The state v Edson Ndou [2025] ZWBHC 17 (15 July 2025)

3 HB 116/25 HCBCR 1691/25 THE STATE Versus EDSON NDOU IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mr O. Dewa & Mrs Majenda BULAWAYO 15 JUNE AND 15 JULY 2025 Criminal Trial- Judgment Ms DE Kanengoni for the State Ms L V Nkomo (for Mr N Sithole) for the accused NDUNA J: The deceased was struck by a stone severely injuring him, whereupon he met his death. The accused appeared charged with that murder which occurred on 26 August 2021 at deceased’s homestead. It was at the homestead that a fight broke out in which it is alleged that the accused picked a stone and struck the deceased. The deceased is alleged to have suffered injuries from which he passed on. The accused tendered a plea of not guilty to the charge duly advised by counsel. During the course of the trial the accused prayed for an acquittal at the close of state case. That prayer failed. He then gave his evidence and the court was addressed in terms of section 200 by the legal counsels. The evidence of the state witnesses is very clear. Before that, we would like to emphasise that murder is committed whereupon a person is killed without any lawful justification. In this case, it is apparent that there was a fight involving the deceased and one person named as Forster and the accused. The said Forster did not stand trial as he escaped. The accused joined in the fight on the side of Forster. It is now being taken by the defence that the deceased was struck by the said Forster and on that the accused must be acquitted. Now, if we look at the evidence placed before the court it is very clear on what took place. The evidence of the first state witness was very clear. The witness saw the accused struck the complainant with stones. So, it is clear that the accused was a combatant during the fight that ensued at the beer drink. He was thereat attacking the deceased. Therefore, we can safely state that the accused and Forster both were the combatants and were fighting the deceased. The court in Tshabalala v The State; Ntuli v The State [2019] ZACC 48 stated that a prior agreement is a liability requirement where people act in the furtherance of a common purpose and held that: It is trite that a prior agreement may not necessarily be express but may be inferred from surrounding circumstances. The facts constituting the surrounding circumstances from which the inferences are sought to be drawn must nevertheless be proved beyond reasonable doubt. A prior agreement to commit a crime may invoke the imputation of conduct, committed by one of the parties to the agreement which falls within their common design, to all the other contracting parties. Subject to proof of the other definitional elements of the crime, such as unlawfulness and fault, criminal liability may in these circumstances be established” What is clear from the above is that a person can be found liable if he participates in a crime with another. His conduct is imputed on to the other person and vice versa. We can not successfully argue that the fatal blow was inflicted by Forster, and hence the accused is not liable when the accused was involved in the very fight in which Forster was participating. We need not to have individual assessment of the intention. The accused, when he took to fight in aid of Forster, must have done so in common purpose of the said Forster. Whatever was done by Forster can easily be imputed to the accused. The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime. Burchell and Milton Principles of Criminal Law, Burchell and Milton 2nd ed, at 393. defines the doctrine of common purpose in the following terms: Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime. CR Snyman, in his book Criminal Law 4th ed at 261 points out that the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.” The liability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind. The accused simply noted that Forster was in a battle and he simply joins in. In this case the accused intervened in the fight and delivered two blows. Therefore, obviously there is no way he can escape conviction. The evidence of the first state witness is very clear on the participation of the accused. It was his evidence that the accused threw stones at the deceased and two of the three to four stones thrown found their mark on the deceased. It is the persuasion of the defence that the attacks by the accused were not the cause of death. Even if they were not, accused attacked the deceased during which course the deceased met his death. The doctrine of common purpose extends liability in the same measure to the accused. Nonetheless, in this case we have evidence that the accused threw the stones which in turn hit the deceased. The witness actually describes how the deceased was hit with the stones and his near falling after being hit by the stones thrown by the accused. In view of the course of the attack on the deceased by both the accused and Forster, it will be wrong to seek to separate the attacks for the purpose of the verdict. The attack was given as this by the state witness; So, the deceased went to attack Forster as this was now happening the first accused stood up to join in on Forster’s side to assist. The deceased on getting to Forster he slapped him on his right cheek. The rest of people went there to restrain him. That is when the first accused stood up to square up with the first deceased. It was now a fight between the deceased and the accused. That is now Edward Ndou, the accused picked up stones. The accused picked stones and struck with the first stone here (indicates somewhere in the waist) on deceased’s body. As the deceased was advancing towards the accused, accused picked some more stones. The second stone struck the now deceased here (Indicates side of the mouth jaws). That is when the deceased then supported himself with a stab of tree. Forster then appeared and struck the deceased with a stone here (indicates on the side of the head). Then the accused chased after Onias Mbedzi with some