No. SC 17/03
Appeal No. 214/01
NDLOVU v THE STATE
COURT OF ZIMBABWE
CHEDA JA & ZIYAMBI JA
JUNE 10, 2003
for the appellant
for the respondent
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 Khumalos 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.
the hearing of the appeal, the following order was issued with the
consent of both counsel:
is ordered that the conviction and sentence be and are hereby set
aside and that the following be substituted:
terms of s 28(1) of the Mental Health Act [Chapter
the accused, Bemba Ndlovu, is guilty of the murder of Sicolani, an
infant, but was mentally disordered or defective at the time
killed the deceased.
2. It is ordered that the accused
be returned to prison for transfer to Parirenyatwa Psychiatric Unit
indicated at the time we issued the order that our reasons would be
given in due course. I now set them out.
background facts in the matter are as follows. The appellant and the
deceaseds 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 appellants
19 November 1997, the appellant proceeded to the village where his
former wife and the deceased were. He arrived there at about
and knocked on the window of the hut in which the deceased and his
mother were sleeping. As he threatened to force his entry
hut, he was struck on the forehead with an iron bar by the deceaseds
mother who thereafter escaped from the hut leaving
appellant then entered the hut and took the deceased away. The
matter was subsequently reported to the police, but the deceased
When the appellant was arrested,
he freely and voluntarily made the following warned and cautioned
admit the charge of killing the baby on the 19th
November. I arrived at Jethro Thebes homestead, took the baby
away and undid fibre from a tree, tied the baby to a stone and
it in water (pool), because the baby in question was not mine. The
child was obtained through prostitution by Makhumalo, my
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.
statement was subsequently confirmed by the resident Magistrate at
Lupane. The pool mentioned in the statement was searched
police, but the deceaseds body was not found.
already mentioned, the appellant was found guilty of murder with
actual intent and sentenced to death.
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
determining the appellants mental state at the time of the
commission of the offence. He submitted that having regard to the
nature of the killing and the appellants own evidence at the
trial, there was a possibility that the appellant was mentally
at the relevant time. The postponement was granted and
the appellant was subsequently examined by a psychiatrist who has
an affidavit in which he has set out his observations and
The affidavit, in relevant part,
reads as follows:
my examination I found that:
Bembas grandfather suffered from mental illness.
once walked from Bulawayo to Lupane, for no good reason since he had
bus fare. His first wife noticed that he was not mentally
took him to a traditional healer for treatment.
used to hear voices and talk to himself.
burnt his brothers house for no reason.
his claim to be a traditional healer cannot be disputed, some of the
elements of his powers and capabilities are almost
(i) Claim to have
passed lightening to burn father-in-laws 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
(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
15:06], 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,
CHEDA JA: I agree.
ZIYAMBI JA: I agree.