S v Ndlovu (HB 242 of 2020; HC CRB 102 of 2020) [2020] ZWBHC 242 (5 October 2020)

1 HB 242/20 HC (CRB) 102/20 THE STATE1 Versus TRUST NDLOVU IN THE HIGH COURT OF ZIMBABWE DUBE-BANDA J with Assessors Mr Ndlovu and Mr Bazwi HWANGE CIRCUIT COURT 5 OCTOBER 2020 Criminal Trial Mrs M. Chedafor the state Miss J. Change, for the accused DUBE-BANDAJ: The accused is charged with the crime of murder as defined in section 47 of the Criminal Law (Codification and Reform) Chapter 9:23. It is alleged that on the 20th January 2020 at Tshongokwe Business Centre, Chief Mabhikwa, Jotsholo, the accused unlawfully struck Themba Ndlovu (deceased) once on the head and once on the face with an axe intending to kill him or realising that there was a real risk and possibility that his conduct may cause his death but continued to engage in that conduct despite the risk or possibility. The accused denies the allegations and raises the defence of provocation. 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. It is not disputed that the accused and the deceased at a gambling school. The accused discovered that he had lost his wallet and suspected that the deceased had stolen it. He struck the deceased with an axe once on the back of the head and once on the face. The deceased died on the spot. The state produced a confirmed warned and cautioned statement recorded by the police at ZRP Jotsholo on 20 January 2020. The statement was confirmed by a magistrate on the 4th January 2020. The statement reads: I admit the charge of killing Themba Ndlovu on the 20th January 2020 which is preferred against me. I struck the deceased person with the back side of an axe upon suspicion that he had stolen HB 242/20 HC (CRB) 102/20 money from my wallet while I was asleep at gambling school. On asking him about it he denied and instead he became aggressive bracing for a fight. At the time I noticed that, I was frightened for he was known in the village to be bullying other villages. I therefore decided to attack him first for fear he would hurt me if given a chance to attack first. It was not my intention to kill the deceased person but meant to act in self-defence. The state tendered a post mortem report compiled by Dr Juana Rodriguez Gregori at United Bulawayo Hospitals on 21 January 2020. Following an examination of the remains of the deceased, the pathologist concluded that the cause of death was: 1. subdural haematoma 2. skull bones fracture 3. head trauma An axe recovered at the scene was produced by the state as an exhibit. Its measurements are as follows: length of handle 9.65 cm; circumference of handle 9.5 cm; length of axe blade 8 cm; width of axe blade 12 cm. State case The state led oral testimony from three witnesses. The first to testify was Sibonginkosi Sibanda. He resides at his own homestead, Buyu Village, Chief Mabhikwa, Jotsholo. He is known to the accused. He knew the deceased during his lifetime. On the 20th January 2020, at around 0600 hours, this witness was at Tshongokwe Business Centre waiting for transport to go to Jotsholo Business Centre. He saw the deceased sitting by the side of the road facing MK General Dealer Shop recharging his cell phone. This witness saw the accused taking an axe from a scotch cart belonging to Nqobile Nkomazana. The accused crossed the road to where the deceased was, and struck him once on the back of the head. The deceased fell down facing upwards. The witness heard the accused say “you take my money I worked hard for.” The witness told the accused that “you will kill someone.” The accused struck the deceased once again on the face with the axe. The witness went to the scene and observed the deceased body’s lying in a pool of blood. The deceased was bleeding in the mouth, nose and ears. He had a wound at the back of the head and a cut on the face, on the left chin. The witness checked and saw that the deceased had died. After the assault on the deceased the accused tried to flee, he was however stopped HB 242/20 HC (CRB) 102/20 by Nqobile Nkomazana who picked stones and warned him not to flee. The accused was then tied to a mopane tree awaiting the arrival of the police. The next witness for the state was Nqobile Nkomazana. He knew both the accused and the deceased as they were villagers in Jotsholo. On the 20 January 2020, at around 0600 hours this witness was at Tshongokwe Business Centre. He was sleeping in a scotch cart. He was awakened by noise from a group of people that had gathered across the road shouting “you have killed someone.” The witness saw the accused striking the now deceased once on the left chin with an axe. The deceased was lying on the ground facing upwards. The accused left the axe next to the deceased. The witness observed the deceased lying in a pool of blood, bleeding from the mouth, nose and ears. He had a wound on the back of the head and a cut on the face on the left chin. The axe that was used by the accused belonged to this witness. The accused attempted to flee, the witness picked up stones and threatened to stone him if he ran away. The witness apprehended the accused. The last witness for the state was Sergeant Mutanga. He is a member of the Zimbabwe Republic Police stationed at Jotsholo. He did not know the accused and the deceased. On the 20 January, he attended a murder scene accompanied by other police officers. This witness examined the body of the deceased and observed injuries at the back of the head and a cut on the face. The deceased was bleeding from the mouth, nose and ears. The witness searched the pockets of the deceased’s clothes and recovered a cellphone and a brown wallet containing 6 bond notes. Inside the wallet there was an I. D. card for the deceased. He had a box of matches and Econet recharge cards. We have had the opportunity of watching all the state witnesses when they testified in this court. All the state witnesses gave their evidence in a calm, sequential and relaxed manner. We distinctly formed an impression that they were truthful, honest and reliable as witnesses in this court. We can say here without any shadow of doubt that the state witnesses did not embellish their versions to disadvantage the accused. We have no reason to reject or disregard their testimonies. Defence case The accused elected to give evidence under oath. He testified that he was 30 years old. Prior to his arrest, he was employed in Botswana. He knew the deceased during his life-time. HB 242/20 HC (CRB) 102/20 The deceased was a problematic person, he was a thief, and he would assault people. The accused did not like to be associated with such a person. On the date before the incident, he accompanied his father and his wife to get transport to travel to his wife’s homestead. The purpose of their travel was to pay a bride-price (lobola) to his wife’s family. At the shopping centre, he drank alcohol until 1 a. m. He slept at the shopping centre hoping to get transport home in Nqobile Nkomazana’s scotch cart. When he woke up in the morning he discovered that his wallet was missing. It also turned out that the wallet of accused’s friend, one ThandolwenkosiKhumalo, was also missing. He made inquiries, and was told that his wallet was stolen by the now deceased. His wallet had 800 Pula and USD$20.00. He approached the deceased who became very arrogant and threatening. He moved to Nqobile Nkomazana’s scotch cart, picked up an axe, walked across the road, where the deceased was, him on the back of the head and on the chin with the axe. The deceased was not aware that he was about to be hit with an axe. He hit the deceased because he was afraid of him. There are instances where the accused was untruthful, unreliable and untrustworthy as a witness. For instance when he said he wanted to strike the deceased and make him to fall