THE State V Mlindeli Siziba AND Mthulisi MOYO

### Preamble
1
HB 134/25
HCBCR 2930/25
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THE STATE

Versus

MLINDELI SIZIBA

And

MTHULISI MOYO

HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mr. T.E Ndlovu and Mr. J. Zulu

HWANGE 26 JUNE 2025

Criminal trial

M. Dube, for the state

D. Ncube, for the 1st and 2nd accused

KABASA J:	The two accused appeared before us charged with murder.  They both pleaded not guilty.

The state alleges that on 23 August 2024 at around 0100 hours the two accused and two others who are at large, together with the now deceased caught a monkey which they intended to sell to other gold panners who consume monkey meat.  They failed to find a buyer.  The now deceased suggested that they give the monkey away.  This annoyed the 2 accused and the others still at large.  The deceased was subsequently assaulted with logs and accused 1 stabbed him on the back with a knife.  He bled profusely, collapsed and died.  The accused fled from the scene but were arrested on 30 August 2024.

In his defence accused 1 explained that he had earlier on had a misunderstanding with the now deceased who had accused him of disrespecting him.  When they sought to sell this monkey but failed to find one Newsman who consumes monkey meat the deceased suggested that they give it away.  One Boyz was annoyed and started fighting with the deceased.  The deceased then attacked him ( accused 1), tripped him to the ground and strangled him.  He then got a knife from Boyz and stabbed the deceased in self-defence.

As for accused 2, his narration regarding the monkey was the same as accused 1’s.  He however said Boyz started fighting with the deceased and accused 1 tried to stop the fight.  He was a by-stander and never participated in the fight.

To prove its case the state produced the postmortem report, the 2 accused’s confirmed warned and cautioned statements and the knife that was used to stab the now deceased.

The postmortem report gave the cause of death as:-

1.	acute respiratory failure

2.	hemorrhagic shock

3.	hemopneumothorax

The pathologist noted the following marks of violence:-

1.	Right back penetrating wound (3 x 1 x 6 cm) located 4 cm from top of the head, 1 cm from mid back, 6 cm from the scapula.  Direction back to front, top to bottom, left to right.

2.	Penetrating wound (3 cm x 0,5 x 10) located 6 cm from midline, 7 cm from iliac crest direction top to bottom, back to front left to right.

3.	Abrasions on both hands and blood present.

The right pulmonary vessels were perforated and the right lung upper lobe was also perforated.

The knife used to inflict these injuries had the following measurements:-

Length of handle 	-	12 cm

Width			-	3 cm

Length of blade	-	16 cm

Width of blade		-	3,5 cm

Length of knife	-	28 cm

Weight			-	0,274 kg

Evidence was led from two witnesses.  The evidence of two witnesses was also admitted in terms of s 314 of the Criminal Procedure and Evidence Act (Chapter 9:07).  The two are the doctor who examined the deceased’s body and the police officer who attended the scene and ferried the deceased’s body to hospital.

From the evidence adduced, the following is common cause:-

1.	The deceased was in the company of the 2 accused and 2 others who are still at large when they decided to find one Newsman so they could sell a monkey to him.  Newsman consumes monkey meat.

2.	On failing to find Newsman the now deceased suggested that they give away the monkey.  This did not amuse the others and they started assaulting him.

3.	The now deceased fled but was pursued.

4.	The following day his body was found on the river bank with multiple deep stab wounds on the back and the buttocks.

The issue was under what circumstances was the deceased stabbed and what was the two accused’s role in it all.

The 2 witnesses who testified said there was a fire where they were and so visibility was not an issue.  One Boyz was the one who first assaulted the now deceased after he suggested that they give away the monkey.  One Nkanyiso also joined in.  Accused 1 had a knife.  The now deceased fled.  Accused 1 subsequently returned to where these witnesses were and the knife now had blood stains.  He then stated that he had just stabbed the deceased a little bit here and there but he was alright.

Accused 1 had remained at the fire when the others chased after the now deceased.  He followed later.  The deceased’s body was found lying face down by the river bank.

What is important to note is that none of the witnesses witnessed the stabbing.

Was accused 1 acting in self-defence when he stabbed the now deceased?  He had remained behind when the others chased after the now deceased.  There was no fighting at that fire and the deceased escaped in order to avoid the assault.

