THE State V Xolani Ncube

### Preamble
1
HB 165/25
HCBCR 2207/25
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THE STATE

Versus

XOLANI NCUBE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 9 OCTOBER 2025

Assessors: Mr Dewa

Mr Mbizo

Ms T. P Mutarisi, for the state

L. Mcijo, for the accused

Judgment

NDUNA J:- During the day or in the early evening of the 24th of April 2024, the accused suspected that his snooker ball had been misappropriated by two of the State witnesses. He set out to locate them in an attempt to recover the said ball. It is not very clear at what stage the two young men broke free from the accused. However, the deceased is said to have heard that the two had been taken, and he sought to go and apologise and offer to replace the snooker ball.

It must be noted that the accused denies that the deceased and others came to discuss the issue of the ball. He asserts that they came to perpetrate a robbery against him. Therefore, there is a dispute as to the circumstances under which the deceased came to the accused’s residence.

That visit, however, culminated in the accused shooting the deceased to death.

The question before the court is, therefore, whether the accused shot and killed the deceased in the manner described by the State witnesses, or in the manner he wishes the court to believe. In order to arrive at a proper conclusion, it is prudent to summarise the evidence of the witnesses, beginning with that led by the State

Bongani Mafu

The witness testified that he heard his people had been taken by the accused over a missing snooker ball. The two young men alleged to have lost or taken the accused’s snooker ball were Bonisani Mafu and Mabambeni Sikhosana. They learnt that the young men had been taken by the accused, who was accompanied by other members of the community.

The witness drove to where the deceased was parked. They decided to follow the accused so that they could retrieve the two young men and resolve the issue concerning the missing ball. The deceased attempted to obtain the accused’s phone number so that he could communicate with him. However, the person who had the number refused to disclose it and instead called the accused to advise him that the witness and the deceased sought to meet him.

They later proceeded to the accused’s residence, where they parked and called him to come out. They found him standing near his house. The deceased walked towards the accused holding a packet of drink. Upon seeing him, the accused discharged his firearm twice. The deceased fell to the ground, and the witness fled. He denied that they were armed or that they intended to rob the accused.

Thembinkosi Mafu

His evidence is not materially different form the first witness. He however remained in the car when they got to accused’s place of residence. He heard a gun shot and he run away. He ran until he got to the police station.

Mabambeni Sikosana

He was the person who had an issue with the accused. He was the one who is alleged to have misplaced the accused’s snooker ball according to him. He was taken with one Bonisani. The accused had picked his colleague from his home. The witness told the court that he was assaulted with a gun being pointed at him. He was assaulted and his colleague escaped from the accused.

Bonisani Mafu

On the day in question he was home. He had played the snooker ball game in the afternoon. As he was at home he was called by someone who had been sent by the accused. He realised that it concerns a snooker ball which was said to have been lost. He was shoved into the VW vehicle and taken to the shops. He was assaulted. He managed to run away at the shops.

Emmanuel Likubo

He was a police officer at the material time. He was on patrol. He was phoned to attend the scene. He went to the scene and met an assistant inspector. He was ordered to take charge of the case. He found the deceased lying by his car. He was bleeding. He took the deceased to the hospital where the deceased died upon being admitted. The witness checked for any weapons at the scene. He found none. The accused was not at the scene.

Lovemore Joe

He was also a police officer at the time of the occurrence of the case. He is still in the force but is now stationed at Chipinge. He attended as the Investigating Officer of the case. He observed the deceased had some gunshots wounds. He had four gunshots wounds. Two gunshot wounds were on the chest. Extra wounds were on the left arm and the right arm. He looked for any weapons at the scene but could not find any. He did not find the accused.

It suffices to state that the witnesses were thoroughly cross examined by the defence. However, such cross examination did not shake their evidence.

Xolani Ncube

He is the accused and the first defence witness. His evidence portrays a robbery scene. He alleges there were many people who came to his house. The persons had weapons. He had shot one of them. He concedes that he shot him on the arm which handled the axe. He asserted that the person continued advancing towards him. He shot again. HE escaped and went to the villages in Filabusi. He also admits that there was the snooker ball issue but that had been resolved amicably.

Mehluli Nyoni

He was a defence witness. He spoke of the complainants to have arrived with two motor vehicles. He spoke of having seen about 10 people. He states that it was him who had alerted the accused that there were many persons who had arrived and that forced the accused to go out of the house. He heard the people calling Xolani names and demanding money. He spoke of an axe and a knife being dropped at the scene.

