The State v Jubiliant Ndlovu and Priviledge Ncube

On 1 March 2014, two siblings (Accused 1 - Jubiliant Ndlovu, and Accused 2 - Priviledge Ncube) murdered Thoko Ncube, a 62-year-old woman, in the Mlomwe area of Plumtree. The accused persons believed the deceased was a witch who was bewitching them, allegedly evidenced by an owl hooting and calling out "Rejo Rejo" (Accused 2's daughter's name). They hatched a plan to kill her. Before the murder, Accused 1 smoked dagga for "Dutch courage" and armed himself with a knobkerrie. They went to the deceased's homestead with a 15-year-old juvenile, Sikhangezile Mpala, who was threatened and compelled to accompany them. Accused 1 strangled the deceased while Accused 2 sat on her legs and pressed her hands. Accused 1 then struck the deceased three times on the head with a knobkerrie on Accused 2's instructions. After the deceased died, they left her body with a 2-year-old grandchild. Accused 2 prayed that the deceased's spirit would not return. Neither accused reported the murder; it was only reported two days later by Sikhangezile to her aunt.

• Whether Accused 1's voluntary intoxication from smoking dagga negated the intent required for murder
• Whether Accused 2 was a co-principal offender despite claiming she only witnessed the murder
• Whether the crime was committed in aggravating circumstances warranting the death penalty under section 48(2) of the Constitution
• The application of the doctrine of common purpose in a murder case
• The credibility of an accomplice witness who was a threatened juvenile

Both Accused 1 (Jubiliant Ndlovu) and Accused 2 (Priviledge Ncube) were found guilty of murder with actual intent. Each accused was sentenced to 30 years imprisonment.

The binding legal principles established are: (1) Voluntary intoxication obtained after forming the intention to commit murder (to gain "Dutch courage") does not negate criminal capacity or mens rea for murder where the accused remembered events, acted methodically in furtherance of the prior plan, and had memory of the events. (2) A co-accused who masterminds a murder, issues instructions during its commission, participates physically (restraining the victim), verifies death, and fails to report or prevent the killing is a co-principal offender with the requisite actus reus and mens rea for murder, regardless of claims of mere presence. (3) Murder motivated by irrational belief in witchcraft, while not constituting murder in "aggravating circumstances" under section 48(2) of the Constitution, remains a heinous crime deserving lengthy custodial sentences to protect the sanctity of human life and deter such conduct. (4) Evidence of an accomplice who is a juvenile witness must be approached with caution, but where such evidence is coherent, corroborated in material respects, and the witness demonstrates no ill-will toward the accused, it may be accepted as credible.

Takuva J made several obiter observations: (1) That beliefs in witchcraft justifying murder are "weird and held by irrational people" and trying to make sense of such deeds is "ignominious." (2) That the public should be made aware that those who commit murder under the guise of belief in witchcraft deserve lengthy prison terms. (3) Commentary on Accused 2's character as a "cunning hypocrite and plausible liar" based on her conduct of pretending the deceased was alive when discovering the body. (4) That although Accused 2 masterminded the crime, there was "no legal justification to treat them differently when passing sentence," suggesting that differential sentencing based on degrees of culpability among co-principals may be inappropriate in certain circumstances. (5) Observations about the manipulation of Accused 1 by his older sister (Accused 2), including references to him as a "child" and employee under her control.

This Zimbabwean High Court case is significant for establishing principles regarding: (1) Voluntary intoxication as a defence - affirming that intoxication to gain "Dutch courage" after forming intention to kill does not negate criminal liability for murder; the accused must be so intoxicated as not to know what he was doing. (2) Common purpose liability - demonstrating how courts assess participation in joint criminal enterprise, particularly where one party masterminds the crime and manipulates others. (3) Treatment of witchcraft-related killings - emphasizing that belief in witchcraft does not mitigate the seriousness of murder, and such beliefs are "weird and held by irrational people"; courts will impose lengthy sentences to deter such killings. (4) Assessment of accomplice evidence - showing how courts evaluate credibility of threatened juvenile witnesses who are accomplices. (5) Constitutional sentencing under section 48(2) - clarifying that witchcraft-motivated murder does not constitute murder in "aggravating circumstances" warranting the death penalty.