S v Ngulube (HB 55 of 2017; HC CRB 40 of 2017; XREF FORT RIXON CR 40 of 2016) [2017] ZWBHC 55 (9 March 2017)

1 HB 55-17 HC (CRB) 40-17 XREF FORT RIXON CR 40-05-16 THE STATE versus HLONIPHANI NGULUBE HIGH COURT OF ZIMBABWE MATHONSI J BULAWAYO 9 MARCH 2017 Criminal Trial K Ndlovu for the state V J Mpofu for the accused person MATHONSI J: The accused person, a gold panner residing at his own homestead at Altyre Farm, Fort Rixon, was 35 years old at the material time when the 73 year old Moses Maduma met his painful death on 18 May 2016 while he was at his own homestead in the same area of Fort Rixon, the victim of a savage machete attack with blows directed mainly to the head. The accused person has now appeared before us charged with the deceased’s murder in contravention of s47 (1) of the Penal Code [Chapter 9:23] and kidnapping in contravention of s93 (1)(a) of the same code. He has pleaded not guilty to both charges. The state alleges that the accused was pursuing one Petronella Mapema Ndlovu, a former girlfriend of his, who had terminated their relationship and was finding her way to her sister’s place when she decided to enter the deceased’s homestead asking for water to drink. It was while Petronella was drinking water which had been offered to her by the deceased that the accused arrived wielding an axe, a log and carrying a piece of barbed wire. As he tried to attack Petronella, the elderly deceased tried to restrain the accused by standing in between them. It was then that the accused vented his anger on him fatally striking him with an axe. He allegedly tied Petronella’s hands with the piece of barbed wire and, leaving the deceased for dead lying postrate on the ground, he frog marched Petronella to another part of the village where he detained her until she was able to escape at night. HB 55-17 HC (CRB) 40-17 XREF FORT RIXON CR 40-05-16 In his defence outline the accused stated that Petronella was his wife but he suspected that she was cheating on him. When he returned home from his gold panning activities he found his wife away from home although she later returned. The following day he left home in the company of his wife Petronella, who was a willing companion. They both proceeded to the plots in search of temporary employment. After spending the whole day together, his wife “absconded at night” fleeing away from the interrogation he had subjected her to on the rumours of her infidelity. Considering that he had observed blood stains on her attire he suspects that it is Petronella who was involved in the killing of the deceased. He himself had nothing to do with it and moved for his acquittal on the murder charge. As he never kidnapped Petronella he should also be found not guilty in respect of the second charge. The postmortem report compiled by Dr Roberto Trecu, a pathologist at United Bulawayo Hospitals, who conducted the autopsy was produced in terms of s278 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The doctor observed the following marks of violence on the body of the deceased: “Small lacerations on the fingers of both hands - Abrasion on the chest, face and frontal area - Laceration on the right parietal zone (3cm x 1cm) - Laceration on the right frontal zone (2,5cm x 1cm) - Laceration and abrasion on the right side of the nose - Small abrasion on the legs.” In respect of the skull and brain, he noted a depressed circular fracture with multiple bones fragments on the right parietal bone, with severe cerebral damage and cerebral compression. The doctor concluded that the cause of death was severe brain damage as a result of depressed skull fracture doe to a beating injury. The stones, exhibits 6 and 7, as well as the axe, exhibits 8, allegedly used in killing the deceased were also produced. Although exhibit 6 has a circumference of 40, 86cm, weights 1,440kgs and exhibit 8 is a formidable weapon with a 37cm handle, a blade 14cm in length whose width is 7cm and weighs 1,715kgs, the eye witness who saw the bludgeoning of the HB 55-17 HC (CRB) 40-17 XREF FORT RIXON CR 40-05-16 deceased from very close range disowned those weapons saying that the ones that were used were much bigger than these exhibits. The evidence of Petronella Sibanda who was lined up to corroborate that of the first state witness Monica Mubata; Norman Sibanda who was to corroborate that of Petronella Ndlovu; Smart Murire the attending detail who observed two deep cuts on the head and a small wound on the nose, Constable Hando who recorded the warned and cautioned statement of the accused; Constable Mahachi who witnesses the recording and that of Dr Roberto Trecu who performed the autopsy, was admitted in terms of s314 of the Criminal Procedure and Evidence Act as it appears on the state outline. The state also led viva voce evidence from two more witness namely Monica Mubata and Petronella Ndlovu. Mubata was a gold panning colleague of the accused who worked with him at the panning sites. She stated that on about three occasions prior to the death of the deceased, the accused person had confided in her and others during panning operations that his girlfriend Petronell Ndlovu had left him for an old man, the deceased. He had repeatedly vowed that he was going to kill either Petronella or the deceased. All efforts to calm him down and make him realize the folly of his intentions had come to naught as the accused was of the firm view that all men like the deceased deserved a big log and nothing else. She later learnt of the deceased’s death on a day when the accused had absented himself from work after making the vow to kill him. Petronella Ndlovu stated that she used to have an affair with the accused and they had kind of co-habited in Claremount compounds. The relationship was an abusive one because the accused used to incessantly assault her and ill-treat her. She then decided to end the relationship and told the accused of her decision. He did not say anything. She then moved to Sibongile Ngwenya’s place where she stayed for three days. Following a visit to the local apostolic church where she received treatment, she returned to Sibongile’s home and packed her belongings going back to her communal home. On the way, she was passing by the deceased’s homestead when she decided to go in and ask for water to drink. The deceased gladly gave her a cup of water and she drank the water. After returning the cup to the deceased she turned round to behold the accused lifting an axe about to strike her on HB 55-17 HC (CRB) 40-17 XREF FORT RIXON CR 40-05-16 the head with it. He held it with both hands over the head and was about to land a blow. She did not see how the accused had gotten there but by then he was already in the yard. The accused uttered the words to the effect that no woman of his was allowed to reject him and get away without being given a beating. The deceased advised him to accept it if the woman was no longer interested in him. Unperturbed the accused advanced at the witness intending to axe her forcing her to retreat. It was then that the deceased stepped in front of her to protect her and then took the first blow from the accused with an axe. Ndlovu said that the accused delivered a blow with the sharp end of the axe chopping the deceased on the left parietal region of the head bringing the deceased tumbling to the ground. While the deceased was on the ground the accused delivered the second blow axing him on the right side of the head again above the ear. The accused had brought a big stone with him which he had put down. He picked it up and used it to strike the deceased on the nose as he lay helpless on the ground. He turned the axe and using the blunt side of it, he struck the deceased on the knees. The accused jumped over the deceased and used a piece of barbed wire to tie the witness’s hands. He also tied her around the waist and forcemarched her back to Dlamini Mine Compound in Claremount. They left the deceased’s homestead at around 1800 hours and arrived at 2000 hours. Whereupon the accused locked her in the house and only unlocked th