S v Ndlovu & Ors (HB 39 of 2017; HC CRB 6 of 2017; XREF HC MZILIKAZI CR 29 of 2007) [2017] ZWBHC 39 (7 February 2017)

1 HB 39-17 HC (CRB) 6-9-17 XREF HC MZILIKAZI CR 29-06-07 THE STATE versus DUKE NDLOVU and LIONEL BARKE and LWAZILWENKOSI NDLOVU and ROCHIE KOLTA HIGH COURT OF ZIMBABWE MATHONSI J BULAWAYO 7 FEBRUARY 2017 Criminal Trial T Hove for the state J Mhlanga for the 1st accused Ms S Munherendi for the 2nd accused Ms P Mvundla for the 3rd accused Ms V Chikomo for the 4th accused MATHONSI J: The accused persons are jointly charged with murder in contravention of s47 (1) of the Criminal Law Code [Chapter 9:23] it being alleged that on 1 June 2007 at No 33 Aloe Crescent Thorngrove Bulawayo they each or one or more of them wrongfully, unlawfully and intentionally killed Raymond Kasawaya, a male adult, who at the time of his death was aged 32. All the accused persons have pleaded not guilty to the charge but accused 2, 3 and 4 have tendered a limited plea of guilty to the lessor offence of assault. The state has accepted the limited pleas of the three accused persons. Following its acceptance of the limited plea of accused two, three, and four, the state applied for a separation of trials in order to proceed to trial in respect of only accused one and to proceed on agreed facts in respect of the former which application we granted. According to the statement of agreed facts filed of record, accused two was aged 21, accused three, 18 and accused four aged 28 at the time of the commission of the offence. They HB 39-17 HC (CRB) 6-9-17 XREF HC MZILIKAZI CR 29-06-07 were at a shebeen located at No 33 Aloe Crescent Thorngrove Bulawayo together with the deceased on the night in question and were all drinking alcohol. The owner of the place, Catherine Souza approached accused one, two and three whilst they were sitting and drinking in the verandah complaining that the deceased was refusing to pay for the beer he had consumed. Accused one, two and three confronted the deceased who was in the kitchen and several patrons also followed them to the kitchen. Soon the confrontation translated into a fist fight which was joined by accused four and other patrons. Accused two slapped the deceased with open hands on the face. Accused three assaulted the deceased with fists while accused four slapped the deceased three times on the face with open hands. Unbeknown to accused two, three and four, accused one used a knife to stab the deceased once in the abdomen which conduct the three accused persons dissociated themselves from. In fact accused four assisted the deceased accompanying him to his place of residence together with the deceased’s girlfriend Ntando Moyo and two others. The deceased later died on as a result of a stab wound on the abdomen, perforation of the bowl and peritonitis, that is an inflammation of the walls of the abdominal cavity. To the extent that it was unknown to the three accused persons that Duke Ndlovu was armed and that he had, in the melee, used a knife to stab the deceased on the abdomen, and to the extent that the deceased died as a result of that stab wound and nothing else, we are of the view that the concession by the state has been properly made. There is no way the conduct of Duke Ndlovu could be imputed on the three and they cannot be said to be either co-perpetrators, accomplices or accessories in the stabbing. Accordingly, accused two, three and four are hereby found not guilty of murder but guilty of assault. Reasons for sentence In considering an appropriate sentence we have taken into account the following personal circumstances of the three accused persons. At the time of the offence Lionel Barke was aged 21. He is now aged 31 because there has been a delay of 10 years in bringing the accused persons to trial. Since then accused one has managed to father two children, one of whom is 2 HB 39-17 HC (CRB) 6-9-17 XREF HC MZILIKAZI CR 29-06-07 years old and another who is 7 months old, although he is not married. He is unemployed and survives on odd jobs. Accused three was 18 years old at the time but is now the father of an 8 year old girl who is in his custody. He is self-employed as a construction worker. He had to relocate from his home to live in Luveve for a period of 4 years as the locals blamed him for the killing of the deceased. Accused four was 28 years at the time and is now 38 years old, married with three children. He survives on catering and is now the chairperson of the residence association. While the conduct of accused two and three could be down to immaturity or youthfulness, accused four was a mature person who was expected to have exercised self-restraint and to behave sensibly in the circumstances. To his credit though, he was able to show contrition by assisting the deceased and escorting him to his home after the assault. We accept that the assault took place at a shebeen when all the accused persons had consumed alcohol which could have blurred their sense of judgment. But the consumption of alcohol should not be used as an excuse for violent behaviour. There was no reason whatsoever for assaulting the deceased the way they did merely because a shebeen queen had said so. We also accept that there has been a 10 year delay in bringing the matter to court thereby subjecting the accused persons to trauma. The accused persons subjected the deceased to a gang attack which was dangerous indeed. In fact they created a confused situation which enabled someone to use a knife to stab the deceased unnoticed. Young people should desist from frequenting shebeens and taking large amounts of alcohol which numb their senses thereby leaving them vulnerable to the machinations of illegal operators like shebeen queens who would readily incite them to commit offences on their behalf. Taking into account all the relevant facts, the three accused persons are sentenced as follows: Each accused person shall pay a fine of $400-00 or in default of payment 6 months imprisonment. In addition each accused person is sentenced to 6 months imprisonment which is wholly suspended for 3 years on condition they do not during that period commit any offence HB 39-17 HC (CRB) 6-9-17 XREF HC MZILIKAZI CR 29-06-07 involving violence for which upon conviction they are sentenced to imprisonment without the option of a fine. Accused two is given up to close of business on 21 February 2017 to pay the fine of $400-00 imposed. In respect of accused one, he was originally jointly charged with three other people of murder in contravention of s47 (1) of the Criminal Law Code [Chapter 9:23] it being alleged that on 1 June 2007 at 33 Aloe Crescent, Thorngrove, Bulawayo they unlawfully and intentionally killed Raymond Kasawaya, a male adult who was aged 32 at the time. Following the state’s acceptance of the limited plea of the other accused persons, namely Lionel Barke, Lwazilwenkosi Ndlovu and Rochie Kolta the state applied for a separation of trials in order to try the present accused person separately. We granted the application and as such the accused one was subjected to a full trial on his own. He pleaded not guilty to the charge of murder and stated in his defence outline that he was 29 years at the material time and not 39 as alleged by the state. He knew the deceased as they resided in the same neighbourhood and there was no bad blood between them. On the fateful night he was at the shebeen drinking beer with his friends Lewis Granger, David Adams and Lionel. In fact he had been drinking alcohol of varying types ranging from clear beer, to whiskey and all the way to opaque beer nonstop for a couple of days. As they were drinking the shebeen operator came out of the house to advise them that the deceased was refusing to pay for beer he had consumed. He says himself and other patrons decided to get inside the house to investigate only for him to discover that the person who had been refusing to pay was someone that he knew. When he advised the deceased to settle his bill, the deceased informed him that he did not have money. He suggested to the deceased that he should