THE State V Nsikalubi Mudenda

### Preamble
1
HB 63/21
HC (CRB) 08/21
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THE STATE

Versus

NSIKALUBI MUDENDA

HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr J Ndubiwa and Mr J.L.M. Zulu

HWANGE 17, 18 AND 19 MARCH 2021

Criminal Trial

Mrs M Cheda, for the state

Ms J Change, for the accused

MAKONESE J:	The 18 year old appeared in this court facing a charge of murder as defined in section 47(1) (a) of the Criminal Law (Codification and Reform) Act (Chapter) 9:23.  The accused denied the charge.  He tendered a limited plea with respect to the lessor offence of culpable homicide.  The state rejected the limited plea.  The matter proceeded to a full trial.

The facts of the matter are as follows.  On the 31st October 2019 and at around 1400 hours the accused arrived at a homestead belonging to 71 year old Johnson Nkomo (the deceased).  Deceased was alone at his homestead at the time.  Not realising that the deceased was around, and in the vicinity, accused climbed up a mango tree and started eating some mangoes.  The accused had very little time to enjoy the mangoes.  The deceased confronted the accused and enquired who he was and why he was eating his mangoes.  Accused responded by indicating that he was hungry.  Deceased assaulted the accused with a stick on his legs.  Accused was ordered to get down from the mango tree.  Accused got down.  At that stage accused armed himself with a machete and struck deceased on the hands and palms.  Accused then struck the deceased on the head several times using the machete.  Accused fled the scene leaving the deceased behind staggering, and bleeding.  Accused proceeded to wash his bloodied hands and face at the hot springs nearby.  At around 1700 hours that same day, 6 year old Langelihle, a granddaughter to the deceased got back from school.  She discovered the deceased’s body lying in a pool of blood.  The shocked juvenile rushed to Margaret Ngwenya’s homestead where she made a report.  It was confirmed that Johnson Nkomo had died from injuries sustained in a machete attack.  The deceased had two visible deep cuts on the head, broken wrists and cuts on the palms.

The state tendered an outline of the state case which now forms part of the record.  It shall not be necessary to repeat the entire contents of the state outline.  In his defence outline the accused stated that:-

“1.	That on the 31st day of October 2019 at around 6:00 hours the accused person after cutting some sticks in the village using his machete, he then went to the deceased’s orchard and started eating mangoes whilst on a tree.  The deceased came and asked him to get down whilst assaulting accused’s legs with a stick.

2.	The accused person then fell from the tree.  Accused continued assaulting him with a stick in one hand and an axe in the other hand.

3.	When deceased attacked the accused with the axe the accused then blocked him.  Accused picked up his machete then struck deceased with a machete several times on the hand and on the head.

4.	Accused struck the deceased in self defence as he was in imminent danger.

5.	Accused did not have the intention to cause the death of the deceased neither did he realise that there was a risk or possibility that his conduct might cause the death of the deceased.

Wherefore accused prays that he be acquitted of murder and that he be found guilty of culpable homicide.”

Accused’s confirmed warned and cautioned statement was tendered into the record by consent. On 6th of November 2019 and at Zimbabwe Republic Police, Hwange, the accused gave a statement confessing to the murder.  The statement was confirmed by a Magistrate at Hwange on 20th November 2019.  The state then tendered a Post Mortem Report compiled by Doctor Gregori, a Forensic Pathologist based at United Bulawayo Hospitals.  The report was prepared following an examination of the remains of the deceased.  The findings were filed under Post Mortem number 1110/1109/2019.  The cause of death is listed as:-

Meningo encephalic laceration.

Skull bone fractures

Chop wound on the head

The injuries observed by the pathologist were consistent with a machete attack.  The machete used in the attack was produced as an exhibit.  Its dimensions are as follows:-

Length – 56 cm

Width at its widest point 8 cm

Width at the narrowest point 4.3 cm

Weight 530 grams.

A stick recovered at the scene measuring 2.5 metres was entered into the record as an exhibit.  The stick was used by the deceased in assaulting the accused upon the legs.  The stick weighs 100 grams.  The evidence of two state witnesses Margaret Ngwenya and Doctor Gregori as it appears in the outline of the state case was admitted into evidence by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter) 9:07.