stones. Forster went away after the attack. Clearly a person hit the manner the deceased was hit can not be said to have been murdered by one of the persons who attacked him but by all the persons wo were involved in the attack. Unfortunately, the accused is one of the persons. The above narration is not being disputed by the defence. Accordingly, the accused is found guilty of murder with constructive intent. Reasons for sentence The accused is mature adult who is aged 42 years old. He was about 40 years old when he committed the offence. The accused simply joined the fight without even asking why Forster was fighting the deceased. The Accused has been convicted of one count of murder. It is now the court’s duty to sentence the Accused. Punishment must fit the criminal, as well as the crime, be fair to society and be blended with a measure of mercy. When sentencing an accused, a court is required to consider the four objectives of punishment (deterrence, prevention, rehabilitation and retribution) in view of the triad of factors as set out in S v Zinn 1969 (2) SA 537 (A). These factors are (i) the personal circumstances of the offender, including his character, conduct in life and personality, and everything that influenced the commission of the offence; (ii) the nature and seriousness of the offence committed; and (iii) the interests of the community, including the necessity for a level of uniformity in sentencing. In view of the seriousness of the murder of which the accused is guilty, the legislature has decreed that the court is obliged to impose a maximum penalty of life imprisonment. In considering whether such circumstances exist and, if so, what sentence is appropriate, it is necessary to examine the circumstances of the offence intensively and attempt to determine the exact degree of seriousness of the particular act in respect of which the accused has been found guilty, as well as the personal circumstances of the accused and the interests of the community. It is a requirement of the law that the sentence should be balanced evenly. Sentencing is about achieving the right balance (or, proportionality.) The elements at play are the crime, the offender and the interests of society or, with different nuance, prevention, retribution, reformation and deterrence. Invariably there are overlaps that render the process unscientific; even a proper exercise of the judicial function allows reasonable people to arrive at different conclusions. In S v Van Loggenberg 2012 (1) SACR 462 (GSJ) the court said that a sentence has five important functions (at [6]) which must be adopted here as well. These are listed as follows; (i) It must act as a general deterrent, in other words, it must deter other members of the community from committing such acts or thinking that the price of wrongdoing is worthwhile; (ii) it must act as a specific deterrent, in other words, it must deter this individual from being tempted to act in such a manner ever again; (iii) it must enable the possibility of correction, unless this is very clearly not likely; (iv) it must be protective of society, in other words, society must be protected from those who do it harm; (v) it must serve society’s desire for retribution, in other words, society’s outrage at serious wrongdoing must be placated.’ The five important functions referred to above should also be read with the following 'basic principles pertaining to sentencing’; '(a) The sentence must be appropriate, based on the circumstances of the case. It must not be too light or too severe. (b) There must be an appropriate nexus between the sentence and the severity of the crime; full consideration must be given to all mitigating and aggravating factors surrounding the offender. The sentence should thus reflect the blameworthiness of the offender and be proportional. These are the first two elements of the triad enunciated in S v Zinn [supra] (c) Regard must be had to the interests of society (the third element of the Zinn triad). This involves a consideration of the protection society so desperately needs. The interests of society are reflected in deterrence, prevention, rehabilitation and retribution. (d) Deterrence, the important purpose of punishment, has two components, being both the deterrence of the accused from reoffending and the deterrence of would-be offenders. (e) Rehabilitation is a purpose of punishment only if there is the potential to achieve it. (f) Retribution, being a society’s expression of outrage at the crime, remains of importance. If the crime is viewed by society as an abhorrence, then the sentence should reflect that. Retribution is also expressed as the notion that the punishment must fit the crime. (g) Finally, mercy is a factor. A humane and balanced approach must be followed.’ Sentencing must serve as deterrence of others who consider embarking on a life of crime. The message that must go out to others in the community, must be that even though a perpetrator may try to evade the long arm of the law, he will be found, linked to offences and will have to stand his trial and face conviction and sentence. Violent men, who perpetrate violence, must be deterred and they must realise that a lengthy prison sentence will follow whenever they are convicted of such offences. Although the interests of society and the deterrence and sense of conveying the anger of society at the Accused must be reflected in the sentence, the offender must not be sacrificed on the altar of deterrence. This was stated in S v Dodo 2001 (1) SACR 594 (CC) at [38] where the court stated that; Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others bears no relation to the gravity of the offence . . . the offender is being used essentially as a means to another end and the offender’s dignity assailed. Therefore, the most appropriate sentence needs to be imposed which answers to all scrutiny. For these reasons we find the term of 15 years imprisonment adequate and appropriate. National Prosecuting Authority, State’s legal practitioners Ncube and Partners, accused’s legal