THE State V Silethemba Ndlovu, Below Ndlovu AND Melusi Ndlovu

### Preamble
1
HB 133/25
HCBR 2934/24
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THE STATE

Versus

SILETHEMBA NDLOVU

And

BELOW NDLOVU

And

MELUSI NDLOVU

HIGH COURT OF ZIMBABWE

KABASA J with Assessors T.E Ndlovu and J. Zulu

HWANGE 26 JUNE AND 1 JULY 2025

Criminal trial

M. Dube, for the state

J. Change, for the accused

KABASA J:	The three accused are charged with murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23].  Accused 1 tendered a limited plea of guilty to culpable homicide which was rejected by the state.  Accused 2 and 3 tendered pleas of not guilty.  Pleas of not guilty were therefore entered for all three.

The state alleges that on 26 December 2024 around 0700 hours the now deceased and the accused were at Sawudweni business centre when a misunderstanding ensued with the accused accusing the now deceased’s father of allowing their cattle to graze in the accused’s fields.  The accused went on to assault the now deceased with droppers but he managed to escape.  Accused 3 was reprimanded by deceased’s friend, one Brilliant, whereupon he whistled and accused 1 and 2, who are his sons came armed with machetes.  Brilliant and the now deceased fled but they caught up with the now deceased who they attacked with the machetes before fleeing the scene.

In denying the charge, the 3 accused explained that the misunderstanding was over the issue of cattle which had grazed in the other family’s fields.  Accused 1 and the now deceased were armed with machetes but accused 3 tried to stop them from fighting.  At that point accused 1 saw a huge snake in front of him which he repeatedly struck cutting it into several pieces but later realised it was the now deceased he had killed.  He had also struck his father in the process.  Accused 2 and 3 did not participate in the assault.  A moment of temporary insanity led to deceased’s death.

To prove its case, the state tendered the postmortem report, 2 machetes and accused 3’s confirmed warned and cautioned statement, which were duly marked exhibit 1, 2, 3 and 4.

The postmortem gave the cause of death as craneoencephalic structures destruction as a result of assault with a machete.  The pathologist also observed destruction of all craneoencephalic structures (comminute fracture and brain rupture caused by blunt wound) and multiple incised wound on the back.

The machetes used to inflict these injuries had blades which measured 32 and 50 cm.

Viva voce evidence was led from two witnesses.  The first witness is a neighbour to the 3 accused.  The deceased was a son to his cousin.  His evidence was briefly that the assault on the deceased was over cattle which had grazed in the accused’s field.  When accused 1 and 2 came to the shops where the witness and deceased were, they were armed with machetes.  The deceased fled and sought refuge behind a motor vehicle but accused 3 got hold of him whereupon accused 1 struck the deceased on the side of the head and that same blow struck accused 3 resulting in both accused 3 and deceased falling to the ground.  Accused 1 continued to “chop” at the deceased.  He tried to restrain him but he was also struck with the machete and accused 2 joined in the assault also using a machete.  He left for fear that he would be injured further.

This witness’s evidence was materially corroborated by the second witness.  It was her motor vehicle which the deceased tried to seek refuge from.  She was at the shops where she had escorted someone.  She did not see where accused 1 and 2 emerged from but when they did they were armed with machetes.  Accused 3 got hold of the deceased to prevent him from escaping and accused 1 struck the deceased on the head.  That first blow also struck accused 3 who was holding the deceased resulting in both accused 3 and deceased falling to the ground.  Accused 1 and 2 continued “chopping” at the deceased, crushing his head in the process.  She tried to stop them telling them he was already dead but that was met with threats of assault.

We got the distinct impression that these witnesses were relating events of what they witnessed.  Such narration could not have been from a fertile imagination.  They happened to be at this business centre for different reasons.  The incident occurred at that business centre.  The threats issued to the second witness at her attempt to stop the assault were a reality for the first witness who was struck with a machete when he tried to stop the assault.

The postmortem report lent credence to the graphic description of how the deceased was “chopped” until his head was crushed.  There was no exaggeration by these witnesses.

The police who attended the scene and whose evidence was admitted in terms of s 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] also spoke of a crushed head, cuts on the back and legs and blood clots on the ground where the deceased lay.  This corroborated the account given by the witnesses of an indiscriminate assault.  The deep cut on accused 3’s shoulder was as described by the witnesses, the blow to the deceased’s head caught accused 3 on the shoulder as he was holding him stopping him from fleeing.

Granted the accused need not convince the court as to the truthfulness of their story.  No onus rests on them to prove or disprove anything (R v Difford 1937 AD 370, S v Kurauone HH 961-15) but their story cannot be looked at in isolation.  The court has to consider the evidence in its totality.