The State Case

LANGELIHLE NKOMO is a 6 year old juvenile.  She is a granddaughter to the deceased.  She gave evidence via closed circuit television.  She was clear and to the point.  She narrated that when she arrived home from school she found the deceased lying down.  She did not know what had happened to him.  She went and made a report to a neighbour Margaret Ngwenya who attended the scene.  Later her grandmother came and she was crying.  A number of other people were crying.  The witness observed that deceased’s hands had cuts.  He also had injuries on the back of his head.  The witness confirmed that the police subsequently came to attend the scene.  The witness confirmed that there was a mango tree at her grandfather’s homestead.  Crucially, the witness testified that several persons came to steal mangoes from her grandfather’s homestead.  The witness went on to say that her grandfather had been killed because of these mangoes.  The evidence of this witness was credible in all material respects.  There was no tinge of exaggeration in her evidence.

ORBIA MUDIMBA was the next state witness.  The witness gave a long and detailed narration of events leading to the arrest of the accused.  The witness is a mature adult aged 41 years.  The accused is his nephew.  The witness was not related to the deceased.  His home was some 7 km from deceased’s homestead.  On 31st October 2019 the witness received information that accused had been seen at Buse river,  at Chuziya village heading in the direction of the Chitogo area, Lusulu.  The witness has been a member of the neighbourhood watch committee for the past 17 years.  He suspected that accused was involved in the murder of the deceased.  In the company of other villagers, the witness tracked the accused and apprehended him at Amos Mudimba’s homestead.  Upon his arrest the accused admitted to having struck the deceased several times on the head and palms using  a  machete.  Accused pleaded for forgiveness and regretted his actions.  The accused led the witness to Esnath Munkuli’s homestead where they recovered a blood stained machete which was wrapped in a green jacket.  The accused was handed over to the police.  The evidence of the witness was compelling, credible and consistent in all material respects.

The evidence of CONSTABLE ROBERT MADHLAUTA was to the effect that he is a police officer stationed at Lusulu, Binga.  The witness was assigned to attend to the scene at deceased’s homestead.  At the scene, the informant, Qhiniso Mpofu identified the deceased.  The deceased was lying on his back.  He had two deep cuts on the head, broken wrists and cuts on the palms.  The injuries on the deceased appeared to have been caused by a sharp object.  The witness recovered a 2.5 metre stick with blood stains.  The witness did not observe any struggle marks at the scene.  There were heavy rains the night before.  This may have obliterated any struggle marks if they had been there at all.  The deceased’s body was removed and taken to the police station for conveyance to United Bulawayo Hospitals for a Post Mortem Report.  The evidence of this witness was straight forward and easy to follow.  The witness did not observe any axe at the scene.

LANGFORD ZIMBANGO was the next witness to testify for the state.  He is a member of the Zimbabwe Republic Police attached to the CID at Hwange.  He has 19 years experience in the police service.  He was the Investigating Officer in this case.  On 24th December 2019 he attended the scene of the crime.  The accused made certain indications.  The witness drew a sketch plan which was tendered into the record by consent.  The witness explained that it took a long time for them to conduct the indications as they had no transport to take them to Lusulu.  The witness confirmed that the accused made indications freely and voluntarily.  The accused did not mention that the deceased had produced an axe during the indications.  The evidence of this witness was largely of a formal nature.  The witness was credible in all material respects.

The state closed its case without leading further evidence.

DEFENCE CASE

The accused NSIKALUBI MUDENDA, elected to give evidence under oath.  At the material time he was aged 18 years.  He was unemployed and survived through peasant farming.  On the day in question he arrived at the deceased’s homestead.  His stated purpose was to help himself to some mangoes.  He was hungry.  Without seeking any authority to do so, accused climbed a mango tree inside deceased’s homestead and started eating the mangoes.  In essence the accused was stealing the mangoes.  The accused alleges that when deceased found him perched on the mango tree, deceased demanded to know who he was and what he was doing.  Deceased demanded that he get down the tree.  Accused states that deceased started assaulting him with a long stick measuring 2.5 metres.  The accused says he fell to the ground.  Accused alleges that the deceased was holding an axe in one hand and a long stick in the other.