practitioners 3 HB 116/25 HCBCR 1691/25 3 HB 116/25 HCBCR 1691/25 THE STATE Versus EDSON NDOU IN THE HIGH COURT OF ZIMBABWE NDUNA J with Assessors Mr O. Dewa & Mrs Majenda BULAWAYO 15 JUNE AND 15 JULY 2025 Criminal Trial- Judgment Ms DE Kanengoni for the State Ms L V Nkomo (for Mr N Sithole) for the accused NDUNA J: The deceased was struck by a stone severely injuring him, whereupon he met his death. The accused appeared charged with that murder which occurred on 26 August 2021 at deceased’s homestead. It was at the homestead that a fight broke out in which it is alleged that the accused picked a stone and struck the deceased. The deceased is alleged to have suffered injuries from which he passed on. The accused tendered a plea of not guilty to the charge duly advised by counsel. During the course of the trial the accused prayed for an acquittal at the close of state case. That prayer failed. He then gave his evidence and the court was addressed in terms of section 200 by the legal counsels. The evidence of the state witnesses is very clear. Before that, we would like to emphasise that murder is committed whereupon a person is killed without any lawful justification. In this case, it is apparent that there was a fight involving the deceased and one person named as Forster and the accused. The said Forster did not stand trial as he escaped. The accused joined in the fight on the side of Forster. It is now being taken by the defence that the deceased was struck by the said Forster and on that the accused must be acquitted. Now, if we look at the evidence placed before the court it is very clear on what took place. The evidence of the first state witness was very clear. The witness saw the accused struck the complainant with stones. So, it is clear that the accused was a combatant during the fight that ensued at the beer drink. He was thereat attacking the deceased. Therefore, we can safely state that the accused and Forster both were the combatants and were fighting the deceased. The court in Tshabalala v The State; Ntuli v The State [2019] ZACC 48 stated that a prior agreement is a liability requirement where people act in the furtherance of a common purpose and held that: It is trite that a prior agreement may not necessarily be express but may be inferred from surrounding circumstances. The facts constituting the surrounding circumstances from which the inferences are sought to be drawn must nevertheless be proved beyond reasonable doubt. A prior agreement to commit a crime may invoke the imputation of conduct, committed by one of the parties to the agreement which falls within their common design, to all the other contracting parties. Subject to proof of the other definitional elements of the crime, such as unlawfulness and fault, criminal liability may in these circumstances be established” What is clear from the above is that a person can be found liable if he participates in a crime with another. His conduct is imputed on to the other person and vice versa. We can not successfully argue that the fatal blow was inflicted by Forster, and hence the accused is not liable when the accused was involved in the very fight in which Forster was participating. We need not to have individual assessment of the intention. The accused, when he took to fight in aid of Forster, must have done so in common purpose of the said Forster. Whatever was done by Forster can easily be imputed to the accused. The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime. Burchell and Milton Principles of Criminal Law, Burchell and Milton 2nd ed, at 393. defines the doctrine of common purpose in the following terms: Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime. CR Snyman, in his book Criminal Law 4th ed at 261 points out that the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.” The liability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind. The accused simply noted that Forster was in a battle and he simply joins in. In this case the accused intervened in the fight and delivered two blows. Therefore, obviously there is no way he can escape conviction. The evidence of the first state witness is very clear on the participation of the accused. It was his evidence that the accused threw stones at the deceased and two of the three to four stones thrown found their mark on the deceased. It is the persuasion of the defence that the attacks by the accused were not the cause of death. Even if they were not, accused attacked the deceased during which course the deceased met his death. The doctrine of common purpose extends liability in the same measure to the accused. Nonetheless, in this case we have evidence that the accused threw the stones which in turn hit the deceased. The witness actually describes how the deceased was hit with the stones and his near falling after being hit by the stones thrown by the accused. In view of the course of the attack on the deceased by both the accused and Forster, it will be wrong to seek to separate the attacks for the purpose of the verdict. The attack was given as this by the state witness; So, the deceased went to attack Forster as this was now happening the first accused stood up to join in on Forster’s side to assist. The deceased on getting to Forster he slapped him on his right cheek. The rest of people went there to restrain him. That is when the first accused stood up to square up with the first deceased. It was now a fight between the deceased and the accused. That is now Edward Ndou, the accused picked up stones. The accused picked stones and struck with the first stone here (indicates somewhere in the waist) on deceased’s body. As the deceased was advancing towards the accused, accused picked some more stones. The second stone struck the now deceased here (Indicates side of the mouth jaws). That is when the deceased then supported himself with a stab of tree. Forster then appeared and struck the deceased with a stone here (indicates on the side of the head). Then the accused chased after Onias Mbedzi with some stones. Forster went