The State v Themba Ndlovu

On 29 March 2016 at Sompisi Bar in Mahatshula North, Bulawayo, the accused Themba Ndlovu was drinking beer and behaving in a drunk and disorderly manner, disturbing other patrons. The bar owner instructed security guard Taurai Rwizi to evict him. The accused left but returned carrying a quarter brick (weighing 1.435kg). The accused threw the brick at Taurai with excessive force, intending to assault him. The brick missed Taurai and struck the deceased, Belinda Mguni (a bar lady), on the back of her head. She collapsed and was taken to Mpilo Hospital, where she died on 4 April 2016 (though the judgment contains conflicting dates of 2 April and 4 April). The post-mortem revealed intracranial haemorrhage, skull fracture (6cm x 5.4cm), and head injury caused by severe force. The accused was apprehended at the scene by patrons. The accused was a 40-year-old first offender, orphaned at age 4, with only Grade 7 education, who worked as a tout at Egodini and was heavily intoxicated at the time.

• Whether the accused threw the brick that fatally struck the deceased
• Whether the accused acted with the requisite mens rea for murder
• Whether the doctrine of deflected blow (transferred malice) applies
• Whether the accused realized the real risk or possibility of causing death to someone other than his intended victim

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

Where an accused throws a dangerous weapon (a heavy brick) with excessive force in a crowded bar intending to assault one person, he realizes or ought to realize that there is a real risk or possibility of causing death to other patrons present. If despite this realization he continues with the conduct and kills someone other than his intended victim, he is guilty of murder with constructive intent under the deflected blow doctrine in section 57 of the Criminal Law (Codification and Reform) Act Chapter 9:23. The test for realization of real risk under section 15 has two subjective components: (1) awareness that the conduct might give rise to death, and (2) recklessness in continuing the conduct despite awareness of the risk. Both elements must be proved beyond reasonable doubt for conviction of murder with constructive intent in deflected blow cases.

The court made several non-binding observations: (1) Murders committed at drinking places are now prevalent and require stiff penalties to act as deterrents. (2) Courts have a duty to uphold the sanctity of human life. (3) Those who consume alcoholic beverages and commit brutal murders must expect severe punishment. (4) The court noted with disapproval that the accused showed no remorse for his actions. (5) The court observed that the deceased was a 'blameless victim caught in cross-fire' who deserved the court's protection. (6) While intoxication and the accused's difficult upbringing (orphaned at age 4, lack of education and formal employment) were mitigating factors, they did not outweigh the seriousness of needlessly taking a precious life.

This case is significant in Zimbabwean criminal jurisprudence for its clear application of the deflected blow (transferred malice) doctrine codified in section 57 of the Criminal Law (Codification and Reform) Act. It demonstrates that where an accused intends to harm one person but kills another, he can be convicted of murder with constructive intent if he realized the real risk that his conduct might cause death to someone other than the intended victim. The case also emphasizes the courts' intolerance for violence at drinking establishments and the need for deterrent sentences for murders committed in such venues, particularly where alcohol-fueled violence results in the death of innocent bystanders. The judgment provides clear guidance on the two-component subjective test for realization of real risk under section 15: awareness of the risk and reckless continuation of conduct despite that awareness.