The State v Gorden Mhlanga

The accused, Gorden Mhlanga, was charged with the murder of his 17-month-old daughter, Anzilla Mhlanga. The accused had long-standing marital problems with his wife, Tendai Sithole, whom he routinely assaulted and accused of infidelity. After forcing his wife to leave the matrimonial home, she went to stay with her parents. On 20 May 2018, at around 8pm, the accused armed himself with a machete and crept to the Sithole family homestead under cover of darkness. Without announcing his presence, he launched a surprise attack on the family members seated around a fire. He struck Tendai Sithole, who had Anzilla strapped to her back, with the machete. One of the blows struck the child on the head, causing a severe head injury. The accused also assaulted other family members before fleeing when he noticed an approaching vehicle. Anzilla was rushed to St Peter's Mission Hospital where she died from her injuries after 5 days of suffering. The post-mortem revealed a 10cm laceration on the temporal occipital region, 4cm deep, with visible fractured scalp, meningitis, and possible subdural hematoma. The accused initially pleaded guilty but later denied the charge, claiming he did not intend to kill and was only defending himself.

• Whether the accused had actual intention to cause the death of the deceased
• Whether the accused had constructive intention (dolus eventualis) in causing the death of Anzilla Mhlanga
• Whether the accused should be convicted of murder or culpable homicide
• Application of section 57(b)(ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] regarding causing death of someone other than the intended victim

The accused was found guilty of murder with actual intent and sentenced to 25 years imprisonment.

A person is guilty of murder with actual intent where: (1) they deliberately plan and execute an attack with a lethal weapon intending to kill the primary victim; and (2) they are aware that their conduct involves a real risk or possibility of causing death to another person (other than the intended victim) but proceed regardless. Where an accused strikes a person with a deadly weapon knowing that person is carrying a child, and the blow kills the child, the accused has the requisite mens rea for murder, as they realized their conduct involved a real risk of causing the child's death but continued regardless. The fact that the child was not the intended victim does not reduce the offense to culpable homicide where the accused had actual awareness of the child's presence and the lethal nature of their weapon and actions.

The court observed that it wondered why the accused was not charged with attempted murder in respect of the other members of the Sithole family whom he assaulted with the machete, given that he clearly had the requisite intention to kill them as well. The court also commented that in modern society, people should resort to peaceful means of resolving disputes rather than using violence, especially against vulnerable people like wives and minor children. The court noted that the accused would experience general abhorrence from his community and society at large for his actions.

This Zimbabwean case is instructive for South African criminal law jurisprudence on several points: (1) It demonstrates the application of the doctrine of transferred intent or dolus eventualis where an accused kills someone other than their intended victim; (2) It illustrates how courts assess premeditation and planning in murder cases, particularly in domestic violence contexts; (3) It reinforces the principle of sanctity of life and serious consequences for killing vulnerable victims, especially children; (4) It addresses the rejection of self-defense claims where the accused was the clear aggressor; and (5) It demonstrates judicial condemnation of domestic violence and the use of violence to resolve domestic disputes. While this is a Zimbabwean case, the legal principles applied mirror those in South African criminal law regarding murder, intention (both dolus directus and dolus eventualis), and the treatment of domestic violence-related homicides.