THE State V Thembelenkosini Mlotshwa

### Preamble
1
HB 161/25
HCBCR 3987/25
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THE STATE

Versus

THEMBELENKOSINI MLOTSHWA

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 8, 12 AND 29 SEPTEMBER 2025

Assesors: Mr T Sibanda

Mrs S Tshuma

Criminal trial

Ms DE Kanengoni assisted by Ms Mtukwa, for the state

Ms B. Khupe, for the accused

NDUNA J: The accused appears before the court on a charge of murder wherein it is alleged that on 1st January 2025 the accused stabbed the deceased one Khulekani Mjaho once on the stomach with an okapi knife, an AK 47 Press Button Knife causing the intestines to protrude intending to kill Khulekani Mjaho or realising the there was a real risk or possibility that his conduct may cause the death of the deceased and continued to engage in that conduct despite the real possibility. He pleaded not guilty to the charge.

It is further alleged that on the day in question that is the 1st day of January 2025, the deceased was at Old Pumula Shopping Centre, Bulawayo where he was drinking beer. The accused and the state witnesses were at the same spot. It was a holiday. The accused had a confrontation with the deceased where upon he stabbed him once with the said described knife and ran away. As a result of the stabbing the deceased was ferried to hospital from where he died as a result of the injuries suffered. A post mortem conducted showed that that deceased had succumbed to injuries described as: -

Haemorrhagic shock.

Abdominal visceral injury, and,

Callous stabbing.

On the other hand, the accused who denies causing the death of the deceased intentionally alleges that the deceased was the aggressor who attacked him with a plastic chair and attempted to stab him with the knife which he the wrestled from the deceased and caused the injuries which then led to the deceased’s death. He explains that it was the deceased who was armed with the knife and he sought to disarm him of the knife. In the ensuing struggle, the deceased was accidentally stabbed with the knife causing him the injuries from which the deceased met his death.

The state in a bid to establish its case against the accused led evidence from the following witnesses: -

Elias Dube, and,

Filda Mujaho

The evidence of the following witnesses was admitted as per the summaries thereof contained in the state’s summary of case: -

Pamela Ngwenya,

Sithulise Moyo,

Sunboy Dube,

Rutendo Sondo,

Collen Zvaizvai,

Enita Magumo,

Pedzapasi Ezie, and,

Dr I Jekenya

In pursuing its case against the accused the following exhibits were tendered into the record by consent of the accused: -

Exhibit 1 was the PM Report done of the deceased

Accused’s warned and cautioned statement as Exhibit 2

AK47 Button knife as exhibit 3,

Exhibit 4 was the certificate of weight for Exhibit 3

It is therefore very clear that the accused denies having been the owner of the knife which was used to induce the death of the deceased. He further denies that he stabbed intentionally the deceased whose death he alleges was caused by a mistaken stabbing as he tried to disarm him of the knife.

The evidence of the state is derived from the witnesses who observed the tussle between the accused and the deceased. It was during the morning of the day and they could see because visibility was very good. The evidence of the witness was very clear. The first witness stated that she saw the deceased who reprimanded the accused against following him. The deceased was observed taking a plastic chair and hitting the accused with the chair. At that moment the accused was observed extracting a knife from his person and stabbing the deceased once in the abdomen. Thereafter, the accused ran away. The evidence of the second state witness was also to the same effect. The witness observed the accused came to where the deceased was and the deceased was not happy. The deceased remonstrated with the accused for continuously following him. The deceased took a chair and struck the accused with the chair. At that moment the accused produced his knife and he stabbed the deceased and ran away.

The evidence is contrary to that what was stated by the accused. The accused stated that the deceased produced the knife and struck himself with a chair. They then struggled together with the accused holding on to the knife that had been produced by the deceased. He further stated that as they pulled the knife, the deceased was then stabbed with the knife, and the accused ran away.

The story as given by the accused is difficulty to comprehend. It is that they held the knife together and started pulling the knife. The knife according to him was being pulled towards the accused by the accused and was being pulled towards the deceased by the deceased. One wonders how it could have stabbed the deceased in the manner he was stabbed because there was no time it was pulled towards the deceased. The stab wound was very deep as it entered the person of the deceased.

