THE State V Nhlanhla Mlalazi

### Preamble
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HB 171/19
HC (CRB) 51/19
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THE STATE

Versus

NHLANHLA MLALAZI

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr P. Damba & Mr O. Dewa

BULAWAYO18, 19, & 30 JULY & 1 AUGUST 2019

Criminal Trial

K. Jaravaza for the state

A. J. Dhliwayo for the accused

MABHIKWA J:	The deceased was 46 years old when he was caused to meet his maker.  On 20 September 2016 in the dead of night, he was asleep with his wife Dorothy Nduna and a female employee, Sibonokuhle Nyoni at his Tuck Shop, at Ndlovu Mining Syndicate Mine in the Matopo gold panning areas.  They were awakened by the loud noise of someone bludgeoning the door.  The person succeeded and upon entering the tuck shop, demanded money from the deceased.  He then immediately struck the deceased once on the forehead above the left eye and once on the right upper limb with an axe.  The deceased was further robbed of the sum of US$248 and the attacker disappeared into the night.  The deceased was taken to United Bulawayo Hospitals where he was treated and discharged.  However, his health deteriorated and he died a month later at Mpilo Hospital.

The accused was arrested and thus appears in this court on a charge of murder as defined in section 47(1) of the Criminal Law (Codification  and reform) Act [Chapter 9:23].

The State produced as evidence the post mortem report number 359/182/2016 by Dr I. Jekenya.  The doctor observed the following as marks of violence:

Back extensive healing abrasions

Healing wound on the outer side of the right knee

Extensive healing wounds on the right hand

A 16cm sutured wound running at point 5cm above the midline part of the left eye brow going backward to the parietal region

The doctor also opined that severe force was used and that a brain abscess had developed as a complication of assault or axing.  He further opinioned that the cause of death was;

Brain abscess

Skull fracture and

Post assault head injury.

The state thereafter called two (2) witnesses.

DOROTHY NDUBA

She is a 48 year old woman who now resides at her rural home in Gwelutshena area of Nkayi.  At the time, she ordinarily resided in Bulawayo but she and her husband operated a tuck shop in the said panning area of Matobo District.  She testified that sometime around midnight in September 2016, someone forced his way into their tuck shop where she, her husband and an employee were asleep.  The husband switched the light on and rushed to the door. The intruder demanded money and immediately axed her husband.  The intruder then noticed the female employee (Sibonokuhle) and started attacking her also but was stopped by his colleague who was apparently at the door, who told him not to axe a woman.  Sibonakele then cried out and implored the witness to give the intruder the money.  The intruder apparently, was shocked as he had not noticed the witness’ presence.  The witness then handed to the intruder a black and white handbag as well as a brown purse, whereupon the intruder got out and fled.

This witness explained that the light was switched on in fact at the time the attacker was still hammering the door. When he finally entered, the light was already on.  She said the source of light was a normal 60, 80 or 100 watt bulb powered by a 12 volts motor vehicle battery.  So the shop, which in any event was so small, was well lit.

The witness said for about 5 minutes she managed to witness the attack unfold.  She was standing behind a piece of cloth or curtain that divided the small shop into two parts.  She had only the head protruding slightly above the cloth.  Probably, that is the reason why the intruder did not notice her until the screams by Sibonokuhle.

The witness said she had a clear view of the person who attacked them as she was literally at the same place with him, about a metre away, hiding from behind the piece of cloth.  After all she had to hand him a handbag and a purse before he went away.  The attacker was not covering his face or head with a balaclava or any form of disguise.  She was adamant that she could be able to identify the accused anytime thereafter as the person who attacked them and killed her husband with an axe.

Asked why she could be certain in a robbery situation that she was able to identify the accused, the witness said 5 minutes was long enough for her in the circumstances to have observed the attacker.  She said in any event, she could not see how anyone would forget a person who would have done such a horrible did to them.

The witness said that in terms of appearance, the attacker was neither tall nor short.  He also was not light in complexion.  It may of course be reasonably argued that this could well be dock identification since she had now seen the accused in the dock.

