The State v Elliot Ndlovu

### Preamble
1
HB 75/20
HC (CRB) 31/20
---------


THE STATE

Versus

ELLIOT NDLOVU

IN THE HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mr T. E. Ndlovu & Mr N. Ndubiwa

HWANGE HIGH COURT 17 MARCH 2020

Criminal Trial

B. Tshabalala for the state

N. Ndlovu for the accused

MOYO J:	The accused faces a charge of murder, it being alleged that on the 15th of February 2016 and at a field in Nkanyiso Village, Lupane, he assaulted the deceased Hoko Bhitsho Ngwenya thrice on the head with a knobkerrie resulting in his death.  The accused denies the charge.  The following were tendered into the court record;

the state summary

the defence outline

the post mortem report

the knobkerrie allegedly used

accused’s medical book extract

They were all duly marked.  The evidence of Ngoneni Sazini Sibanda, Veronica Nkiwane, Luckson Sigodho, Daniel Kupangwa, Patricia Mavundla and Dr I. Jekenya was admitted into the court record as it appears in the state summary.

Masani Ndlovu gave viva voce evidence for the state.  He told the court that on the fateful day accused grazed his cattle on the deceased’s reserved field.  It was reserved for thatching grass.  The deceased then queried accused on this and accused then told deceased that deceased had no right to tell him that.  Accused then took a knobkerrie and struck deceased on the head.  Deceased retaliated and struck accused on the head twice.  Accused used a knobkerrie and deceased used a small axe handle.  Deceased hit accused on the head and accused then hit deceased with the back of the axe on the head.  Deceased turned, that is when accused struck him.  Accused then struck deceased twice on the head.  Accused in his defence says deceased accosted him and asked him why accused grazed his cattle there, accused explained that he was merely passing, deceased then said to accused I will teach you a lesson, deceased then hit accused with the blunt side of the axe, he said they wrestled and deceased hit him again on the ribs, accused was cut as they wrestled for the axe.  The knobkerrie subsequently fell and the accused took it and hit deceased twice on the head.  Deceased fell on the ground.  Accused said that he was also injured on his head, ribs and knee and tendered an extract from his medical records indicating that he was treated for head injuries.

In this matter the state case and defence cases are 2 versions that somewhat differ from each other.  Per the state case accused was the aggressor and yet per the accused it is deceased who was the aggressor.  This is important because it is crucial to the moral blameworthiness of the accused.  The state lead evidence from a single witness who is a son to the deceased and therefore can be said to have an interest.  However, he gave his evidence well because he did not dispute that deceased did assault the accused person in the dispute.  The difficulty is that, faced with the state version, led from a single witness with no corroboration whatsoever, this court is unable to throw away accused’s version which is that deceased attacked him first. And that deceased was still armed with the axe when accused hit him.  That version cannot be taken away from the accused, as he has also been consistent with his defence outline and his evidence in court.  The court in such a scenario has no option but to give the accused the benefit of the doubt and say that the state has not sufficiently rebutted the possibility of deceased being the aggressor on the physical front because deceased was also agitated by accused’s conduct causing him to approach the accused person.  It is for these reasons that the accused is given the benefit of the doubt in the circumstances relating to the physical altercation and there could have been an element of provocation and self defence although not in full.  The state counsel submitted that the post mortem report proves that excessive force was used and therefore accused must have foreseen death as a real possibility in the circumstances.  The court is unable to agree with this assertion for the simple reason that given that both deceased and accused were in some heated exchange, and accused himself was also injured, the degree of  force used on its own cannot be a pointer as to the accused’s mental status.   In a fight, a lot happens in a person’s mind, even to the extent of clouding one’s judgment to a certain extent.  It is for this reason that this court is of the view that accused did act wrongfully on the date in question but only to the extent that he used excessive force in a fight therefore rendering him careless in the circumstances.  To find that there was intention would be far-fetched.  It is for these reasons that accused will be found not guilty of murder but instead found guilty of culpable homicide.

Sentence

The accused is convicted of culpable homicide.  He is a first offender.  He is a family man and the sole breadwinner.  He, however, caused the death of an elderly person.  Of course this court has given him the benefit of the doubt as to who was the aggressor.  But nonetheless a life was lost and these courts frown at the loss of life through violence.  Deterrent sentences must be given to conscientise society that life is sacred.  An appropriate sentence in these circumstances would have been one in the region of 7 years imprisonment but because accused spent about 2 years in pre-trial incarceration and the circumstance of the commission of the offence are such that he also suffered injuries at the hands of the deceased, who could have been the aggressor, the sentence will accordingly be discounted by a period of 4 years, 2 years for the pre-trial incarceration period and 2 years for the accused’s personal circumstances and the circumstances of the commission of the offence as well as the delay in bringing him to justice. (the offence having been committed in February 2016 and him being tried in March 2020 through no fault of his own).

The accused is accordingly sentenced to 3 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Ncube Attorneys, accused’s legal practitioners