Further, we have the two witnesses who described in similar details what they saw as the course of the fight between the accused and the deceased. They observed the deceased taking issues with the accused who appeared to be persistently following the deceased. The deceased did not take out any knife as alleged, but hit the accused with a chair. The accused was observed taking out the knife and stabbing the deceased and ran away.

It was in the morning and visibility was very good such that the witnesses could not have been mistaken on what they saw. It is therefore the court’s finding that the accused did stab the deceased with the accused’s own knife thereby causing his death.

In the circumstances, is the accused guilty of murder?

In the case of the State versus Yomence Chaitezvi and others HH163/20210 it was held that on a charge of murder, it must first be established whether the accused's action was the factual cause of the end result, viz. if but for his action, the deceased would not have died when he did and that it must also be shown that there was legal cause, viz. whether it was objectively foreseeable or within the range of ordinary human experience that the accused's action would lead to the death of the deceased.

In this case the accused stabbed the deceased. The stabbing was so heavy that the knife penetrated the body of the deceased deeply. It was a very dangerous knife which the accused had. His conduct suit the above wherein he stabbed the deceased so heavily that he caused his death.

The issue that remains for determination is whether the accused had an actual or constructive intention to kill.

The State vs Starboy Masave HB 27-13 -   it was held that the issue of intention is subjective. The law is well spelt out at page 110 of Prof Feltoe's, Guide to Criminal Law in Zimbabwe, that is;

(a) Actual Intention

Where accused desired death and death is his aim and object;

(b) Death is not the aim and object but accused continues to engage in an activity which he realises will almost certainly lead to death.

There can be no other conclusion which can be sustained on the facts of this case other than that the accused intentionally caused the death of the deceased. It follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that: -

(a)	either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b)	while pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.

In pursuance of the accused’s activity, the assault of the deceased, one stab wound was inflicted.   The degree of force and depth of the wound was severe.   While the stab wound was certainly inflicted to a vital part of the body there is conclusive evidence that it was deliberately aimed at that part of the body. And accused fled the scene upon landing the knife on the deceased. That shows his intention to achieve the death of the deceased.

He is accordingly found guilty of the murder with actual intent. It was in the morning and had not drank so much beer that drunkenness can not be attributed to his conduct.

He is accordingly found guilty of murder with the actual intent.

Sentence

The accused was convicted on one count of murder. He assaulted to death a person who had a wife and children. Then the Victim impact statement was compiled from a relative who is other than the wife. It was postponed so that the proper victim impact statement is collected. It has been learnt that the police have failed to locate the widow. It must be stated that the actual victim of an offence is the person form who the impact must be gotten from. This will make the intention of the law maker addressed. It is known that once a person is married it is his wife who is affected by his death. She will be looking after the children. How she is managing that will assist the court in arriving at the most appropriate sentence.

What we now know is that the accused stabbed with a knife a person who was fairly young in life. It is said he had two children who could not be located by the police. It follows that the deceased’s relatives are not assisting the children. It is now the responsibility of the woman and we do not know how he is managing.

The deceased died as a result of being stabbed. It follows that a weapon was used in the commission of the offence. That is a form of aggravation. There is nothing in the commission of the offence which invites the court to leniency. The deceased hit the accused with a plastic chair. Whilst that is an infraction of accused’s rights, accused had the knife already which he readily used. The offence was committed in the morning and hence he could not have been drunk. Further he had the knife with him which means he was ready to use it.

It is proper that accused be adequately punished.

The sentence that the court settles for largely depends on the accused’s degree of culpability or moral blameworthiness. The sentence should however be fair and just instead of excessive, savage and draconian. See S v Ngulube HH 48-02. The sentence should be blended with mercy because mercy is an element of justice itself. See S v V 1972 (3) SA 611 (A) at 614. But however, it must not be lost that another human being was killed. The court found out that the death was caused intentionally. There a sentence of 25 years imprisonment would have been fair in this case. But for the mitigation outlined above, that of 23 years’ imprisonment would be fair and just.

The knife is accordingly forfeited to the state for destruction.

National Prosecuting Authority, state’s legal practitioners

T. Hara and Partners, accused’s legal practitioners