away after the attack. Clearly a person hit the manner the deceased was hit can not be said to have been murdered by one of the persons who attacked him but by all the persons wo were involved in the attack. Unfortunately, the accused is one of the persons. The above narration is not being disputed by the defence. Accordingly, the accused is found guilty of murder with constructive intent. Reasons for sentence The accused is mature adult who is aged 42 years old. He was about 40 years old when he committed the offence. The accused simply joined the fight without even asking why Forster was fighting the deceased. The Accused has been convicted of one count of murder. It is now the court’s duty to sentence the Accused. Punishment must fit the criminal, as well as the crime, be fair to society and be blended with a measure of mercy. When sentencing an accused, a court is required to consider the four objectives of punishment (deterrence, prevention, rehabilitation and retribution) in view of the triad of factors as set out in S v Zinn 1969 (2) SA 537 (A). These factors are (i) the personal circumstances of the offender, including his character, conduct in life and personality, and everything that influenced the commission of the offence; (ii) the nature and seriousness of the offence committed; and (iii) the interests of the community, including the necessity for a level of uniformity in sentencing. In view of the seriousness of the murder of which the accused is guilty, the legislature has decreed that the court is obliged to impose a maximum penalty of life imprisonment. In considering whether such circumstances exist and, if so, what sentence is appropriate, it is necessary to examine the circumstances of the offence intensively and attempt to determine the exact degree of seriousness of the particular act in respect of which the accused has been found guilty, as well as the personal circumstances of the accused and the interests of the community. It is a requirement of the law that the sentence should be balanced evenly. Sentencing is about achieving the right balance (or, proportionality.) The elements at play are the crime, the offender and the interests of society or, with different nuance, prevention, retribution, reformation and deterrence. Invariably there are overlaps that render the process unscientific; even a proper exercise of the judicial function allows reasonable people to arrive at different conclusions. In S v Van Loggenberg 2012 (1) SACR 462 (GSJ) the court said that a sentence has five important functions (at [6]) which must be adopted here as well. These are listed as follows; (i) It must act as a general deterrent, in other words, it must deter other members of the community from committing such acts or thinking that the price of wrongdoing is worthwhile; (ii) it must act as a specific deterrent, in other words, it must deter this individual from being tempted to act in such a manner ever again; (iii) it must enable the possibility of correction, unless this is very clearly not likely; (iv) it must be protective of society, in other words, society must be protected from those who do it harm; (v) it must serve society’s desire for retribution, in other words, society’s outrage at serious wrongdoing must be placated.’ The five important functions referred to above should also be read with the following 'basic principles pertaining to sentencing’; '(a) The sentence must be appropriate, based on the circumstances of the case. It must not be too light or too severe. (b) There must be an appropriate nexus between the sentence and the severity of the crime; full consideration must be given to all mitigating and aggravating factors surrounding the offender. The sentence should thus reflect the blameworthiness of the offender and be proportional. These are the first two elements of the triad enunciated in S v Zinn [supra] (c) Regard must be had to the interests of society (the third element of the Zinn triad). This involves a consideration of the protection society so desperately needs. The interests of society are reflected in deterrence, prevention, rehabilitation and retribution. (d) Deterrence, the important purpose of punishment, has two components, being both the deterrence of the accused from reoffending and the deterrence of would-be offenders. (e) Rehabilitation is a purpose of punishment only if there is the potential to achieve it. (f) Retribution, being a society’s expression of outrage at the crime, remains of importance. If the crime is viewed by society as an abhorrence, then the sentence should reflect that. Retribution is also expressed as the notion that the punishment must fit the crime. (g) Finally, mercy is a factor. A humane and balanced approach must be followed.’ Sentencing must serve as deterrence of others who consider embarking on a life of crime. The message that must go out to others in the community, must be that even though a perpetrator may try to evade the long arm of the law, he will be found, linked to offences and will have to stand his trial and face conviction and sentence. Violent men, who perpetrate violence, must be deterred and they must realise that a lengthy prison sentence will follow whenever they are convicted of such offences. Although the interests of society and the deterrence and sense of conveying the anger of society at the Accused must be reflected in the sentence, the offender must not be sacrificed on the altar of deterrence. This was stated in S v Dodo 2001 (1) SACR 594 (CC) at [38] where the court stated that; Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others bears no relation to the gravity of the offence . . . the offender is being used essentially as a means to another end and the offender’s dignity assailed. Therefore, the most appropriate sentence needs to be imposed which answers to all scrutiny. For these reasons we find the term of 15 years imprisonment adequate and appropriate. National Prosecuting Authority, State’s legal practitioners Ncube and Partners, accused’s legal practitioners