However, the witness mentioned something that was only visible from a very short distance from the accused but not from the bench, the bar or the witness sand.  She said she remembers that the attacker had a scar which she could not remember with precision whether it was above the mouth or nose.  At the same time she was pointing around the nose, cheek and mouth areas of the face.  At the state’s request, a prison officer and a police officer present in court were ordered to check the accused.  They had no difficulties from about the same close range as referred to by the witness, to notice a scar on the left side of the face below the left eye region.

The witness said in October 2017, about six (6) months after the murder, the accused came to buy something from the shop.  She recognized him and identified him to one Chance Khumalo a distant relative, whom she had hired to assist her after her husband’s death.  The accused returned the following day to buy bread and she again recognized him.

In cross examination, the witness remained steadfast when asked by counsel for the accused; and answered that;

“if someone had wronged you that badly, you would not easily forget, so I saw him and his face, I saw the scar and remembered it was him.”

The court has no reason whatsoever to reject the witness’s evidence as false.  Throughout her evidence, no motive to lie was suggested to her.  She clearly had no reason to falsely incriminate the accused.

Chance Khumalo

This was the second and last state witness.  His evidence was simple and precise.  He knew the deceased before his death.  After the death, he was assisting the deceased’s wife at the tuck shop.  He said the accused had been pointed to him by 1st witness when he came to the tuck shop and bought a soft drink.  As the accused left, Dorothy (1st witness) told him that he was the person who had killed her husband.  When he enquired why she was saying that, Dorothy told him that she had observed his appearance and a scar just underneath his eye. (Pointing under the left eye).  The witness said that although he had seen, but had not made much of the scar, it so happened that the accused returned the following day.  He then became really curious and wanted to be sure to observe it.  Indeed he observed the scar on the accused as stated by Dorothy.  When asked whether one, especially a young man, could walk to Matopo police station, he said no, as it was quite a distance.  The 1st witness had also earlier been asked the same question and answered that one would need to board kombis to get to the police station.

The court has no reason to reject this witness’ evidence as being the truth.  He was a witness with no interest in the matter.  He did not exaggerate his evidence neither did he exhibit any motive to falsely incriminate the accused in that short evidence.

The court was cautious cognizant of the care to be taken in dealing with cases where proper and satisfactory identification may be necessary before convicting an accused person.  Cases such as that of the State vs Ndlovu and Ors 1985 (2) ZLR 261 (sic) are pertinent where GUBBAY JA as he then was, quoted HOWES JA, remarking with his accustomed lucidity in S v Muthetwa 1972 (3) SA 766 (AD) at 768 A-C that;

“Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution.  It is not enough for the identifying witness to be honest the reliability of his observation must also be tested.  This depends on various factors, such as lighting, visibility, and eyesight, the proximity of the witness, his opportunity for observation, both as to time and situation, the extent of his prior knowledge of the accused, the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, built, gait, and dress, the result of identification parades, if any, and, of course, the evidence by or on behalf of the accused.  The list is not exhaustive.  These factors or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probability.”

In S vs Magwaza 1985 (3) SA 29 (A) HOXTER JA where he expressed that when a person points out a thing, his act proves that he has knowledge of some fact relating to that thing.  In casu, Dorothy could not remember precisely where on the face she saw a scar on the accused.  Fortunately or unfortunately, the scar was not visible from the witness stand and the bench or from the bar.  But Dorothy pointed to an area on her own face on the left side around the nose, lower cheek just above the mouth and said she remembers seeing a scar on the accused.  Indeed checking at closer range, the officers in the courtroom observed the scar.

The court is satisfied that the identifying witnesses, particularly Dorothy were not only honest but also that the reliability of their observation had been credibly tested.

