State v Tawanda Hlahla

### Preamble
1
HMT 71-20
CRB 38/20
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STATE

versus

TAWANDA HLAHLA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 13 October 2020 and 15 October 2020

Criminal Trial

ASSESSORS:  1. Mrs Mawoneke

2. Dr Sana

M Musarurwa, for the State

Ms Muzandaka with K.G Muraicho, for the accused

MUZENDA J: The accused is facing charges of Murder. The State alleges that on 12 March 2020, at Muzondakaya Village, Chief Musikavanhu, Chipinge, accused caused the death of his elder brother Sifiso Hlahla by striking him with a machete once on the head.

The accused pleaded not guilty and prayed that he be found not guilty and be acquitted. In his defence outline he denies having an intention to kill his brother. He attributed the death of the deceased to what he termed cumulative factors based on witchcraft. He blamed the deceased’s lack of cooperation to resolve the problems faced by the family relating to ritually cleanse the family homestead and perform cultural rites for the departed parents. On the fateful day he attacked the deceased in the heat of the moment and did not aim at a particular part of the deceased’s body, he intended to immobilise the deceased so that deceased will not disrupt the traditional healers whom he intended to go and call to come and cleanse the homestead. The accused believed that deceased was bewitching him and causing him to be poor.

The defence outline of the accused does not dispute all the material facts as summarised by the State in its papers. At first the prosecutor in this matter indicated that all the evidence of the State be admitted in court in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] with the exception of the evidence of the investigation officer Mr Tinashe Nyamasunda. However given the nature of accused’s defence delving into a history of witchcraft, it was agreed between the State and defence that at least one of the family members testify in court. Noel Hlahla subsequently testified and the evidence of Tinashe Nyamasunda was admitted in terms of s 314.

The undisputed evidence before this court was to the following effect:

the accused and deceased were siblings.

on 12 March 2020, accused found the deceased at home and an exchange of words took place relating to the conduct of the accused.

there was acrimony between deceased and accused.

Noel Hlahla procured a machete and gave it to the accused before the accused assaulted the deceased.

accused fatally struck the deceased on the head and did not assist him.

deceased was pronounced dead by the medical staff at the clinic.

SUBMISSIONS BY COUNSEL

Mr M Musarurwa submitted that the correct approach in a case like the one before us was correctly spelt out in the case of S v Robert Mugwanda SC 19/2002 where the Learned Chief Justice cited the case of S v Sigauke 1967 (1) SA 556 (A). He submitted further that although there is distinction between this case and that of Mugwanda supra in that the latter involves stabbing, the principle of mens rea is relevant. Where there is no direct evidence on the mens rea of the accused and the intention was not to kill the deceased but to assault him, under such circumstances, the mens rea of the accused has to be inferred from the circumstances of the case. The State Counsel further added that the court has to look at the weapon used to assault the deceased, the degree of assault and the injuries sustained, the part of the body injured as well. The accused in this case, it was averred by the State, used a machete and brutally attacked the deceased. He then threw away the machete. Accused targeted the head and the post-mortem confirms that deceased died of head injury. The State further added that the injuries sustained by the deceased were serious to show that whoever caused them had the necessary intention to kill the deceased. To the State, accused confessed that he used severe force, and that he was reckless in his conduct.

On the aspect of accused’s defence of provocation, the State submitted that it constitutes partial defence to a charge of Murder in appropriate circumstances spelt out in s 239 of the Code. However the State added that the circumstances outlined by the accused are not sufficient enough to reduce a charge of Murder to Culpable Homicide and it urged the court to reject the defence of provocation. The State prayed for a conviction of the accused of Murder with actual intent.

On the other hand, the accused’s counsel submitted that the accused was provoked by the deceased’s remonstrations about his property and he lost control and ended up striking the deceased with the most accessible tool accused could use, the machete. To the accused, deceased’s remonstrations were not made in good faith, but were a mockery, scornful and sneering at accused when deceased knew very well that accused was not the one to conduct the ceremony. Deceased did not want to perform the rituals in his position as the eldest son.

The defence went on to describe the situation attaining at the family’s homestead as highly volatile as accused was emotionally drained, traumatised and frustrated resulting in him nursing a grievance against the deceased. The exchanges between deceased and accused, the defence submitted further, triggered the sublime underlying issues which propelled accused to act in the manner he did.

The defence counsel urged the court to take into account the whole background of accused’s history stretching from witchcraft, dysfunctional social life of accused allegedly attributed to evil spirits and non-cooperation of the deceased. The treatments he received from traditional healers and the inaction he received from the deceased. To the defence, the accused cumulatively suffered a psychological trauma which had evolved in him for years. The defence counsel cited the matter of S v Ncube HB -80/181where the accused struck his step mother with a knobkerrie on the basis of provocation.

On the aspect of intension Ms Muzandaka submitted that the accused lost self-control and lacked mens rea to kill his brother, nor did he foresee that his actions would result in the death of the deceased. The excuse of deceased’s wife and Noel from the scene, the defence submitted was for the accused to have an intimate discussion with the deceased and not to isolate himself so that he would murder the deceased. The accused prayed that given all these factors he should be acquitted.

