. HB 83/24 HCBCR 2016/24 In saying so we did not lose sight of the accused’s story. In R v Difford 1937 AD 370 the court said the accused need not convince the court as to the truthfulness of his story. Whatever explanation he gives no matter how improbable it may be, the court cannot dismiss it unless it has been shown to be not only improbable but beyond doubt false. In his defence outline the accused painted a picture of one who was trying to defend himself. In his warned and cautioned statement he said the same