Accused 1 gave an account which suggested that when there was a misunderstanding between him, deceased and deceased’s friend, Brilliant Ndlovu, accused 2 suggested they go home and they did.  He by-passed their main homestead and went to his home where he armed himself with a machete.  The question is he had reached the safety of his home unharmed.  Why was he arming himself and why go back to the business centre?  What did he intend to do with the machete?  He arrived at the shops where accused 3 was standing with now deceased and his friend.  According to him he went round and accused 2 also came from the other direction.  This description dove-tails with the second witness’s narration that she did not see where they came from but saw them emerge.

He went on to say he chased the deceased.  Why chase him?  When one chases someone, it means that that person is fleeing which is what the witnesses saw.  Accused 1 was therefore on the offensive right from the start.  He struck the deceased whilst he was “facing at an angle” to use his words, suggesting that the deceased was not in attack mode.  Indeed he was not as he was not armed and was actually running away.

The narration by accused 1 suggests that after striking the now deceased which blow also accidentally struck accused 3, some dark cloud descended and he saw a snake which seemed to strike him.  He fought the snake, cutting it into pieces and only realised later that it was the now deceased.  He sought to rely on temporary insanity.

In S v Mutezo (126 of 2024) [2024] ZWHHC 126 (25 March 2024) MUREMBA J had occasion to consider the provisions of s227 of the Criminal Law Code [Chapter 9:23] which deals with the issue of temporary insanity at the time of commission of an offence.  The law says that:-

“The fact that a person charged with a crime was suffering from a mental disorder or defect when the person did or omitted to do anything which is an essential element of the crime charged shall be a complete defence to the charge if the mental disorder or defect made him or her

incapable of appreciating the nature of his or her conduct or that his or her conduct was unlawful or both or

incapable, notwithstanding that he or she appreciated the nature of his or her conduct or that his or her conduct was unlawful or both, of acting in accordance with such an appreciation.

2.	For purposes of subsection (1), the cause and duration of the mental disorder or defect shall be immaterial.

3.	Subsection (1) shall not apply to a mental disorder or defect which is neither permanent nor long-lasting, suffered by a person as a result of voluntary intoxication as defined in section two hundred and nineteen.”

MUREMBA J went further to articulate the circumstances under which such a defence is available when she said:-

“In terms of s18 of the Criminal Law Code, the onus is on the accused to prove on a balance of probabilities that he was mentally disordered at the time of the commission of the offence.  The accused must do so in line with s29(2) of the Mental Health Act [Chapter 15:12] which requires that there be evidence which must be given at trial.”

Such evidence, includes medical evidence.  In this case listening to the accused as he gave the narration was like listening to some fiction.  There was no conviction and there was absolutely nothing to show that he had ever had such episodes.  He was quick to say it had never happened and it never happened again.  There was obviously no medical evidence either.  It was a fleeting occurrence which disappeared after the mission had been accomplished.  He was perfectly alright as he ran home, armed himself, returned to the shops, ran after the now deceased, delivered the first blow which incapacitated him and all of a sudden, the now deceased became a snake which he had to fight.

He just then became aware of a mob and decided to flee to escape mob justice.  He was able to however be conscious of the fact that accused 2 was not armed and did nothing and also accused 3, thereby exonerating his father and brother.

He was able to tell that the first witness was not there but saw the second witness who alighted from her car screaming and fled.

What evidence was there, albeit on a balance of probabilities, to show mental disorder?  We would say absolutely no evidence.  His was a story meant to try and explain his unwarranted behavior and at the same time meant to shoulder the blame and exonerate his brother and father.  There was nothing to speak to some mental disorder of any kind.  Whatever evil spirits he sought to blame, such does not prove he suffered from temporary insanity.  He even threatened those who sought to intervene and was heard saying he was going to kill the deceased.  He knew what he was doing and did that which brought about the death of the deceased in line with the threat he and accused 2 had issued.

The temporary insanity is but a figment of his imagination and thrown in as a ploy to escape liability.  He failed dismally.

He sought to exonerate accused 2 yet the witnesses saw accused 2 aiding accused 1 in chopping at the deceased.  They both fled after completely crushing his head.

Like accused 1, accused 2 sought to ride on this creation of some cloud and mysterious snake in order to escape liability.  Accused 2 was not an honest witness and sought to downplay his role.  He was no peacemaker but assisted in the attack. Why did he go back to the business centre armed with a machete? He intended to use it and he did with a devastating effect.

Accused 3 fell when the first blow delivered to deceased’s head accidentally struck him.  Given the length of the machete blade it is not surprising that that blade struck him as well.  He was holding the deceased to stop him from fleeing.

