THE State V Tapelo Ndlovu

### Preamble
1
HB 240/22
HC (CRB) 105/22
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THE STATE

Versus

TAPELO NDLOVU

IN THE HIGH COURT OF ZIMBABWE

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

BULAWAYO 8 SEPTEMBER 2022

Criminal Trial

K. M. Nyoni for the state

A. J. Dhliwayo for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 1st day of April 2019 and at house number A 5736 Old Pumula the accused person unlawfully caused the death of Mthokozisi Phakathi by stabbing him with an Okapi knife, 3 times on the left side of the chest and once on the right side of the chest, thereby causing his death.

The following were tendered into the court record:-

State summary

Defence outline

Post mortem report

Accused’s confirmed warned and cautioned statement

They were all duly marked.  The post mortem report gives the cause of death as (1) hypovolemic shock; (2) heart injury; (3) stab wound

The evidence of the following witnesses was admitted into the court record as it appears in the state summary;

Hellen Sibanda

Vincent Ngwenya

Douglas Muganiwa

Dr Roberto Lara Diaz

The state lead viva voce evidence from 2 witnesses, that is, Dumisani Ndlovu and Martha Mpofu.  Accused gave evidence for the defence.  The facts of this matter are largely common cause.

Accused, Blessed Dube and the deceased went to deceased’s home at night after leaving a bar and a shebeen where they had been drinking beer.  They got to deceased’s home and a misunderstanding occurred over a cellphone that allegedly belonged to the accused.  Accused was of the view that deceased had stolen his cellphone but deceased insisted he had not and suggested that perhaps the cellphone was left at the shebeen.  The two went out of the house with deceased going out first according to the 1st state witness, Dumisani Ndlovu, but accused’s version is that he is the one who went out first.  It appears to the court that it is immaterial though as to who went out first.  According to the first state witness, deceased did not leave the house with a knife.  It is the accused who did.  However, the accused insists that it is deceased who went out with a knife.

What is critical to the determination by this court though is what then transpired outside.  Dumisani Ndlovu says accused dragged deceased by the collar and later stabbed him.    Accused says it is the deceased who dragged him by the collar and that he fought with deceased for the knife until when he took it.  On what transpired outside, the court will accept the version of the 1st state witness as being the true version of what transpired for the following reasons:

If accused went out first he was going to his home as he alleges the environment in the house had since become toxic causing him to leave, there was therefore no reason for the fight that later ensued.

If deceased was the aggressor in the incident that occurred outside the house, since he once fell down, accused should have left and gone to his home.

After disarming the deceased of the Okapi knife as alleged by accused, there was no longer any danger to him warranting that he stabs the deceased in the manner that he did.

The witness told the court that there were 2 knives, deceased left his in the house and accused went out with his.

This court is inclined to believe the state witness because, he did not seek to paint his brother, the deceased in good light.  He told the court that deceased also possessed a knife on the day in question.  If accused also had a knife on the night in question, the only logical conclusion is that the knife he was using was his	Even if this court were to accept accused’s version of events, there was absolutely no justification for him to stab deceased in the manner that he did when deceased was no longer armed with anything.  Deceased was no longer a threat, even if he was, for argument’s sake, he was not armed in any way after the accused person had disarmed him.  Accused just acted in an unruly and violent fashion on the date in question with no justification at all in the circumstances that prevailed that night.  It is for these reasons that we find that accused did act wrongfully and unlawfully on the day in question.

The verdict

Accused stabbed the deceased 3 times on the left side of the chest.  He also stabbed the deceased once on the right side of the chest.  The left side wounds went into the heart as shown by the post mortem report that deceased died of a heart injury.  Accused definitely aimed at death.  Nothing else can be deduced from 3 stab wounds aimed at the left side of a chest with an Okapi knife, which, is in itself a lethal weapon.  It is for these reasons that accused is convicted of murder as defined in section 47 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23].

Sentence

The accused is convicted of murder.  He is a youthful 1st offender.  He showed contrition.  He has a poor family background in terms of societal norms and values and proper nurturing and upbringing.  He has spent almost 3 ½ years in pre-trial incarceration.  He is a school dropout.  However, these courts frown at the loss of life through violence.  Day in day out, people are butchering each other to death over the most flimsy of disputes.  A sentence that concietizes society on the sanctity of life should be considered in all circumstances where a life has been needlessly lost through violence.

However, this does not mean that the court should ignore or turn a blind eye to the glaring mitigatory features in such a case.  A sentence that meets the justice of a case should consider all the relevant factors, i.e accused’s personal circumstances including his unfortunate background, his age at the time of commission of the offence, which definitely affects his maturity and moral judgment, as well as the fact that he has spent a considerable amount of time awaiting trial.  The court should discount the 3 years off from the appropriate sentence.  He has also shown contrition in that on being cross examined on a number of times he accepted wrongdoing and apologized to the court.  An appropriate sentence would be in the region of 15 years.  It is for these reasons that accused will be sentenced as follows:

The accused is sentenced to 12 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

T. Hara & Partners, accused’s legal practitioners