THE State V Wisdom Mpilwenhle Ndlovu

### Preamble
1
HB 262/22
HC (CRB) 135/22
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THE STATE

Versus

WISDOM MPILWENHLE NDLOVU

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J with Assessors Mr O. Dewa & Mr E. Mashingaidze

BULAWAYO 6, 7 & 11 OCTOBER 2022

Criminal Trial

Ms T. C. Mujokoro for the state

L. Z. K. Dube for the accused

MAKONESE J:	On the 1st of June 2019 the accused arrived at Silver Sands Lodge, Bulawayo around 20:00 hours.  He was in the company of a male adult.  Accused booked room 19 for one night.  Accused did not immediately take occupation of the room.  He proceeded to a strip club in the city where he met the deceased Patience Ndlovu.  Accused procured the services of the deceased, a sex worker.  The two were sexually intimate in the club before they left for Silver Sands Lodge.  Accused bought a 750ml bottle of Vodka with ice and drinks before proceeding to the lodge.  On arrival at the lodge accused drank alcohol and smoked marijuana.  The deceased also consumed some undisclosed quantity of alcohol.  The accused had sexual intercourse with the deceased.  During the process deceased’s lucky charm which she had around her waist broke.  Deceased was unhappy.  The two slept.  During the morning deceased said she was leaving.  She expressed her unhappiness about the lucky charm which she said was crucial for her livelihood.

The deceased phoned a prophetess who had prepared the lucky charm for her and was told that the replacement cost was R100.  Accused agreed to replace the lucky charm.  Accused realized that his US$80 was missing. Accused demanded to search the deceased.  She refused.  Accused then tried to forcibly search the deceased.  She resisted.  A scuffled ensued.  Accused strangled the deceased.  She suffocated and died.  Accused stuffed her body under the bed.  He took her mobile phone and left the lodge.  Accused admits strangling the deceased.

Accused has been arraigned before this court on a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), it being alleged that on the 2nd of June 2019 at Silver Sands Lodge, Bulawayo, accused person strangled Patience Ndlovu until she lost consciousness intending to kill her or realizing that there was a real risk or possibility that his conduct may cause the death of Patience Ndlovu.

The accused denied the charge of murder.  He tendered a limited plea in respect of the lesser charge of culpable homicide.  The State rejected the limited plea and the matter proceeded to trial.

The State tendered an outline of the state case summerising the events leading to the death of the deceased.  Accused filed a defence outline which reads in part as follows:

“ …

3.	The accused will state that he did not know the deceased prior to the 2nd of June 2019 but had procured her services for sex at Bulawayo’s Private Lounge Night Club.

4.	The accused will further state that during the same morning whilst indulging in sex the two had consensual sexual intercourse and later that morning tattooed various inscriptions on each other’s bodies with red lipstick.

5.	The accused will further state that during the same morning whilst indulging in sexual intercourse with the deceased, he accidentally broke the deceased’s spiritual waist band and this upset her to the extent that the two had to call her prophetess whom she regularly consulted for spiritual guidance.

6.	The prophetess advised them that the accused would have to pay the sum of ZAR100 for its replacement and the accused agreed to this proposal.

7.	The deceased however remained upset even after the accused had agreed to pay ZAR100 and kept saying that the money charged by the prophetess was insignificant for what he had done.

8.	They however remained together as the accused had promised to buy more alcohol.

9.	The accused took a bath and upon dressing up thereafter, he realized that some of his money was now missing.

10.	Accused confronted the deceased and requested to conduct a body search and she refused.

11.	The accused then tried to forcefully conduct that search and a fight broke out between him and the now deceased who punched him several times and tightly grabbed his testicles.

12.	The accused in a fit of rage and in an effort to get deceased to release her grip on his testicles started choking her with his bare hands.

13.	It was not the accused’s intention to cause the deceased’s death but he was defending himself.

14.	Within a short space of time the accused realized that the deceased was now unconscious and then poured water on her intending to revive her.

15.	When he realized that the deceased was no longer responsive he searched her and took his money which he found hidden in her bra.  He also took away the cellphone.