Accused 1 followed to where the others had chased after the deceased.  A person fleeing is no danger to anyone.  The ones pursuing are the ones who pose a danger to the one fleeing.

How then can accused I say he was defending himself when he is the one who pursued the now deceased? Why was he following the deceased after he had fled?

The now deceased was stabbed in the back.  He was therefore attacked from the back.  What self-defence is that when the victim is attacked from the back, a clear indication that he had his back turned towards the attacker.  The injuries caused were from multiple stabbings.

Section 253 of the Criminal Law Code (Chapter 9:23) provides that certain requirements must be met for one to successfully plead self-defence.  The very first requirement is that there must be an unlawful attack.

The evidence shows that the deceased was attacked for suggesting to his colleagues that they give away the monkey they intended to sell.  He fled from his attackers but was pursued.  Had they let him go he would have made good his escape.

Accused 1 was not under any attack.  He actually remained behind and only followed later.  What threat was he under from a person who was fleeing?

He used a knife, not once but several times and stabbed the deceased at the back puncturing his lungs.

If the first requirement is not met that marks the end of the matter.  The other requirements can only be considered where it is found that there was an unlawful attack.

Why would one use a lethal weapon to stab a human being several times and aim at the part of the body which houses vital organs if the intention is not to kill?

Whether the intention was actual or legal is neither here nor there.  Murder is murder (S v Mapfoche S84-21).

Accused 1 sought to minimize what he had done by telling the 2 witnesses who they found at the place where they were looking for Newsman, that he had just stabbed the deceased a bit here and there but he was alright.  He knew the deceased was not alright.  The time it took after he followed and subsequently returned with a blood-stained knife could not allow for the fight he sought to suggest occurred between him and the now deceased.

Did accused 2 participate in the assault?  The first witness said he did not.  Although the second witness said he saw him use a log, the fact is all the people who were at the scene said there was a big fire and so visibility was good.  If accused 2 had used a log would the first witness have failed to see that?

Granted people may witness the same incident but give an account which is not exactly the same.  We however found it difficult to reconcile the 2 versions as there was nothing to suggest that the scene was so mobile such that 2 people witnessing the same incident would have failed to see the same thing.

Whilst s 196 A of the Criminal Law Code codified the doctrine of common purpose, there was nothing to suggest that accused 2 had a common purpose with these others nor that he must have appreciated that accused 1 would use a knife to assault the now deceased, especially given that accused 1 actually followed after the others had given chase to the deceased. The injuries which took the deceased’s life were inflicted by the knife used by accused1. Accused 2’s role in the assault was not clearly articulated.

We therefore decided to give accused 2 the benefit of the doubt and accordingly find him not guilty and acquitted.

However,the state proved its case beyond a reasonable doubt against accused 1 and he is found guilty as charged.

Sentence

You were 21 years old at the time the offence was committed.  You were and are still youthful.  Youthfulness is a strong mitigatory factor.

You are single but you have a 6 month old daughter.  Your mother passed on in 2018.  You therefore lacked the nurturing that comes with a mother’s presence especially in your formative years.

You only went up to Grade 7.

Aggravating is the factor that a life was unnecessarily lost.  You used a lethal weapon several times perforating the deceased’s lungs.

All the deceased had done was ask that you give away a monkey.  He died because of such a flimsy reason.

The use of knives is becoming worrisome and gold panners appear to take knives as the weapon of choice.

You left the deceased to bleed to death at a river bank.  You rendered no assistance and lied that he was alright thereby stopping those who could have assisted him from doing so.

You showed no contrition and tried to make yourself the victim.

The deceased’s father’s victim impact statement shows how your conduct devastated him.  He is still in pain at the loss of a son under such tragic circumstances.

People ought to respect the sanctity of life.  The courts have emphasized this time without number.  Life is a gift which ought not to be taken away at the hands of another.

At 21 you are not so young to deserve a reduction of an otherwise appropriate sentence.  There was nothing youthful in your conduct and there is nothing that stops a court from meting out an appropriate sentence where the circumstances call for such. This is one such case.

The presumptive penalty is 20 years.  We find no reason to depart from that.

Each one of you is accordingly sentenced to:-

20 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Legal Aid Directorate, accused’s legal practitioners