THE State V Prince Ndebele

### Preamble
1
HB 103/21
HC (CRB) 128/20
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THE STATE

Versus

PRINCE NDEBELE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr P. Damba and Mr J. Sobantu

BULAWAYO 27 & 28 MAY 2021

Criminal Trial

K. Ndlovu for the state

Ms S. Z. Luthuli for the accused

MAKONESE J:	This matter raises the question of the doctrine of common purpose and its applicability in a matter where an accused admits having participated in the actual assault of the deceased, but avers that he dissociated himself from a fatal assault leading to the death of a victim. It is settled in our law that each individual in a common purpose case is to be judged on his own mens rea.  The conduct of the accused on which criminal liability for the crime is founded consists not necessarily in an act which is casually linked with the death of the decease, but solely in an act by which he associates himself with the common purpose to commit the crime.

The accused in this matter was aged 20 years at the time of the commission of the offence.  The deceased was aged 77 years at the time he met his demise.

The accused appears in this court facing one count of murder in contravention of s47 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  It being alleged that on 6th November 2018 and at Esidulini Business Centre, Filabusi the accused acting in common purpose with one Mihlayenkosi Mpofu who is still at large, assaulted the deceased (Duster Dhlamini) using fists realising that there was a real risk or possibility that his death may ensue.  The accused denies the allegations.

The brief facts as summarised in the outline of the state case are these.  On the day in question the deceased was drinking beer at Pioneer General Dealer shop, Esidulini, Filabusi.  During the afternoon of that day the deceased approached Melody Nyoni the shop keeper and requested to sleep in a kitchen, some four metres from the shop in the event that he became too drunk to go home.  During the evening of that day deceased slept in that kitchen while Melody Nyoni slept in a room inside the shop.

At around 2300 hours the accused person arrived at his shop in the company of Mihlayenkosi Mpofu (who is still at large) and Energy Dhlamini who is Melody’s husband.  Energy was very drunk.  He immediately retired to bed in his wife’s room.  The accused and Mihlayenkosi requested to sleep in the shop.  Melody turned down the request.  The accused and Mihlayenkosi then approached the deceased in the kitchen and started questioning him about his identity and why he was allowed to sleep in the kitchen.  An altercation ensued.  Accused was attacked with fists on the head and face.  Melody shouted out and asked the accused and his companion to stop the assault.  The assault appears to have stopped and Melody retired to bed.  The following morning Melody went to the kitchen to check on the deceased but could not find him there.  Melody later discovered that the deceased was lying a few metres from the kitchen.  He had bruises on the face, had swollen eyes and was bleeding from the ears.  Melody alerted the deceased’s relatives who took him to hospital.  The deceased was taken to Filabusi Hospital and later transferred to United Bulawayo Hospitals and then to Mpilo Central Hospital. He died on 7th December 2018.  A pathologist Dr I. Jekenya examined the remains of the deceased.  He concluded that the cause of death was (a) meningitis; (b) brain trauma; (c) head injury; (d) recent assault.

The accused tendered a defence outline which now forms part of the record of proceedings.  It is necessary to set out in full accused’s defence outline which is in the following terms:

“On the 6th day of November 2018

Mihlayenkosi Ndlovu, Energy Dhlamini and the accused had been drinking beer at Amazon.

The three returned at around 12 midnight, they left Energy Dhlamini at Pioneer General Dealer, Esidulini Business Centre.  As they were leaving, they saw a man whom they could not identify at that point, leaving the kitchen hut behind the shop.

They enquired who he was and it led into an altercation of which insults were exchamged.

The accused slapped the deceased with open hands and walked away.

Mihlayenkosi Ndlovu then drew closer and started assaulting the deceased too.

At this point the accused had dissociated himself from the assault, he even warned Mihlayenkosi to stop what he was doing when the deceased started crying out.

The following morning, accused saw that deceased had sustained bruises on his face and he alerted Mihlayenkosi Ndlovu about it.

Accused does not know what led to the deceased’s injuries as well as his death.

Accused will deny assaulting the deceased with clenched fists and sticks.

Accused will confirm that he was charged and convicted of assault on his own plea of guilty in the Magistrates’ Court and he paid a fine of $200,00.

The accused will further assert that through his action he had no intentions to kill Duster Dhalmini neither did he realise that there was a real risk or possibility that his conduct might cause death …”

The accused presented a somewhat different version of events in his confirmed warned and cautioned statement recorded at Filabusi on 10th December 2018.  In the statement the accused stated as follows:

“I am Prince Ndebele.  I admit the allegations levelled against me.  We left Amazon at 12 midnight going to Sidulini.  Upon arrival we knocked at Melody’s door and she opened the shop.  Mihla Ndlovu requested to sleep there.  I Prince stated that if Mihla Ndlovu is sleeping myself would be gone because I have a wife.  Melody Nyoni stated that Mihla for you to sleep here will be impossible because it is a shop.  We came out of the shop and we saw a person coming out of the kitchen.  I then asked as to who he was who was coming out there.  I shouted and advanced to him while shouting and I stopped him and after assaulting him, Melody Nyoni called me and we went away and left Mihla Ndlovu there assaulting Dhlamini.  As I was talking to Melody Nyoni I heard Dhlamini screaming saying to Melody Nyoni, “the person is killing me". ”I went there and said to Mihla leave Dhlamini.  He left him and we left and went to sleep at the door another shop (sic).  We woke up in the morning and I saw Dhlamini with injuries on the face.  I said to Mihla, Dhlamini has suffered injuries.  I left him standing there and I went away”.  (emphasis mine)

A post mortem report compiled by Dr I. Jekenya, a pathologist based at Mpilo Central Hospital was tendered into the record.  The report was prepared following an examination of the remains of the deceased.