16.	In a state of panic he shoved the body beneath the bed and fled from the scene.

17.	The resulting death was not planned, foreseen, or deliberate.  The accused was merely trying to protect himself from the deceased who was now causing him serious pain on his testicles.  …”

The state tendered a post mortem report compiled by Dr S. Pesanai at United Bulawayo Hospitals on the 4th of June 2019.  The pathologist examined the remains of the deceased and concluded that the cause of death was:

Asphyxia

Strangulation

Homicide

On 21 May 2021 the accused gave a warned and cautioned statement wherein he admitted strangling the deceased.  The accused’s confirmed warned and cautioned statement is in the following terms:

“…  I plead guilty to the charge of murder levelled against me.  I met the deceased at a strip club sometime in June 2019 and we had a mutual agreement of having sexual intercourse for the night for US$10, which I gave her for buying alcohol of her choice.  We then proceeded to have sexual intercourse on a couch inside the strip club, hence I bought a 750ml bottle of Vodka with ice and drinks in a bucket before heading to Silver Sands Lodge.  On arrival, we first drank alcohol and smoked a blunt of marijuana and danced to music which was playing on her phone.  We got freaky and played around with her lipstick, inscribed her a pentagon and she also drew me  temporary tattoos.  We then proceeded to sleep together and in the process a lucky charm on her waist which was reddish and blue was broken.  In the morning before she told me of her intentions of leaving, she told me that the lucky harm on her waist was her livelihood and her life depended on it and we called the woman who had prepared it for her and she charged R100 to prepare another one and we agreed that we would meet her later on during the day.  The deceased dressed up and I also did the same and immediately realized that US$80 which I had remained with from the previous night had disappeared.  I questioned her about the money and she denied it prompting me to search her, but she refused.  I tried holding her hand with the intention to search her and a scuffle ensued and she refused to be searched and was fighting back.  Being unsober, angry and feeling provoked I lost my temper and grappled her by the neck and choked her until she passed out.  I then found the money US$80 hidden in between the strip of her bra and a lace on top.  I poured water on her ad she did not wake up, I then panicked and stashed her body under a bed and left the room with her mobile phone which I later sold to a stranger in Mberengwa.”  (Underlining for emphasis)

The State case

The State opened its case by leading evidence from JOHNSON GWESHE.  He  was employed at Silver Sands Lodge at the relevant time.  On the 1st of June 2019 he was manning the reception.  At around 0940 hours the accused approached him and indicated that he was booked in room 19.  He asked for bath soap and a towel, which he handed over to him.  At approximately 1040 hours the accused left the lodge stating that he was going to get some lunch.  When the witness knocked off at 6pm the accused had not returned.  The following day, the witness was informed that a dead body had been found in room 19.  Accused person was nowhere in sight.  The witness indicated that the previous day before he checked off duty accused had extended his stay at the lodge for a further day.

MAGGIE MPOFU was the next state witness.  On the 3rd of June 2019 she reported for duty at Silver Sands Lodge.  She was employed at the lodge as a general hand.  When she went to room 19 she observed that the floor was wet.  It appeared as if someone had poured water into the room.  On a closer examination of the room the witness observed that there was a body under the bed.  The witness called out for help.  It was discovered that the deceased’s body was lifeless.  The witness detected the smell of alcohol in the room.

The evidence of the state witnesses was largely common cause and uncontested.  The evidence led by the State was not controverted by the defence.  We accept the evidence to be credible and reliable in all material aspects.

The State applied to have the evidence of the under-listed witnesses as it appears in the state outline to be admitted by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely Wellington Ncube, Elias Zowa, Sithabile  Mkhosi, Elvis Shava, Bukhosi Mbekezeli Ncube, Detective Constable Nkomo and Dr S Pesanai.

The State closed its case.