Analysis of the evidence

It is clear that the defence witnesses spoke of an axe and knife allegedly dropped at the scene. However, the police witnesses stated that no weapons were found. The State witnesses also denied being armed. Both police officers confirmed that no weapons were discovered, including the investigating officer, who personally conducted the search.

The court therefore finds that there were no weapons at the scene. The deceased and his colleagues were unarmed. The claim of weapons is an afterthought by the accused, intended to depict the deceased and his companions as robbers.

The behaviour of the accused after the shooting is also telling. He fled the scene and remained on the run for at least five days. Clearly, a person who genuinely believed he had defended himself against robbers would not have conducted himself in that manner. In contrast, the deceased’s companions immediately ran to the police to make a report. The accused’s conduct is consistent with that of someone aware that he had committed a wrongful act.

It is evident that the accused’s actions were motivated by anger after the two young men he had accused of misplacing the snooker ball escaped before its recovery. Their evidence was that they had fled from severe assaults by the accused.

The court therefore finds that the accused deliberately shot and killed the deceased without giving him a chance to speak.

The Law

The offence of murder is created by section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which provides:

47 Murder
(1) Any person who causes the death of another person—
(a) intending to kill the other person; or
(b) realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility—
shall be guilty of murder.

Intention is defined in section 13 of the same Act as follows:

(1) Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did.
(2) Except as may be expressly provided in this Code or in the enactment concerned, the motive or underlying reason for a person’s doing or omitting to do anything, or forming any intention, is immaterial to that person’s criminal liability.

This means that once it is established that the accused intended to engage in the act or to produce the result, the reasons behind that conduct are irrelevant to the finding of criminal liability—they may only mitigate the sentence, not the guilt.

Section 12 of the Code further defines the “subjective state of mind” as follows:

12 Meaning of subjective state of mind
For the purposes of this Part, a subjective test for a state of mind is a test whereby a court decides whether or not the person concerned actually possessed that state of mind at the relevant time, taking into account all relevant factors that may have influenced that person’s state of mind.

In this case, the accused, after a prior altercation with the deceased’s friends, took a firearm and fatally shot the deceased. His conduct clearly falls within the ambit of section 47. He did not fire a single shot he discharged multiple rounds into the deceased.

Accordingly, the court finds the accused guilty of murder with actual intent.

Sentence

The Criminal Procedure (Sentencing Guidelines) Regulations, 2023, also known as Statutory Instrument 146 of 2023, provide guidance to the courts on sentencing. These guidelines emphasise consideration of the victims’ circumstances and sentiments.

In this case, the evidence from the deceased’s family urged the court to impose the severest penalty. While the State proposed to lead evidence from the deceased’s mother, it is clear that the primary victims are his wives and children. Nonetheless, the court has considered the mother’s sentiments as those of a secondary victim.

The defence has continued to insist on the theory of robbery, yet this court has found no basis for that claim. The deceased greeted the accused, and the accused knew that they had come to discuss the issue of the missing snooker ball. Only about three people disembarked from the vehicle, and none were armed. It is, therefore, wholly unfounded to suggest that a robbery was intended. The accused acted out of anger, particularly after the two young men had escaped before the ball was recovered.

He deliberately chose to shoot the deceased. This was a grave and serious offence, as correctly submitted by the State.

In S v Mungoza HMT1/18 the court held that:

“Sentencing is a delicate exercise requiring the proper exercise of judicial discretion, taking into account the circumstances of each case. It is imperative that the court strikes a balance between the interests of the offender and those of society. The sentence must fit both the crime and the offender, upholding public confidence in the administration of justice. While punishment must be proportionate, it should also allow room for mercy and rehabilitation.”

The Sentencing Guidelines further state that where a murder is committed using a weapon, such fact constitutes an aggravating circumstance. In this case, a firearm was used, rendering this an aggravated form of murder.

In mitigation, the accused is a first offender, married, and a father of five children. He was the sole breadwinner of his family. These personal circumstances warrant consideration.

A sentence of 30 years’ imprisonment would have been justified. However, taking into account the mitigatory factors, a sentence of 25 years’ imprisonment is appropriate.

The firearm used in the commission of the offence is hereby forfeited to the State.

The National Prosecuting Authority, state’s legal practitioners

Liberty Mcijo and Associates, accused’s legal practitioners