The report revealed that deceased had suffered bruises on the face.  The deceased sustained a hair line basal fracture.  There was evidence of copious amounts of sero-sanguinous subarachnoid fluid and early purulent meningitis.  There was extensive subarachnoid haemorrhages and 4 x 3haemotoma on the left parietal lobe.  The brain was congested with excessive (CSF) cerebral spinal fluid.

The state opened its case by leading evidence from one single witness, MELODY NYONI.  Her evidence was brief and to the point.  She testified that at the material time she was employed as a storekeeper at Pioneer General Dealer shop.  The shop belonged to her father.  She considered the deceased as a distant relative during his lifetime.  She knew the accused as a local person and customer.  On the day in question the deceased asked to sleep in a kitchen at the shop.  She permitted him to sleep in the kitchen as he appeared drunk and was unable to get home.  At around 23:00 hours that same night accused arrived at the shop in the company of Mihlayenkosi and her husband Energy Nyoni.  Her husband retired to bed as he was excessively drunk.  Mihlayenkosi requested for a place to sleep in the shop.  She declined this request.   Moments later she heard some noises.  She made out as if people were wrestling or fighting.  She heard the deceased complaining that deceased and Mihlayenkosi were assaulting him. She called out accused’s name and asked accused what he was doing.  Accused responded that it was not him.  Accused indicated that the person responsible was Mihlayenkosi.  Before there was silence the witness testified that she heard deceased utter words to this effect; “Prince and Mihla why are you assaulting me.  You are going to kill me”.  (emphasis added)

The witness testified that she went to check on the deceased the following morning.  She realized that deceased had suffered some serious injuries and was bleeding from the ears.  His face was bruised.  His eyes were swollen.  The witness reported the matter to deceased’s relatives.  She later learnt that on 7th December 2018 the deceased had passed on at Mpilo Central Hospital.

The witness was subjected to extensive cross-examination.  The witness maintained her version of events.  Her evidence was not discredited in any material respects.  We accept her evidence as an accurate reflection of events leading to the death of the deceased.  It is worth noting that the witness did not exaggerate her evidence.  She did not testify on matters she did not perceive or witness.  She was a credible witness.

The evidence of the under listed witnesses was admitted into the record by way of formal admissions in terms of s314 of the Criminal Procedure and Evidence Act (Chapter 9:07).

Monarch Dube

Gracious Mutero

Dr I. Jekenya

The state closed its case without leading further oral testimony.

The defence opened its case by leading evidence for its single witness, PRINCE NDEBELE, the accused.  He elected to give evidence under oath.  His oral version of events differed in material respects to his defence outline and his confirmed warned and cautioned statement.  The accused confirmed that he arrived at Pioneer General Dealer shop around midnight on the day in question.  He was in the company of Energy Nyoni and Mihlayenkosi.  They were drunk.  They had been drinking at Amazon.  Energy was so drunk that upon arrival at the shop he went to sleep.  Mihlayenkosi asked Melody for a place to sleep in the shop. This request was refused.  Accused and Mihlayenkosi then observed that deceased was in the kitchen.  Accused says they confronted him about what business he had at that hour at the shop.  Accused says that deceased uttered insults concerning his mother’s private parts.  Accused was angered and responded by clapping deceased with open hands on the face thrice.  The deceased shouted out that he was under attack.  Melody asked the accused what they were doing.  Accused responded and indicated that it was Mihlayenkosi assaulting the deceased.  Accused says he momentarily left the scene when he was called out by Melody.  Accused testified that he reprimanded Mihlayenkosi and indicated that he should stop assaulting the deceased.  Accused did not witness any injuries on the deceased because it was dark.  He went to the shop next door where he put up for the night.  The following morning he observed that deceased had sustained some injuries.

Analysis of the evidence

The state and the defence have accepted that there is insufficient evidence to convict the accused on the murder charge.  We are in agreement with this assessment of the evidence.  There is simply no evidence to establish beyond reasonable doubt that accused had actual or constructive intention to cause the death of the deceased.

