The State v Silethemba Ndlovu and Below Ndlovu and Melusi Ndlovu

On 26 December 2024 around 0700 hours at Sawudweni business centre, a misunderstanding arose between the three accused and the deceased over cattle that had grazed in the accused's fields. The deceased was the son of the person accused blamed for the cattle issue. After an initial confrontation, Accused 3 (the father, 52 years old) whistled for his sons, Accused 1 (30 years old) and Accused 2 (22 years old), who arrived armed with machetes. The deceased attempted to flee and sought refuge behind a motor vehicle. Accused 3 grabbed and held the deceased to prevent his escape. Accused 1 then struck the deceased on the head with a machete, a blow which also accidentally struck Accused 3 on the shoulder, causing both Accused 3 and the deceased to fall to the ground. Accused 1 and Accused 2 then continued to assault the deceased with machetes, crushing his head completely. Witnesses who tried to intervene were threatened and one was struck with a machete. The postmortem report revealed craneoencephalic structures destruction, comminute fracture, brain rupture, and multiple incised wounds on the back. The machetes had blades measuring 32 and 50 cm.

• Whether Accused 1's defence of temporary insanity was established on a balance of probabilities
• Whether Accused 2 and Accused 3 participated in the murder as co-perpetrators
• Whether the doctrine of common purpose applied to render Accused 3 liable despite being incapacitated by the first blow
• What intention the accused had in committing the murder
• What appropriate sentence should be imposed for murder committed with aggravating circumstances

All three accused were found guilty of murder as defined in s47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each accused was sentenced to 25 years imprisonment. The two machetes used in the commission of the offence were ordered to be destroyed.

1. Under s227 of the Criminal Law Code and s18 read with s29(2) of the Mental Health Act, an accused raising the defence of temporary insanity bears the onus to prove on a balance of probabilities that he was suffering from a mental disorder at the time of the offence, and such proof requires credible evidence including medical evidence. 2. Under s196A of the Criminal Law Code (common purpose doctrine), where an accused facilitates the commission of a crime by co-perpetrators with knowledge or appreciation that the crime would be committed, he may be convicted as a co-perpetrator even if his direct participation ceased before the full commission of the offence. 3. The conduct of holding or restraining a victim to prevent escape while knowing that armed co-accused intend to use dangerous weapons on that victim constitutes participation sufficient to establish liability under the common purpose doctrine. 4. Intention to commit murder can be inferred from the use of inherently dangerous weapons such as machetes, the targeting of vital areas such as the head, threats made before and during the attack, and the nature and extent of the assault.

The court observed that life ought not to be lost under such cruel circumstances and at a public place, traumatizing members of the public. The court noted that Accused 3, as the elderly person and parent figure, ought to have been the voice of reason rather than facilitating the violence. The court commented that no parent should ever be subjected to witnessing their son's head being crushed. While noting the devastating impact on the accused's family of losing a father and two sons to prison, the court emphasized that courts must not adopt a vengeful attitude but must mete out sentences that are fair and just, citing S v Zinn, S v Ndlovu, S v Harrington, and S v Rabie. The court observed there was no reason to differentiate sentences among the three accused as their moral blameworthiness was at par, and Accused 2's younger age was no reason to impose a lesser sentence given his active role in the murder.

This case is significant in Zimbabwean criminal law for its application of the common purpose doctrine under s196A of the Criminal Law Code to hold liable an accused who facilitated a murder by restraining the victim, even though he was himself incapacitated early in the attack. The case clarifies the evidential burden for the defence of temporary insanity, emphasizing that medical evidence is required and that the accused must prove mental disorder on a balance of probabilities under s18 of the Criminal Law Code read with s29(2) of the Mental Health Act. The case also demonstrates judicial approach to sentencing in cases of brutal murder involving dangerous weapons, public settings, and gang violence, warranting sentences above the presumptive penalty while maintaining proportionality and avoiding vengefulness.