The State v Edious Ndlovu

### Preamble
1
HB 244/22
HC (CRB) 130/22
---------


THE STATE

Versus

EDIOUS NDLOVU

IN THE HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr. J. Sobantu and Mr. M. Ndlovu

BULAWAYO 20 AND 21 SEPTEMBER 2022

Criminal Trial

B. Gundani, for the state

A. Ncube, for the accused

KABASA J: 	The accused is facing a charge of murder, as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  He pleaded guilty but it being a murder charge, a plea of not guilty was entered.

The state allegations are that on 20 May 2021 the accused, who was 20 years old at the time, had a misunderstanding with the now deceased who he worked with at Plot 1, Albany, Fort Rixon. The two were having supper at the material time.  The now deceased slapped the accused once on the face with an open hand.  After supper the accused, now deceased and Mthokozisi Dube retired to bed.  Mthokozisi slept on the bed whilst the accused and the now deceased slept on the floor.  At around 2230 hours Mthokozisi was awakened by sounds from the now deceased who was having difficulties in breathing.  He had been struck with an axe by the accused.  The now deceased was ferried to Mpilo Hospital where he succumbed to his injuries.

The accused did not deny striking the now deceased with an axe and inflicting the injuries which claimed the now deceased’s life.  The accused however gave a history of the bad blood between him and the now deceased.  On the fateful night the now deceased had been bullying him but was restrained by the manager, Mthokozisi.  They then retired to bed until the accused woke up after he felt someone choking him.  It was the now deceased who was strangling him.  The accused reached for an axe which was underneath the bed and struck the now deceased in order to ward off the attack.  He had no intention to kill him.

To prove its case the state produced the following exhibits.  All the exhibits were produced by consent:-

a)	An affidavit deposed to by the police officer who identified the deceased’s body to the doctor who conducted the post mortem.

b)	Postmortem report

c)	Accused’s confirmed warned and cautioned statement.

d)	An axe with the following measurements, 1 200 g in weight, 40 cm the length of the handle, 10 cm the blade with the widest part measuring 7 cm.

The evidence of four witnesses was admitted in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07.  These witnesses are: - Mthokozisi Dube, Paul Nkomo, Eliot Mlalazi and Dr. I. Jekenya.  Evidence was then led from the Investigating Officer, Sergeant Samson Ncube.

Of the evidence admitted in terms of section 314, Mthokozisi Dube’s testimony established the fact that the accused and the now deceased had a misunderstanding when the workers at this plot were having supper.  The now deceased slapped the accused with an open hand.  After supper they retired to bed and accused and the now deceased slept on the floor whilst Mthokozisi was on the bed.  Mthokozisi was later awakened by the sounds from the now deceased who was having difficulties in breathing.  He lit his torch and observed 3 cuts on the left side of the deceased’s head.  He also observed blood on the deceased’s hand, pillow and blankets.  The witness went outside and saw the accused who was wiping an axe with a piece of cloth.  He inquired as to what had happened to which the accused responded that the now deceased was always abusing him, he was tired of it and wanted to kill him.

Eliot Mlalazi is the owner of the plot and it was to him that Mthokozisi reported about the attack on the deceased.  He too observed the blood on the deceased and the 3 wounds on his head.  The deceased was unable to talk.

Paul Nkomo is a police officer who accompanied the Investigating Officer to the scene.  The axe used in the assault was recovered in his presence.  He also witnessed the recording of accused’s warned and cautioned statement.

Doctor I Jekenya is the doctor who conducted the postmortem and concluded that the cause of death was:-

Traumatic brain injury

Depressed skull fractures

Head injury

The doctor also observed the following marks of violence:-

a)	2 cm wide wound on the left forehead along the hair line and about 6 cm from the middle part of the left eyebrow.

b)	5 cm to the left of the wound on the left frontal region is a 3, 5 cm wound (all of it on the hairy part of the frontal region)

The Investigating Officer’s evidence was largely common cause.  We were of the considered view that his evidence could have been admitted in terms of section 314 and Mthokozisi instead be the one to give viva voce evidence.

Whilst section 314 serves a useful purpose where the testimony of witnesses is not in dispute, the state’s decision to call the Investigating Officer and not Mthokozisi was not the wisest of decisions.  Mthokozisi could have shed light on the events which occurred in that bedroom which he shared with the accused and the now deceased.

The sentiments expressed by GOWORA JA (as she then was) in Vincent Dube v State SC 57-16, to the effect that the utilization of s314 does not always lend itself as the best approach in cases where viva voce evidence would assist in clarifying certain issues, apply with equal force in this case.

