The State v Thembelenkosini Mlotshwa

On 1 January 2025, at Old Pumula Shopping Centre in Bulawayo, Zimbabwe, the deceased Khulekani Mjaho was drinking beer during a public holiday. The accused and state witnesses were at the same location. A confrontation occurred between the accused and deceased, during which the deceased reprimanded the accused for following him. The deceased struck the accused with a plastic chair. The accused then extracted an AK 47 Press Button (okapi) knife from his person and stabbed the deceased once in the abdomen, causing the intestines to protrude. The accused then fled the scene. The deceased was taken to hospital where he died from his injuries. A post-mortem examination revealed the cause of death as: (a) haemorrhagic shock, (b) abdominal visceral injury, and (c) callous stabbing. The incident occurred in the morning with good visibility, and was witnessed by multiple persons.

• Whether the accused caused the death of the deceased
• Whether the accused acted with actual or constructive intention to kill
• Whether the accused's version of self-defence during a struggle for the knife was credible
• Whether the accused was guilty of murder with actual intent
• What constituted an appropriate sentence for murder with actual intent

The accused was found guilty of murder with actual intent. He was sentenced to 23 years' imprisonment. The knife (AK 47 Button knife, Exhibit 3) was forfeited to the state for destruction.

In a murder case, the court must establish both factual causation (but-for test) and legal causation (objective foreseeability). Actual intention to kill can be established where: (a) the accused desired to bring about death and succeeded, or (b) while pursuing another objective, the accused foresees death as a substantially certain result and proceeds regardless. Actual intention can be inferred from objective circumstances including: the nature and severity of the wound inflicted, the use of a dangerous weapon, the targeting of vital body parts, the degree of force used, and the accused's conduct after the act (such as fleeing the scene). Where two credible witnesses give consistent evidence about events that occurred in good visibility, and the accused's version is implausible and contradictory, the court is entitled to reject the accused's version and accept the state's evidence. Provocation by a relatively minor assault (being hit with a plastic chair) does not negate intention to kill where the accused responds with disproportionate and lethal force using a dangerous weapon.

The court made observations about the proper procedure for obtaining victim impact statements, noting that police should obtain such statements from the actual primary victim of the crime. In murder cases involving married deceased persons, this means the widow/widower should provide the impact statement as they are most directly affected and responsible for caring for any children, rather than other relatives. The court noted that a sentence of 25 years would have been appropriate but reduced it to 23 years based on mitigation factors. The court emphasized that while sentences should be blended with mercy as an element of justice itself (citing S v V 1972 (3) SA 611 (A)), they must not be excessive, savage or draconian (citing S v Ngulube HH 48-02), but must also reflect that a human life was intentionally taken. The court observed that the accused carrying a knife indicated he was ready to use it, suggesting premeditation.

This case is significant for its application of Zimbabwean criminal law principles regarding murder with actual intent. It demonstrates the courts' approach to assessing credibility of witnesses in cases involving conflicting versions of events, particularly where the accused claims self-defence or accident. The case reinforces that actual intention can be inferred from objective circumstances including the weapon used, the nature and location of injuries, the degree of force applied, and the accused's conduct after the act. The judgment also addresses proper procedure regarding victim impact statements, emphasizing that such statements should be obtained from the actual primary victim (in this case, the widow) rather than other relatives. The case illustrates the court's balancing of aggravating factors (use of a weapon, death of a young person with dependents, premeditation evidenced by carrying a knife) with the principle that sentences should be fair and blended with mercy while reflecting the gravity of intentional killing.