Defence case

The accused elected to give evidence under oath.  He adhered to his defence outline.  He conceded that the warned and cautioned statement and his oral testimony had certain contradictions.  Accused testified that he only strangled the deceased because she was pressing hard on his testicles.  He strangled her so that she would release her grip on him.  In his oral evidence accused testified that:

“So as I grabbed the other hand, she managed to free her hand and grabbed my testicles.  I felt pain and due to anger I ended up throttling her.  After throttling her she fell down and released her grip on me.  I thought she had fainted. …”  (Emphasis is added)

In his confirmed warned and cautioned statement the reason accused strangled the deceased was that he was provoked by accused’s alleged theft of his money.  In this own words he states that: “I tried holding her hand with the intentions to search her and a scuffle ensued as she refused to be searched and was fighting back.  Being unsober, angry and feeling provoked I lost my temper and grappled her neck and chocked her until she passed out.”

According to accused’s version in his warned and cautioned statement, the reason he strangled her was provocation.  Provocation is a defence raised in the warned and cautioned statement when the events were still fresh in the memory of the accused.  In his defence outline, accused proffers a new and an alternative version of events for the very first time.  The accused suggests that the deceased squeezed his testicles before he strangled her.  The facts of this matter are fairly straight forward.  The following facts are common cause and beyond dispute.

The accused strangled the deceased while they were booked at Silver Sands Lodge on the night of the 2nd of June 219.

When accused realized that the deceased died, he stuffed her under the bed.

After the strangulation the accused stole the deceased’s mobile phone which he later sold to a stranger in Mberengwa.

The accused left the lodge and did not report the matter to law enforcement authorities or anyone else

Accused was arrested after being on the fun for close to two years on the 20th May 2021 following a tip-off.

Submissions by the accused

The accused submitted that the State had failed to prove the accused’s guilt on a charge of murder beyond reasonable doubt.  Accused avers that the explanation proffered in his defence is reasonably possibly true.  It is argued that the State failed to disprove the accused’s version of events leading to the death of the deceased.

The first defence raised by the accused is that of self defence.  Accused avers that when he strangled the deceased she had tightly gripped his testicles during a fight.  Accused avers that this version of events is plausible and ought to be accepted by the court.  Accused argues that at the time the offence was committed he lacked the actus rea and mens rea required to hold him liable for the offence.  The second defence raised by the accused is that of provocation.  The accused avers that he was provoked by the deceased when she stole the money amounting to US$80.  Accused alleges that he was angry when he strangled the deceased.  This comes out of the accused’s own oral testimony in court.  Accused argues that he did not have the intention to bring about the death of the deceased.  He argues that he did not foresee death as a real possibility when he chocked the deceased to death using his bare hands. Accused argues that he should be found guilty of culpable homicide.

Submissions by the State

The State submits that accused was at all material times aware of what he was doing.  Accused states that he deliberately held the deceased by the arm which indicates that he tried to engage the deceased in a bid to recover his money.  This conduct, the State argues is not consistent with loss of self-control.  The State submits that for the defence of self defence to succeed the facts must show that the accused was faced with an imminent and unlawful attack. It must be shown that the accused retaliated proportionately, to the unlawful attack.  The State argues that in assessing the defence of person, the court must not take an arm-chair approach.  The court is urged not to judge the conduct of the accused with hind sight.  The State avers that the court should establish whether all the requirements of self defence have been satisfied.  As for provocation the requirements under s239 of the Criminal Code must be established.

Analysis of the evidence of the law

Self defence

In his defence outline and oral evidence accused told the court that when he confronted the deceased over the missing money the deceased became aggressive and grabbed him by his testicles.  This caused him extreme pain and led him to lose self-control.  Under cross-examination accused reiterated that the sole reason for attacking the deceased was to defend himself.  This line of defence is missing in the accused’s warned and cautioned statement.  This inconsistency is glaring and goes to the root of the matter.  The accused did not plead the defence of self defence in his warned and cautioned statement.  No reason was given why accused would not raise this vital piece of this defence of self-defence.  This court makes a specific finding that on the facts presented to court the defence of self defence is an afterthought raised only for the purpose of trial.  The allegation that accused was grabbed by the testicles is a fabrication. On the law, the defence of self-defense is codified in our law under s 253 of the Criminal Code.  In terms of this section the following requirements must be met.

there must be an unlawful attack

that attack must be directed upon the accused person or upon a third party

the attack must have commenced or imminent

the action taken must be necessary to avert the attack.

