The State v Thembelenkosini Mlotshwa

On 1 January 2025, the deceased Khulekani Mjaho was drinking beer at Old Pumula Shopping Centre, Bulawayo during a public holiday. The accused and state witnesses were at the same location. A confrontation occurred between the accused and the deceased. According to state witnesses, the deceased reprimanded the accused for following him and struck the accused with a plastic chair. The accused then extracted a knife (an AK 47 Press Button/okapi knife) from his person and stabbed the deceased once in the abdomen, causing his intestines to protrude. The accused fled the scene. The deceased was taken to hospital where he died from his injuries. The post-mortem report showed cause of death as: (a) Haemorrhagic shock; (b) Abdominal visceral injury; and (c) Callous stabbing. The accused claimed self-defense, alleging the deceased was armed with the knife first and that the stabbing occurred accidentally during a struggle to disarm the deceased.

• Whether the accused caused the death of the deceased
• Whether the accused intentionally killed the deceased (actual intent) or had constructive intent
• Whether the accused's version of self-defense and accidental stabbing was credible
• What constitutes actual intention in murder cases
• Whether factual and legal causation were established

The accused was found guilty of murder with actual intent and sentenced to 23 years imprisonment. The murder weapon (AK47 Button knife) was forfeited to the state for destruction.

For a conviction of murder with actual intent, the court must be satisfied beyond reasonable doubt that either: (a) the accused desired to bring about the death of the victim and succeeded in completing that purpose; or (b) while pursuing another objective, the accused foresaw the death of the victim as a substantially certain result of that activity and proceeded regardless. Intention can be inferred from objective circumstances including: the nature and severity of the weapon used, the degree of force applied, the depth and location of wounds inflicted on vital parts of the body, the accused's conduct after the offense (such as fleeing), and whether the accused was prepared with the weapon beforehand. Where two consistent eyewitnesses provide clear testimony contradicting an accused's version of events, and the accused's version is objectively implausible and inconsistent with the physical evidence (such as the depth and nature of wounds), the court is entitled to reject the accused's version and convict based on the state's evidence. On causation, the state must prove both factual causation (but for the accused's conduct, the deceased would not have died when he did) and legal causation (it was objectively foreseeable or within the range of ordinary human experience that the accused's action would lead to death).

The court made important observations about victim impact statements, noting that the actual victim of an offence should be the person from whom the impact statement is obtained. In murder cases where the deceased was married, the widow is the actual victim who is most affected by the death and will be responsible for caring for the children. A victim impact statement from a relative other than the widow does not fulfill the intention of the lawmaker and does not adequately assist the court in arriving at the most appropriate sentence. The court also observed that sentences should be fair and just rather than excessive, savage and draconian (citing S v Ngulube HH 48-02), and should be blended with mercy as mercy is an element of justice itself (citing S v V 1972 (3) SA 611 (A) at 614). The court expressed that a sentence of 25 years would have been fair, but reduced it to 23 years based on mitigation factors, though the specific mitigation factors justifying the reduction were not clearly articulated in the judgment.

This case is significant in Zimbabwean criminal law for its application of the principles distinguishing actual intention from constructive intention in murder cases. The judgment reinforces that courts will scrutinize self-defense claims against objective eyewitness evidence and the physical facts of the case. The case also demonstrates the proper approach to assessing intention through objective indicia such as the nature of the weapon, degree of force used, location of injuries, and post-offense conduct (fleeing the scene). Additionally, the judgment emphasizes the importance of proper victim impact statements being obtained from the actual victims (in this case, the widow rather than other relatives) to ensure meaningful consideration of the impact of the crime during sentencing. The case illustrates that even provocation (being struck with a chair) does not reduce murder to culpable homicide where the accused responds with disproportionate and lethal force using a weapon carried on his person.