Be that as it may this did not deal a fatal blow to the state case.  This is so because the accused proffered a defence of self-defence and provocation. The issue therefore is whether these defences are available to him, given his version of events.  Granted he was not expected to convince the court as to the truthfulness of his story, all he had to do, if he chose to, was to give an explanation but whatever explanation he gave, no matter how improbable it may be, the court cannot dismiss it unless it is shown to be not only improbable but beyond doubt false.  (R v Difford 1937 AD 370, S v Kurauone HH 961-15).

In a long winding defence outline the accused painted a picture of one who was constantly bullied and on the night in question he had been attacked by the now deceased before they retired to bed.  Whilst sleeping the now deceased strangled him and he resorted to using an axe in order to ward off the attack.

However, in his confirmed warned and cautioned statement the accused said:-

“I admit the charge of axing Philani Ndlovu.  I axed him twice on his head because he had slapped me as we were eating sadza."

This statement was given at the time the accused was afforded an opportunity to explain his actions.  This was the first opportunity he had to state his side of the story, barely 2 days after the incident.  It did not require much thought on his part to state why he had resorted to the use of an axe.

All he was expected to say was that he was being strangled and needed to rescue himself and so reached out for the axe.  This could have been said in one or two sentences just as the statement he gave which comprised of one sentence.

The question is, if there was any truth in the version he now gave in his defence outline and in his evidence at trial, why did he not state that at the time he was given the first opportunity to explain what had happened?

He would have us believe that he was in shock.  What shock, when he still did mention the fact that the now deceased had slapped him when they were having supper?  We got the impression that he decided to embellish his story in order to justify his use of an axe.  The story in the defence outline is a product of a scheming mind and such scheming had not taken root at the time of his arrest and subsequent recording of the warned and cautioned statement.

We got the impression that he is a young man who has little respect for the truth.  This is so because, besides the telling manufactured story on why he used an axe, he also painted a picture of one who reacted on the spur of the moment and reached out to an axe which happened to be what was available.  He sought to ensure he dove-tailed the story to the requirements of the self-defence narrative.

However his story unraveled under cross-examination.  Asked whether he knew that there was an axe under the bed he said yes as they used to use it.  When further probed: _

“So you knew it was there before you went to sleep,” he quickly backtracked and responded:-

“I did not know.”

He also initially gave the impression that the room was not lit suggesting that he probably just reached out for whatever was underneath the bed and struck out without necessarily aiming at any particular part of the body.  However under cross-examination he again back tracked and said the room was lit and the source of light was a battery powered spot light.  It followed therefore that he took the axe and knew it was an axe, used it to strike the deceased on the head, knowing that the blow was to hit that part of the body.  He is about 1, 6 m tall whilst the deceased was 1, 86 m tall, considerably taller than him and yet he said they were both standing when he struck the deceased.

And if, as he said, the first blow felled the deceased, why did he strike again?  The deceased sustained depressed fractures of the skull, an indication of repeated blows.  Why inflict repeated blows with an axe and directed at the head if his intention was not to kill but only to ward off an attack?

Section 253 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 sets out the requirements to be satisfied for self defence.  The accused’s version as given in his warned and cautioned statement clearly shows that he was not happy with the now deceased and sought to avenge the bullying.  He was not under attack at the time he inflicted the fatal blows on the deceased.

If Mthokozisi was roused from sleep by the laboured breathing coming from the now deceased, what would have militated against him hearing the accused wrestling with the now deceased whilst being strangled?  It did not happen and that is why Mthokozisi did not hear anything until after the infliction of the blows which caused the now deceased’s laboured breathing.

The blood stains found on the now deceased were on his pillow, blankets and the wall.  This gives the inescapable conclusion that the now deceased was struck in his sleep.  The accused’s calculated behavior of going outside to wipe the murder weapon also speaks volumes of the manner in which the assault on the now deceased occurred.  It was stealthily done and the accused managed to stealthily leave the room to wipe the axe and it was there that Mthokozisi found him after he was roused from sleep by the deceased’s breathing.

We were satisfied there was no attack, imminent or commenced.  With that finding all the other requirements fall away.

As regards provocation, section 239 of the Criminal Code provides that:-

“239 (1) 	If, after being provoked, a person does or omits to do anything resulting in the death of a person which would be an essential element of the crime of murder if done or omitted, as the case may be, with the intention or realization referred to in section forty-seven, the person shall be guilty of culpable homicide, if as result of the provocation –

he or she does not have the intention or realization referred to in section forty-seven; or

he or she has the intention or realization referred to in section forty-seven but has completely lost his or her self-control, the provocation being sufficient to make a reasonable person in his or her position and circumstances lose his or her self-control.”