What is left for determination is whether the accused is liable for the lessor charge of culpable homicide on the basis of common purpose.  There is sufficient evidence to indicate that accused participated in the initial attack upon the deceased.  This, the accused confirms in his confirmed warned and cautioned statement as well as in his defence outline.  Accused’s contention is that he was not involved in the brutal and fatal attack which he blames on Mihlayenkosi.  Accused suggests that he dissociated himself from the assault by walking away.  In his oral evidence he went further to suggest that he actually restrained Mihlayenkosi from further assaulting the deceased.  The undisputed evidence of Melody is, however, that before she called out to accused  to stop what they were doing she heard sounds of people wrestling or fighting.  Melody confirmed that she heard the deceased calling out that these people (accused and Mhlayenkosi) are killing me.  There can be no doubt, therefore that accused was an active participant in the assault.  He may have called Mihlayenkosi to stop the assault but it appears from the evidence that the damage had already been done.  When silence fell, according to Melody, the deceased must have been seriously injured.  There is no suggestion by the accused that the deceased was assaulted by someone else at some other place during that night.

Whether common purpose was established

Association in a common illegal purpose constitutes the participation or the actus reus.  It is not necessary to show that each party did a specific act towards the attainment of the joint object.  Association in the common design makes the act of the principal offender the act of all.  Such association need not be express, it may be implied from conduct.  A prior agreement on a common purpose is not required.  The accused in this matter accepts having assaulted the deceased.  He was present throughout when Mihlayenkosi assaulted the deceased.

The leading case on common purpose in this jurisdiction and South Africa is S v Safatsi 1988 (1) SA 808.  The other cases on the subject that have followed S v Safatsi (supra) are S v Mgedezi & Ors1984 (1) SA 687; S v Motaungu & Ors 1990 (4) SA 485 and S v Khumalo & Ors 1991 (4) SA 3120.

The requirements laid down in these cases is that for the doctrine of common purpose to find application the following factors must be established:

Each individual in a common purpose case is judged on his own mens rea.

The actus reus of the accused, on which common responsibility for a murder is founded consists, not necessarily in an act which is casually linked with the death of the deceased but solely in an act by which he associates himself with the common purpose to kill.

In S v Ndlebu & Anor 1985 (2) ZLR 45 (SC), the Supreme Court held that in order to afford himself a defence to the crime with which the principal offender is a charged a socius criminis who is present, abetting in the commission of the crime, must do more than merely withdraw from the scene of the crime, in particular he must do something positive to avert the danger which his recklessness has brought about. Withdrawal by an accomplice from the scene of a murder in circumstances which do not amount to a defence may be a major factor only in extenuation.

In this matter we are satisfied that the requirements of common purpose are met.  The accused by his own admission was involved in the initial unlawful attack of the deceased.  He was present when Mihlayenkosi attacked the deceased.  When accused purported to intervene and stop the fight, deceased had evidently sustained fatal injuries.  The accused would therefore be criminally liable on the basis of common purpose as a socius criminis.

We have already indicated that on the evidence presented before the court, the state did not prove beyond reasonable doubt an intention to kill.  The accused must benefit from the doubt in that respect.

Verdict

The accused is found not guilty on the charge of murder as defined in s47 (1) of the Criminal Code, but guilty of culpable homicide.

Sentence

In assessing an appropriate sentence the court shall take into account all the mitigating factors of the case as outlined by accused’s defence counsel.  The accused is a youthful offender who was 20 years old at the time he committed the offence.  He is an artisanal miner.  He has a wife and one minor child.  He has the usual family responsibilities.  At the time of the commission of the offence he had not had a brush with the law.  Accused has already spent 2 ½ years in remand custody awaiting trial.  Accused has already appeared in a Magistrates’ Court on an assault charge.  He was sentenced to pay a fine of $200.  The accused has therefore been punished to some extent in relation to this matter.  To his credit the accused did not abscond to avoid trial.  He has assisted in the finalisation of the matter by subjecting himself to the criminal justice system.  There is an indication that during the assault which subsequently led to the death of the deceased, accused attempted to restrain his co-accused from further assaulting the deceased.  The accused did not however, show real remorse throughout the proceedings.  The accused sought to mislead the court by dissociating himself from the conduct which led to the death of the deceased.  What has not escaped this court’s notice is that accused is the one who set into motion events that led to the tragic death.  For no apparent reason he slapped the deceased with open hands on the face.  His conduct led his co-accused to join in the assault.  The court notes that the injuries reflected in the post mortem indicate that attack was savage and brutal.  The accused was aged 20 years at the time assault. They attacked a 77 year old defenceless man.  The accused and his companion walked away from the scene without rendering any assistance to the injured man.  This court has repeatedly stated that violence will not be countenanced by this court as a method of dispute resolution.  Far too many lives are being needlessly lost through acts of violence which could be voided.  It is this court’s view that the accused has learnt his lesson at any early age.  The sentence this court shall impose shall be rehabilitative to encourage the accused to mend his ways and set his life on a new path.

In the circumstances and for these reasons the following is considered an appropriate sentence.

“Accused is sentenced to 5 years imprisonment of which 3 years is suspended for 5 years on condition accused is not within that period convicted and sentenced to an offence of which violence is an element and for which he is sentenced to imprisonment without the option of a fine.

Effective sentence 2 years”.

National Prosecuting Authority, state’s legal practitioners

Dube-Tachiona & Tsvangirai, accused’s legal practitioners