The accused alleges that deceased tried to strike him with the axe and that he blocked him.   Accused states that he grabbed a machete which he had been using to cut some sticks in the bush.  He struck the deceased on the hands.  Accused then struck the deceased on the head several times.  As the deceased was staggering towards his house, accused states that he fled the scene.  In his oral testimony, accused stated that when he produced the machete his intention was to frighten the deceased.

The accused stated that he had fought with the deceased but indicates that he had managed to overpower the deceased.  The court takes judicial notice of the fact that deceased was a fairly old man aged 71 years.

The accused’s testimony was fraught with inconsistencies.  The accused gave varying accounts relating to the same incident.  He was very evasive and contradicted himself in material respects.  He admitted that he had overpowered the accused and yet he said it was still reasonable for him to launch a brutal attack on the deceased.  The accused was no longer in danger and could have simply left the homestead without attacking the deceased.

ANALYSIS OF THE EVIDENCE

The accused’s defence is one of self defence.  He contended that he was under attack from the deceased.  The accused alleged that the deceased was armed with an axe.  He alleged that on the other hand he held a stick.  At some point accused alleges that deceased grabbed his hands.  Accused  states that at that stage deceased held both the axe and stick in one hand.  Given the length of the stick it is inconceivable that deceased could have held both axe and stick in one hand whilst holding accused by his hands.  The court has to rely on the evidence of the accused himself on what transpired on the day in question.  Accused admitted that when he attacked the deceased there were no eye witnesses at the homestead.  The accused conceded that his version as contained in his warned and cautioned statement reflects an accurate account of what happened on the day.  In fact the accused admitted that what is contained in his warned and cautioned statement is what happened on that fateful day.  The accused sought to explain away why he left out the issue of the axe in his original statement by indicating that he was not given the chance to mention it.  The accused’s defence regarding the axe is clearly a matter of recent fabrication.  This line of defence must be rejected for the following reasons:

Accused never mentioned the issue of an axe to Orbia Mudenda upon his arrest.

Accused did not mention the issue about an axe in the confirmed warned and cautioned statement which was recorded a few days after the commission of the offence when events were fresh in his mind.

Langelihle Nkomo the 6 year old juvenile who first observed the deceased as he lay dead on the ground never saw an axe.  The witness did observe the stick which was next to deceased.

The attending detail Constable Mahlauta who recovered the stick from the scene was never told about an axe and did not see one.

The accused did not specifically mention to Constable Mahlauta that an axe had been used by deceased.

When accused made indications at the scene he never raised the issue of the axe with the Investigating Officer so that investigations could be carried out about its whereabouts.

This court makes a specific finding that the accused was not truthful when he stated that the deceased was wielding an axe.  The issue of the axe is first brought up in the accused’s defence outline at the commencement of the trial.  It is noteworthy that when the defence outline was tendered into the record the assertion was that the deceased was wielding a “hoe.”  The accused amended the word hoe and substituted it with the word “axe”.  It is clear that the issue of the axe was a red-herring meant to mislead the court.  We have no hesitation in rejecting the accused’s version as false.  It is not only false but palpably false.

In State v Mhlanga 1987 (1) ZLR 70 (SC), the court held that where the accused tells a lie this could in certain instances provide corroboration of his guilt.  The court laid down the criteria to be applied where a lie told by an accused could provide corroboration.  The criteria  is as follows:

the lie had to be deliberate

it had to relate to a material issue

the statement had to be clearly shown to be a lie by evidence other than that of a witness or an accomplice or by admission or by evidence from an independent witness.

In this matter, the accused has told a deliberate lie that deceased was wielding an axe.  The issue of the axe is a material issue.  The statement by the accused was shown to be a lie by independent of evidence. Langelihle Nkomo told the court that she saw a stick at the scene.  Orbin Mudenda, accused’s uncle was not given any report regarding an axe by the accused.  The two police witnesses who testified and attended the scene were never told about the axe.  If these two had been informed about the axe they would have investigated the matter.  It is clear that accused’s lies provide corroboration for his guilt. See: the case of State v Munsaka HB 27-20.

