THE State V Mthulisi DUBE

### Preamble
1
HB 60.20
HC (CRB) 38/20
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THE STATE

Versus

MTHULISI DUBE

IN THE HIGH COURT OF ZIMBABWE

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

HWANGE 12 & 13 MARCH 2020

Criminal Trial

Mrs Cheda, for the state

Ms C Manyeza, for the accused

MOYO J:		The accused faces a charge of murder, it being alleged that on the 31st of August 2019 he assaulted the deceased Ntobeko Matunjwa with a metal rod once on the head intending to kill him.  Accused denies the charge and instead pleads guilty to a lesser charge of culpable homicide.

The following were tendered into the court record

The state summary

The defence outline

The accused’s confirmed warned and cautioned statement.

The iron rod that was allegedly used in the commission of the offence.

The state led viva voce evidence from Nonhlanhla Ndlovu, Given Moyo and Sergeant Bongani Chanza.  The evidence of Melusi Moyo and Milard Tshuma was expunged from the court record.   The evidence of Constable Munjodzi Dzingai and Doctor Gregori was admitted into the court record as it appears in the state summary.  Accused gave evidence for the defence.  This case is fairly straight forward.  Accused is an uncle to Nonhlanhla Ndlovu the first state witness   Nonhlanhla was being harassed by one Millard Tshuma with whom she had been in a love relationship.  Nonhlanhla could thus not attend to her chores freely as she would delay at the borehole or not even go there in fear of this Millard.

Accused, on the fateful day, decided to look for this Millard and reprimand him for his conduct of harassing Nonhlanhla.  Accused went with one Musa who accompanied him.  Accused carried 2 switches and Musa carried an iron rod.  They found Millard by the shops, tried to talk to him but he fled.  Accused chased him, after he was outrun by Millard Musa offered to catch Millard on accused’s behalf.  Accused then disarmed Musa of the iron rod as he thought it would not be good for Musa to chase Millard whilst carrying an iron rod.  Millard fled from them.  Accused and Musa decided to go to Millard’s homestead and ask his mother  to reprimand him.  They found someone there and left a message for Millard’s sister since Millard stayed with a sister.  They then left heading home.  Musa went into some homestead to collect his cell phone.  Accused proceeded alone it was now getting dark.  Accused was the accosted and chased as well as beaten by the 2nd state witness, deceased and Melusi Moyo who was Millard’s brother.  Accused tried to flee but they caught up with him and surrounded him from both sides.  Deceased is the one who beat him and accused thought that if he fell down they would injure him as they had already beaten him with a sjambok made from tyres.

One of them carried a log.  Given Moyo’s testimony confirms that when they heard that accused had been chasing after Millard they went to find out what was happening.  In his evidence in chief he said Eric came running fast, then deceased followed then he saw accused coming running into the bush.  He said Melusi followed and him (the 2nd state witness remained standing by the road and he heard Melusi screaming saying my young boy has died.  Asked by the court to explain in detail the running battles, he said he saw accused dash first, followed by deceased and Melusi.  He also said there were some trees so he could not see clearly.

The 2nd state witness’s evidence confirms that they heard of Millard’s issue with the accused and they went after them.  So it is the state witnesses that followed the accused.  The 2nd state witness also confirms that accused dashed first, followed by deceased then Melusi.  This is similar to accused’s own account that he was being attacked and was fleeing and that deceased was immediately behind him and was the one beating him.  Accused did not know these people so he clearly feared for his life.  What can a man under attack in the circumstances of the accused person do?  This court cannot take an armchair approach in instances where clearly the state has failed to show that the accused’s version is unreliable or false, or that he did have intention.  The state has clearly failed to discharge the onus on intention because accused and Musa left to look for Millard, what they intended to do is what they have told us, we do not have the right to infer reasons where there are many possible conclusions.  What accused has told us, even if he intended to chastise Millard, through the switches, still one cannot say for that reason he then intended to kill deceased.  It is deceased and his group that attacked accused from the facts long after accused had dealt with the Millard issue and found a way of resolving it.  It is deceased and his friends who then initiated a new attack for different reasons on the accused.  It cannot be held that as accused went home, after leaving Miilard’s home, he was still bent on perpetrating violence and had deceased and his group not accosted and attacked accused in the manner shown in the court record, there would not have been any attack on the deceased by the accused.  The state counsel challenged the accused on the injuries that he suffered during the attack with an inclination that he did not suffer any.  It is the view of this court that that is infact neither here nor there.  An accused does not have to suffer injuries first before he defends himself, even if it were to be found that he did not suffer any injuries, the defence of self is available to a person who is facing an attack that is imminent, the attack need not first commence and you suffer injuries before you are allowed to defend yourself.  It is therefore neither here nor there that accused did suffer or did not suffer any injuries.

Given Moyo, confirms that accused ran ahead with deceased following, and is consistent with accused’s version that he was under attack and therefore was fleeing and that deceased is the one who was immediately following him.  How he then threw the metal rod, and where he aimed, does not necessarily show the accused’s state of mind, for what should a man under attack do, he must first of all stop and think about the propriety of his actions.?  That would be expecting too much from an accused person who is under attack.  The accused person in this case gave his evidence very well.  Nothing was controverted by the state.  His evidence cannot be rejected for the mere reason that he is an accused. It must be shown to be unreasonable, improbable and in fact it must be proven to be manifestly false.  That has not been done.  This accused has been consistent even with his confirmed warned and cautioned statement.  Given Moyo’s evidence also shows that at the time deceased was struck, accused was ahead, so he must have been fleeing as he says.

For these reasons the court cannot find that accused did anything intentionally and will accordingly find the accused person not guilty of murder and convict him on the lesser charge of culpable homicide.

Sentence

The accused convicted of culpable homicide.  He is a first offender.  He pleaded guilty to the appropriate charge.  He was in custody for 5 months.  A life was however lost in the most unfortunate of circumstances.  However, deceased and his group acted in an unbecoming manner on the date in question pushing a man to the edge.  This court finds that the attack on the accused person in itself is weighty mitigation.  He tried to flee, but could not outrun deceased’s group.  He thus acted at the spur of the moment and his moralblameworthiness is thus not serious.  The accused has spent 5 months in remand prison and is also on ART therapy.

The weighty mitigation on the aspect of the attack, coupled with accused’s health condition earns the accused leniency to the extent that this court is of the view that a custodial sentence cannot be justified in these circumstances.

It is for these reasons that the accused will be sentenced as follows:

The accused is sentenced to 5 years imprisonment wholly suspended for 5 years on condition the accused does not within that period commit an offence involving violence whereupon conviction, he shall be sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Ndove and Associates, accused’s legal practitioners