Court name
Supreme Court of Zimbabwe
Case number
SC 17 of 2003
Crim. Appeal 214 of 2001

S v Ndlovu (14/01) (SC 17 of 2003, Crim. Appeal 214 of 2001) [2003] ZWSC 17 (09 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 17
















Judgment
No. SC 17/03



Crim.
Appeal No. 214/01








BEMBA
NDLOVU v THE STATE








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & ZIYAMBI JA


HARARE,
JUNE 10, 2003








J
B Colegrave
,
for the appellant





N
J Mushangwe
,
for the respondent





SANDURA  JA:
The appellant was charged with murder, the allegation being that on
19 November, 1997 he unlawfully and
intentionally killed a seven-day
old male infant at Khumalo’s homestead in Lupane district. He
pleaded guilty and was convicted
of murder with actual intent. No
extenuating circumstances were found and he was sentenced to death.
He subsequently appealed
against the conviction and sentence.






At
the hearing of the appeal, the following order was issued with the
consent of both counsel:


“It
is ordered that the conviction and sentence be and are hereby set
aside and that the following be substituted:







1. In
terms of s 28(1) of the Mental Health Act [
Chapter
15:06
]
the accused, Bemba Ndlovu, is guilty of the murder of Sicolani, an
infant, but was mentally disordered or defective at the time
when he
killed the deceased.







2. It is ordered that the accused
be returned to prison for transfer to Parirenyatwa Psychiatric Unit
for examination”.







We
indicated at the time we issued the order that our reasons would be
given in due course. I now set them out.







The
background facts in the matter are as follows. The appellant and the
deceased’s mother lived as husband and wife in terms
of a customary
law union from 1990 to June 1995 when they separated. The deceased,
who was born in November 1997, was not the appellant’s
child.






On
19 November 1997, the appellant proceeded to the village where his
former wife and the deceased were. He arrived there at about
10 p.m.
and knocked on the window of the hut in which the deceased and his
mother were sleeping. As he threatened to force his entry
into the
hut, he was struck on the forehead with an iron bar by the deceased’s
mother who thereafter escaped from the hut leaving
the deceased
asleep.







The
appellant then entered the hut and took the deceased away. The
matter was subsequently reported to the police, but the deceased
was
never found.






When the appellant was arrested,
he freely and voluntarily made the following warned and cautioned
statement:



“I
admit the charge of killing the baby on the 19
th
November. I arrived at Jethro Thebe’s homestead, took the baby
away and undid fibre from a tree, tied the baby to a stone and
threw
it in water (pool), because the baby in question was not mine. The
child was obtained through prostitution by Makhumalo, my
wife. she
did prostitution when I was in prison. I was therefore angered by
this. That is why I killed the baby. I admit that I
killed the baby
and threw it in a pool. That is all”.






That
statement was subsequently confirmed by the resident Magistrate at
Lupane. The pool mentioned in the statement was searched
by the
police, but the deceased’s body was not found.






As
already mentioned, the appellant was found guilty of murder with
actual intent and sentenced to death.







When
the appeal came up for hearing on 15 November, 2001, Mr
Colegrave,
who appeared for the appellant, sought a postponement to enable the
appellant to undergo a psychiatric examination for the purpose
of
determining the appellant’s mental state at the time of the
commission of the offence. He submitted that having regard to the
nature of the killing and the appellant’s own evidence at the
trial, there was a possibility that the appellant was mentally
disordered
at the relevant time. The postponement was granted and
the appellant was subsequently examined by a psychiatrist who has
submitted
an affidavit in which he has set out his observations and
conclusions.






The affidavit, in relevant part,
reads as follows:


“During
my examination I found that:







(a)
Bemba’s grandfather suffered from mental illness.







(b) Bemba
once walked from Bulawayo to Lupane, for no good reason since he had
bus fare. His first wife noticed that he was not mentally
well and
took him to a traditional healer for treatment.







(c) He
used to hear voices and talk to himself.







(d) He
burnt his brother’s house for no reason.







(e) Although
his claim to be a traditional healer cannot be disputed, some of the
elements of his powers and capabilities are almost
delusional.






(i) Claim to have
passed lightening to burn father-in-law’s house.







(ii) That by burying a child at
the hospital it reduced his traditional healing powers,







(iii) Being possessed by evil
spirit during disappearance of the child, and when he walked from
Bulawayo.







(f) Morbid refusal to be rejected
from 1995 to 2003.







(g) Evidence of thoughts
disorder…during my examination…







In my opinion, at the time of the
alleged offence B. Ndlovu was mentally disordered. He suffers from
a Paranoid Psychosis.”





In the circumstances,
this Court was satisfied that at the time of the commission of the
offence the appellant was mentally disordered.
Accordingly, an order
was issued in terms of s 28(1) of the Mental Health Act [Chapter
1
5:06], the Act in force at the relevant time, but
which was repealed by s 127(1) of the Mental Health Act 1996, with
effect from l January,
2000.











CHEDA JA: I agree.











ZIYAMBI JA: I agree.









Pro
Deo