ANALYSIS OF THE FACTS AND THE LAW

The defence raised the defence of provocation on the part of the deceased. The facts agreed upon by both the State and the defence are that at around 1930 hours, accused arrived at where the deceased was in the company of Noel Hlahla deceased’s youngest brother. The accused approached deceased and deceased enquired from the accused, why he had slaughtered his goat. The accused, from the evidence of the State witnesses, did not respond to the deceased’s enquiry. Instead the accused instructed deceased’s wife, Tafadzwa Mafuya to go into the house, he also asked Noel Hlahla to move away from the deceased. Both Tafadzwa and Noel complied. The accused took a machete from a vehicle trailer nearby and struck the deceased on the head.

We are not satisfied that the accused excused Tafadzwa and Noel from the scene, to enable him to have an intimate discussion with the deceased. Accused had an ulterior motive in driving away the two in order to isolate himself and attack the deceased. We are strengthened on this conclusion by the fact that once Noel moved 6 metres away from where deceased was, accused launched his attack. The accused’s counsel impressed the court to find that the accused exploded out of cumulative anger regenerated by the confrontation of the deceased. From the evidence led by the State the enquiry made by the deceased did not amount to provocation in our view, it was actually supportive of the accused’s idea of finding ways to cleanse the home. The behaviour of the accused on the day in question towards the deceased cannot be said to be abrupt and done in the heat of the moment. Instead it was premeditated by the fact that his young brother Noel, had gone to borrow a machete, whose purpose we are not told, except that it was conveniently at the site where accused used it to attack the deceased. We are also safely assured that the goat which the accused slaughtered for his child’s birthday belonged to the deceased, and the accused was incensed by deceased when the latter asked him why he had slaughtered his goat. It is the conduct of the accused which can be described to be provocative not that of the deceased. We fail to find any basis for the accused to have lost his temper in these circumstances, we find that it was grossly unreasonable for him to lose his self-control if he did so, objectively there was not sufficient provocation. We therefore dismiss the accused’s defence of provocation (See the matter of S v Chigova SC 234/95, per Ebrahim ja)

The next issue for determination is whether the accused intended to kill the deceased?

As well enunciated by Chidyausiku cj in the matter of S v Robert Munganda supra the question of intention can be well deduced from the facts and circumstances of the matter. These aspects among others include but not exclude, the weapon used by the accused, the part of the body injured and the gravity or seriousness of the injuries sustained by the deceased.

As already encapsulated hereinabove, the accused strongly felt that the deceased was the nemesis to his problems in life. He was close to Noel, his young brother, both felt that deceased did not like to resolve the problems at home. Noel and the accused, in our view sought for the machete and strategically placed it in the trailer at the homestead. Accused provocatively slaughtered deceased’s goat and upon deceased confronting the accused, accused got an opportunity to settle his matter with deceased by fatally striking him. As we have already mentioned herein, the attack on the deceased was premeditated, well planned and well executed. The accused dispersed the witnesses, drew near to the deceased and intuitively chose the head of the deceased, precisely the back of the neck as his target. He used an extremely lethal weapon on an excessively vulnerable part of the body and delivered the blow. The deceased groaned in acute pain and the accused literally left deceased to die. He ordered Noel Hlahla to leave the place, in case Noel would render assistance to the deceased. If Noel was going to resist the instruction he was warned of dire consequences.

The injuries sustained by the deceased at the back of his head apparently were gruesome and led to his demise. From all the facts cumulatively considered herein, we unanimously found that accused intended to kill the deceased and using a machete, he struck deceased on the head and killed him. The accused is found guilty of murder with actual intent in contravention of s 47 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]

Sentence

In assessing the appropriate sentence, the court will take into account the submissions made on behalf of the accused and the aggravating features advanced by the State.

The accused is a youthful offender, without any previous record. He has one minor child. He strongly believed in traditional matters and felt that his problems in life were authored by his brother whom he believes was a witch. To the accused, the deceased was not cooperative in resolving the nagging problems confronting the entire family and he feels that on 12 March 2020 he was put to the test by the deceased.

On the other hand the post-mortem report revealed that the cause of death was due to the head injury. Evidence before the court shows that the cut extended from the back of the head to the right ear. There is no doubt that this was a premeditated brutal killing designed to eliminate deceased from the position of elder brother and that accused would take over the role. It is apparent from the facts before the court that the accused person has no respect for the sanctity of human life. He was ready to kill a defenceless and innocent brother solely in order to resolve family problems. When deceased remonstrated and reminded him to be responsible he kills him. The aggravating features in this matter well outweighs the mitigatory aspects and the use of lethal machetes has become prevalent and subjects society to unbearable apprehension.

Accordingly the accused is sentenced as follows:-

25 years.

National Prosecuting Authority, State’s legal practitioners

Mugadza Chinzamba and Partners, accused’s legal practitioner