We got the distinct impression that the 3 accused agreed to let accused 1 take the blame so the other two would be safe.  Their plot was too obvious to hoodwink the court.

The issue however is, can it be said accused 3 did not participate because the first blow on the now deceased floored him accidentally and knocked him out?

Section 196 A of the Criminal Law Code provides that:-

“(1)	If two or more persons accused of committing a crime in association with each other and the state adduces evidence to show that each of them had the requisite mens rea to commit the crime whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realisation of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.”

The now deceased was fleeing and he went behind the second witness’s vehicle trying to escape. Were it not for accused 3 who got hold of him he could have made good his escape.  His sons were armed with machetes and were on the offensive.  What did he think would happen to the one they were after?  He must have appreciated those machetes were going to be used on the unarmed deceased and instead of reprimanding accused 1 and 2, he decided to aid them by holding the deceased so they could attack him.  Indeed, they did and call it poetic justice, for he also got injured with that first strike.  The fact that he was rendered immobile does not change the fact that but for his actions the now deceased could have escaped.  That first strike which was made possible by him holding the now deceased immobilized the now deceased allowing accused 1 and 2 to butcher him until his head was completely crushed.  He (accused 3) cannot escape liability and the doctrine of common purpose ropes him in.

Merely listening to the 2 witnesses as each one explained thus- “if he was (accused 3) a peacemaker he would have gotten hold of his children.  The one who was a peacemaker was the first witness who was also struck on his shoulder,” and the first witnesses equally said “Accused 3 was not a peacemaker.  If he was he would have restrained accused 1 and 2 but I am the one who tried to but was also chopped,” left us in no doubt as to the events of this unfortunate day.  Such statements were a clear indication that accused 3 did not have to say anything to show what he was there for, his actions said it all.  He held the now deceased thereby allowing accused 1 and 2 to attack.

What intention could the 3 possibly have had given the nature of the attack, the weapons used and the part of the body that was struck?  Just looking at the machetes sent shivers down our spines, ugly looking and very dangerous.  The word “chop” as used by the witnesses aptly describes the action such a weapon would be capable of performing on anything, be it a piece of wood, an animal or a human being.  The deceased stood no chance.  Accused 1 and 2 stated their mission.  They were out to kill and they achieved that purpose.

We are therefore satisfied the state proved its case against all three beyond a reasonable doubt and accordingly find each one guilty as charged.

Sentence

Accused 1 you are 30, accused 2, 22 and accused 3, 52 years old.  You are all first offenders.

You are a father and his 2 sons.  The devastation to your family is likely to be of considerable propositions, losing a father and 2 sons to prison.

You all survived through menial jobs.  Accused 1 you were realizing ZAR 1000 per month, accused 2, ZAR  900 per month and accused 3 ZAR 600 from subsistence farming.

Accused 1 you are married with 2 minor children.  Accused 2 you are single with no children and accused 3 you are married with 9 children, the youngest of whom is 14 years old.

The deceased’s death is likely to haunt you for a long time to come.

In aggravation is the fact that you ganged up on a young 24 year old and killed him under such cruel circumstances.  You crushed his head using machetes, weapons that ought not to ever be used to assault a human being.  The deceased was not armed and had he been allowed to flee he probably would not have lost his life.

Accused 3 you ought to have been the voice of reason as the elderly person and in a position of a parent to your 2 sons and the deceased who is accused 2’s age mate.

Life ought not to be lost under such cruel circumstances and at a public place, traumatizing members of the public.

The victim impact statement shows how deceased’s father is still traumatized at the loss of his son.  He witnessed the effects of the assault and saw how his son’s head was crushed.  No parent must ever be subjected to such pain.

You did not show contrition by assisting with funeral expenses and after the brutal assault you left the deceased lying there as if he was a wild animal.

The statutory penalty is imprisonment from 15 years to life imprisonment and the presumptive penalty is 20 years where there are such aggravating factors as are present in your case.

The court must however not adopt a vengeful attitude and must mete out a sentence which is fair and just (S v Zinn 1969 (2) SA 527, S v Ndlovu HB 46-96, S v Harrington 1988 (2) ZLR 344, S v Rabie 1975 (4) SA 855)

A sentence above the presumptive penalty is called for because of the weapons used, the fact that the murder occurred at a public place, the nature of the assault and the fact that it was a gang assault on an unarmed young man.

That said, there is no reason to differentiate your sentences.  Your moral blameworthiness is at par.  The second accused’s age is no reason to impose a lesser sentence given his role in the murder.

Each one is accordingly sentenced to:-

25 years imprisonment.

The 2 machetes are to be destroyed.

National Prosecuting Authority, state’s legal practitioners

Mvhiringi Associates, accused’s legal practitioners