The Defence of Self Defence

The accused sought to rely on the defence of self defence.  He stated that he attacked the deceased with a machete because he was defending himself against an unlawful attack.  The law regarding self defence is codified under section 253 of the Criminal Law Codification Reform Act.  The elements of self defence are:-

an unlawful attack.

upon accused or upon a third party where accused intervenes to protect that third party.

the attack must have commenced or be imminent.

the action taken must be necessary to avert the attack.

the means used to avert the attack must be reasonable.

See: State v Jeri HH 516-17,

State v Mabvumbe HH 39-16 and

State v Muchairi HB 12-15.

It is our view that the defence of self defence is not available to the accused person.  The accused did not employ reasonable means to avert any attack that may have been launched by the deceased.  The accused used excessive force against a defenceless old man.  We conclude that accused did not act in self defence.  He deliberately attacked the deceased with a machete on the head several times thereby causing his death.

CONCLUSION

In assessing the evidence placed before the court it is clear that accused entered the deceased’s homestead with a machete.  He was in the process of stealing mangoes.  He was caught by the deceased in flagrento delicto.  It is not in dispute that the deceased used the stick to strike at accused’s legs to get him off the tree. Accused armed himself with a machete.  Accused struck deceased on the hands and upon the head several times. The injuries suffered as a result of the attack were serious.  The Post Mortem report confirms that deceased suffered a laceration to the brain, skull bone fractures, and chop wounds.  The inescapable conclusion is that given the nature of the weapon used and the fact that excessive force was used, the accused person must have foreseen that the use of such a weapon on the delicate part of the body would certainly result in the death of the deceased.  The accused nonetheless continued with the attack regardless of the consequences.  We are in agreement with defence counsel that the appropriate verdict is murder with constructive intent.  See: State v Robert Mugwanda SC 19-2002 and State v Mhako 2012 (2) ZLR 73 (H).

In the circumstances, and in the result, accused is found guilty of murder with constructive intent.

SENTENCE

In assessing an appropriate sentence this court will take into account all the mitigating features of the case as outlined by accused’s defence counsel.  Accused is a youthful offender now aged 18 years.  The accused is illiterate and only received formal education up to Grade two.  He was brought up in disfunctional family.  His parents broke up when he was only eight years old.   Accused admitted causing the death of his victim. He tendered a plea of guilty with respect to the lessor charge of culpable homicide.  Accused was not totally remorseful as he chose to mislead this court by raising a false defence.

This court notes with dismay that youthful offenders now roam around the country carrying machetes and terrorising innocent citizens.  The accused carried a machete into the deceased’s homestead.  He was caught stealing mangoes by the 77 year old deceased.  Rather than apologize, the accused became violent and struck the hapless old man on the hands and on the head several times.  The accused left the deceased to die and went into hiding.  Accused’s level of brutality is shocking and at his age ought to have respected the deceased who was way older than him.  Accused is turning out to be a recidivist.  He was convicted and sentenced for unlawful entry at Binga Magistrate’s Court on 9 July 2019.  Accused did not perform community service as ordered by the Magistrate.  Accused indicates that he is serving the 7 months suspended sentence at Hwange prison.  On 4 March 2021 whilst on bail on this murder charge accused was convicted of stock theft and sentenced to 9 years by a Magistrate at Binga.  The accused now appears in this court yet again on a more serious charge of murder.  The accused is developing a criminal subculture that needs to be nipped in the bud.  He deserves punishment that should deter him and other like-minded persons.  While it is trite that youthful offenders are generally treated with leniency due to their immaturity, where a youthful offender exhibits criminal tendencies that are repeated over and over, the court is entitled to treat such offenders like any other adult persons.  The accused forfeits the benefit of youthfulness by his conduct.   In the circumstances, and accordingly the following is deemed an appropriate sentence:

“Accused is sentenced to 18 years imprisonment.”

National Prosecuting Authority, state’s legal practitioners

Mvhiringi & Associates, accused’s legal practitioners