S v Hlambelo (HB 236 of 2020; HC CRB 100 of 2020) [2020] ZWBHC 236 (12 October 2020)

1 HB 236/20 HC (CRB) 100/20 THE STATE Versus WILLIAM HLAMBELO IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Ndlovu and Mr Bazwi HWANGE CIRCUIT COURT 7 and 12 OCTOBER 2020 Criminal trial Mr. B. Tshabalala, for the state Ms L. Mthombeni, for the accused DUBE-BANDA J: The accused is charged with the crime of murder as defined in section 47 of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It being alleged that on the 26 May 2019, at M. H. Bottle Store, Lonely Mine, Inyathi the accused unlawfully struck Hero Mkandla (deceased) with an axe on the head and once on the thigh, intending to kill him or realising that there is a real possibility that his conduct may cause the death but continued to engage in that conduct despite the risk or possibility. The accused pleaded not guilty to the charge. He was legally represented throughout the trial. The State tendered an outline of the state case. It shall not be necessary to repeat the entire contents of the state outline. It now forms part of the record. The accused tendered into the record an outline of his defence case. The State produced a confirmed warned and cautioned statement recorded by the police at ZRP Inyathi on 3rd January 2020. The statement was confirmed by a magistrate on the 4th March 2020. The statement reads: I deny the charge levelled against me of killing Hero Mnkandla because I am not the one who struck him with an axe. Hero Mnkandla and Nkanyiso Mpofu were refusing to leave the bar whilst I was telling them it was time to close. I tried to plead with them but they refused stating that the bar is not mine and the money they are spending at the M. H. is way too much,I even get paid with the one they spend at the bar. I advised that it was now late and everyone has left save for the two of them. I reminded Hero that he once requested to sleep inside the bar stating that he was very drunk the following morning he had stolen phones, money and beer. As I was still talking to them Hero took out some money and pressed the HB 236/20 HC (CRB) 100/20 slug I took the balls and threw them inside. Hero then dragged me by my trousers and took out a knife. When he tried to stab me I got hold of his hand and fell him down. Nkanyiso came armed with an axe when he tried to strike me he missed and hit a torch which was on the head and it fell down and there was darkness in the bar. Hero was still grabbing me by my trousers Nkanyiso tried to axe me I dodged by using Hero as my shield. I did not notice how many times he assaulted him because it was dark. The state tendered a post mortem report compiled by Dr Juana Rodriguez Gregori at United Bulawayo Hospitals on 17 September 2019. Following an examination of the remains of the deceased, the pathologist concluded that the cause of death was: 1. 2. 3. subdural haematoma skull bones fracture severe head trauma State case The state led oral testimony from two witnesses. The first to testify was Nkanyiso Mpofu. He resides at number 12 Fetkill Village 8, Lonely Mine, Inyathi. He knows the accused as a local, he usually sees him at the shops. The deceased was his friend. On the 26 May 2019, at around 1930 hours the witness and the deceased went to M. H. bar for a beer drink. At around 2100 hours the bar person closed the bar. She said those with drinks must finish their drinks and leave the bar. The witness was seated on top of the mini-soccer machine and the deceased was standing at the door. The patrons were using torches as a source of light. The accused entered the bar, looked at all directions as if he was looking for someone, produced an axe and struck the deceased on the head and thigh. Accused opened the door and left. Patrons left the bar running. The witness called out the deceased’s name several times but he did not respond. When he got closer to the deceased he noticed that he had a deep cut on the head that was bleeding. The witness tried to get help from the people who worked at the bar, he could not get any help. He later went home to inform his mother, and proceeded to inform the deceased’s grandparents. The deceased was ferried to hospital in Inyathi and later to Mplilo Hospital, Bulawayo. He was treated and discharged. The deceased later died on the 6 September 2019, at his rural home. The second to testify was Trust Jim Pandeni. He resides at his own homestead, Decide Village 1, Naleni, Inyathi. He knows both the accused and the deceased, they are local village HB 236/20 HC (CRB) 100/20 people. On the 26 May 2019, at around 2000 hours, the witness was at the M. H. Bar, where he was drinking beer. The deceased and his friend Nkanyiso Mpofu, entered the bar and started insulting patrons using vulgar language. The deceased drew an okapi knife from his pocket, and started to sharpen it on the floor. The deceased and his friend were lifting up the mini-soccer machine and hitting it on the floor. The witness left the bar as the environment was getting violent. He did not see the accused. The prosecutor sought admissions from the accused in terms of s 314 of the Criminal Procedure & Evidence Act [Chapter 9:07]. The accused admitted the evidence of certain witnesses as contained in the summary of the state case. That is, the evidence of Dr Gregori, who examined the remains of the deceased and recorded a post mortem report. The evidence of Nokuthaba Mpofu, the bar lady at MH Bottle store, the scene of the crime. According to her evidence, on the 26 May 2019, at around 2000 hours, she advised all patrons to leave the bar, because it was time to close. The patrons refused to move out. The deceased said she should not close the bar but let them continue drinking. She proceeded to close the door, switch off the radio and the lights and allowed those who needed to finish their drinks to do so. The following morning she learnt that there was violence at the bar and she observed blood stains on the veranda. The evidence of Constable Mushanyu, the investigating officer in this case was admitted in terms of section 314 of the Criminal Procedure and Evidence Act. He visited the scene of crime on the 30 May 2019. He interviewed the witness Nkanyiso Mpofu. He arrested the accused. The witness failed to recover the murder weapon, i.e. the axe. In June 2019, the witness visited the deceased at his home, and observed that he had a deep cut on the head and on the left thigh. The last to be admitted was the evidence of Sergeant Ndlovu, who recorded a warned and cautioned statement from the accused. This is the State case. Defence case The accused elected to give evidence under oath. He testified that he was 39 years old. He works at M. H. Bar. He is a general hand, and his duties entail, amongst others, the collection of empties and making sure that after work the doors of the bar are closed and secured. He knew the deceased during his lifetime. The police had told the bar personnel to close at 8 p.m. On the 26 May 2019, at 8 p. m. they decided to close the bar. The bar lady told the patrons that the bar was closed, and she asked those with unfinished drinks to finish and HB 236/20 HC (CRB) 100/20 leave the bar. She switched off the radio and the lights. She gave accused a hat with a head- torch. Most patrons complied and left the bar. Two patrons remained, i.e. the deceased and Nkanyiso Mpofu. The accused told the two to leave the bar. Nkanyiso Mpofu said to the accused that the “bar is not yours.” The deceased said they are spending a lot of money at the bar, the accused is paid from the money they spend in the bar. Accused reminded the deceased that previously the deceased said he was drunk and unable to go to his home, he was allowed to sleep in the bar for the night. He woke up at night and stole beer, phones and cash. The deceased proceeded to put some coins in the mini-soccer machine (slug) and the balls came out. The accused picked the balls and threw them back into the machine. While he was putting the balls back into the machine, t