In casu the accused testified to the effect that after supper the now deceased went to sleep first whilst he, Mthokozisi and one Thuba, later followed.  It therefore follows that the slapping had occurred during supper, some time had therefore lapsed and so it cannot be said at the time the accused struck the now deceased with an axe he had completely lost self-control.

When one harbours ill-feelings and as a result acts on pent-up emotions in order to avenge, it can hardly be said they lost self-control and acted on the spur of the moment.  Granted they may have been provoked over time but they cannot take umbrage in the defence of provocation.

Section 239 (2) applies in such circumstances. It provides that:-

“(2) 	For the avoidance of doubt it is declared that if a court finds that a person accused of murder was provoked but that –

he or she did have the intention or realization referred to in section forty-seven; or

the provocation was not sufficient to make a reasonable person in the accused’s position and circumstances lose his or her self-control;

the accused shall not be entitled to a partial defence in terms of subsection (1) but the court may regard the provocation as mitigatory as provided in section two hundred and thirty-eight.”

We are therefore of the considered view that the provocation in casu can only count in mitigation and not as a partial defence to the charge of murder.

The accused used an axe, the size of the blade in itself is indicative of the harm he intended to cause.  He struck the now deceased not once but twice with enough force to cause fractures of the skull.  The blows were aimed at a most delicate part of the body, the head.  Even if it is said he did not set out to kill and that was his aim and object (S v Mugwanda 2002 (1) ZLR 547 (S), S v Jealous Tomasi HH 217-16), by using an axe to strike at the head he must have realized that there was a real risk or possibility that his conduct may cause death but continued nonetheless despite the risk or possibility.

In Tafadzwa Watson Mapfoche v The State SC 84-21 MAKARAU JA (as she then was) referring to section 47 (1) of the Criminal Law Code where murder is defined in paragraphs 1 (a) and 1 (b) made the following remarks:-

“Thus under the section, it is not necessary, as was the position under the common law, to find the accused guilty of murder with either actual intent or with constructive intent.  Put differently, it is not necessary under the Code to specify that the accused has been convicted under section 47 (1) (a) or (b), killing or causing the death of another person with either of the two intentions is murder as defined by the section.

It further appears to me that the distinction between a conviction of murder with actual intent and murder with constructive intent, which under the common law greatly influences the court in assessing sentence is no longer as significant or material as it was.”

With that said, we are left with no doubt that the accused caused the deceased’s death in circumstances covered in section 47 (1) (b) but specifying whether section 47 (1) (a) or 1 (b) does not, given MAKARAU JA’s remarks(supra), make it any less a murder.

We are consequently satisfied the state has proved its case beyond a reasonable doubt and find the accused guilty of murder as defined in section 47 of the Criminal Law Code.

Sentence

In assessing sentence the court will consider the following factors:-

That you are a youthful first offender.  You were only 20 years old when you committed this offence.  Youthfulness is a factor that palliates the seriousness of an offence.  (S v Zaranyika and Others 1995 (1) ZLR 270 (H)).

You lost your father at a young age and had to drop out of school at Grade 7.  At that young age you had to fend for yourself and found work as a farm labourer.  Life has not been kind to you.

The deceased used to pick on you and earlier that night he had slapped you.  Whilst the drastic action you took in taking his life cannot be condoned, the court will not lose sight of the provocation and the bullying.

You will have to carry the burden of knowing you took a life and that cannot be easy, especially for a youthful offender.

Aggravating is the fact that a life was needlessly lost.  Life is God given and no one has the right to take another’s life.

You have caused pain to the deceased’s loved ones.  He was equally youthful, you snuffed out whatever dreams he had.

Society frowns at people who fail to respect the sanctity of life.  The courts must be seen to mete out sentences that show that such conduct will never be tolerated.

However in assessing the term of imprisonment, the court should never adopt a vengeful attitude (S v Ndlovu HB 46-96).  The sentence must be rational and fair.  (S v Harington 1988 (2) ZLR 344)

Mercy or compassion has nothing in common with maudlin sympathy and this approach which espouses a humane approach to sentence allows the court to assess a penalty which fits the offender as well as the crime and being fair to society.

That said, a sentence of 15 years will meet the justice of the case.

You are accordingly sentenced to:-

15 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

R. Ndlovu and Company, accused’s legal practitioners