The accused on his part pleaded not guilty to the charge and gave a very short defence of an alibi.  He said he was never at the scene of murder on the alleged date and had told the police upon his arrest that at the relevant time, he was at his brother’s house at No. 71532 New Lobengula in Bulawayo.  He had refused to sign an extra curial statement and to make any indications when the police tried to force him to do so.  When he took to the witness stand, the accused had a 3600 somersault.  He gave in his evidence the impression that he had known the tuck shop occupants prior to the incident.  He, for the 1st time in the case,  insinuated that he could not, and did not go to buy a soft drink and bread two (2) days in succession as alleged by state witnesses because there is a nearer shop he could buy from.  He said he realised that he had been implicated by someone he was working with, and that that person, whom he claimed was one Simba Shoko, had eventually influenced Dorothy Nduma so that they would falsely incriminate him in the murder.  He again for the 1st time in the trial and when both state witnesses had testified and gone, said that Simba Shoko was now staying at Ndlovu Mine, which probably is one and the same place as Ndlovu Tuck Shop.  The accused went on to claim that, Shoko did all that, so that he would be arrested for the murder and then he, (Shoko) would remain digging in his gold panning pit.  So emphatic was he on that point and the bad blood between him and Shoko that the issue became his entire evidence.

The accused completely forgot about his defence outline to the extent that even when asked by his own counsel in re-examination if he had any direct evidence that Shoko and Dorothy caused his arrest, he said he had full evidence about that  and then went on to say;

“At the time the offence was committed, we were together with Shoko in Kezi but he did not tell them about that only to implicate me later.”

This he said in anger about Shoko seemingly accusing Shoko of suddenly having turned against on him” traitor style”.

Surely, the accused had been at Kezi which is in Matobo at the time of the murder. He lied in his defence outline that he had been in New Lobengula in Bulawayo.  He also seemingly had lied in his defence outline and initial evidence about the extent of his knowledge of Ndlovu mining claims and tuck shop.

The court rejects the accused’s story as completely false.  The court is further satisfied that the state proved its case against him beyond reasonable doubt and that he killed the deceased.  From the facts before us the court is not convinced that the accused had set out to kill the deceased on that day, or that he intended to kill when he struck.  However, he clearly foresaw the possibility of death as a consequence but was reckless and nonetheless proceeded in his conduct despite the risk or possibility.

Accordingly the accused is found guilty of murder with constructive intent.

Sentence

The court will consider all that has been submitted by counsel in accused’s favour, both in his personal circumstances and in circumstances relating to the commission of the offence.

The accused has a young family of 4 to look after i.e. his wife and two (2) minor children.

The accused has however been convicted of a serious crime.  The court has been persuaded on his behalf to consider that even though he was above 18, youthfulness still played a part in his actions in committing the offence as he was just about 4 to 5 years above the threshold of 21 years old at the time he committed the offence.  The court was persuaded also, to consider a reformative sentence of about 15 years imprisonment even though convicted of murder with constructive intent and in aggravating circumstances.  The state on the other hand has urged the court to uphold the sanctity of life and met out a sentence of 25 years imprisonment or above.

The court will consider that this was a murder in the course of a robbery and/ it was committed during an unlawful entry into premises to commit a crime – see section 47(2) (ii) and (iii) of the Criminal Law Codification and Reform Act [Chapter 9:23].

The court has a duty to uphold the sanctity of human life.  In this case, a precious life of a man who, with the assistance of his wife, was trying to make a lawful and decent living for his family, was lost in the hands of the accused in a senseless midnight killing simply because he wanted to reap where he did not sow.

The courts have to send a clear message that they will not condone violence especially deadly night attacks on innocent and defenceless citizens in their sleep with deadly weapons such as axes, machets or knives.

In terms of section 47(4)(a) of the Criminal Code;

“4.	A person convicted of murder shall be liable –

Subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] to death, imprisonment for life or imprisonment for any definite period of not less than twenty years imprisonment, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3) or

In any other case, to imprisonment for any definite period.

The court will, consider that the accused has spent 2 years and one month in pre-trial incarceration to impose a painful but reformative sentence.

Accordingly, the accused is sentenced to 20 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

T. Hara & Partners accused’s legal practitioners