See:  S v Banana 1994 (3) SA 859 (A) and S v Ngomane 1979 (3) SA 859 (A)

The defence of self defence was also discussed in S v Lamola HB-144-15

It is clear that in this matter the defence of self-defense was never raised by the accused when he gave his warned and cautioned statement.  It was an after-thought.  The accused was clearly building his case as the trial commenced.  The fact that the accused gave different reasons for attacking the deceased indicates that the accused lied and sought to mislead the court.  The court therefore, rejects the defence of self-defense as a fabrication.

Provocation

Section 238 of the Criminal Code provides that provocation shall not be a defence to crimes other than murder.  Section 239 then elaborates that the defence of provocation may be a partial defence on a charge of murder.  It is a partial defence, if after being provoked, and as a result of provocation, the accused does not have the intention or realization that his conduct may cause the death of his victim.  In this matter the court accepts that the accused was provoked by the deceased when she stole his money.  We accept that the accused was angered by the theft of the money.  This is confirmed by the accused’s warned and cautioned statement.  The court is alive to the fact that the accused did indicate that he was aware of what was going on around him at all material times.  He must have realized that his conduct in throttling the deceased could lead to the death of the deceased.  The accused confirmed that after throttling her, the deceased collapsed to the ground.  He thought she had fainted.  He poured water on her body and noticed that she was unresponsive.  He says he panicked and stuffed the body under the bed.  He left the lodge and went into hiding for two years before his arrest.  In the circumstances the defence of provocation is only mitigatory and is not a defence on a charge of murder.

Whether the State proved its case beyond reasonable doubt

It is trite law that the State bears the onus to prove the guilt of an accused beyond reasonable doubt.  In R v Difford 1937 AD at p370 the court laid down the position as follows:

“No onus rests on the accused to convince the court of the truth of his explanation, even if that explanation, be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is false.  If there is any reasonable possibility of that explanation being true, then he is entitled to an acquittal.”

It is our view that the State succeeded in proving its case beyond reasonable doubt.  There is no direct evidence in this matter except the evidence of thee accused.  If the court accepts that evidence the following conclusions can be made:

the accused strangled the deceased following an altercation

the accused must have foreseen and did realise that by chocking the deceased in the manner he did he would bring about the death of his victim

the accused fled the scene after committing the offence and hid the body under a bed.

the accused not only fled the scene but stole the deceased’s phone to avoid detection

the accused gave false names and address at the lodge, and was arrested two years later following a tip-off.

Disposition

From the totality of the evidence and the admissions by the accused, this court is satisfied that the accused did bring about the death of the deceased.  This court is indeed satisfied that the accused did have a realization that his conduct could bring about the death of his victim.  The accused continued with his conduct regardless of the consequences.  Accused’s guilt on a charge of murder is therefore established beyond reasonable doubt.

In the result, accused is found guilty of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act.

Sentence

The accused has been convicted of a very serious crime.  This was a callous and brutal murder committed in very unfortunate circumstances.  The accused was a youthful first offender at the time of the commission of the offence.  He was aged 23.  He is now 26 years old.  The accused was motivated by anger and evidently sought to recover his stolen money at all costs.  This court takes into account the personal circumstances of the accused as articulated by his defence counsel.  The court notes that accused’s moral blameworthiness was very high.  After killing the deceased he stuffed the body under a bed, stole her phone and left the scene of the crime.  The accused went into hiding for 2 years.  Upon his arrest the accused admitted the offence and did not seek to distance himself from the murder.  This court is however of the view that accused has not shown any remorse or contrition.  The delay in the finalization of the case is entirely the accused’s fault.  This should not count in the accused’s favour.  These courts have repeatedly indicated that the loss of human life is taken seriously and those that cause the death of others should expect stiffp custodial sentences.

In the circumstances the following is considered an appropriate sentence.

“Accused is sentenced to 15 years.”

National Prosecuting Authority, state’s legal practitioners

Cheda & Cheda Associates, accused’s legal practitioners