11 Jul 2024

Gaborone High Court has sentenced James Ndaba, a Zimbabwe national, to 30 years imprison for the October 30, 2016 murder of Shimane Kereng at Gabane.

Delivering the sentence on Wednesday, Judge Gabriel Komboni said the prison term would effect from the day that the convict was remanded in custody.

He also advised Ndaba of his right to appeal the sentence, if he so wishes, to the Court of Appeal within six weeks from the day of delivering sentence.

Justice Komboni said the convict was sentenced to a prison term after the court established extenuating circumstances.

He explained that extenuating circumstances were facts bearing on the commission of the crime which must be considered to reduce moral blame.

He said such factors included and were not limited to immaturity, intoxication and provocation.

Judge Komboni said as per section 203(2) of the Penal Code, a person who was convicted on a murder charge with extenuating circumstances was subjected to a jail term of not less than 15 years.

He said in passing sentence, he had taken into consideration all issues that were raised by the convict in mitigation.
The convict was also a first offender.

“I have noted that you are a family man, a father of three of which the youngest is a 12-year-old. I had also noted that while in incarceration, you have chosen an exemplary lifestyle,” said Judge Komboni.

Ndaba had indicated in his presentation of extenuating circumstances and mitigation that while in prison, he chose Christianity and was eventually baptised under the Seventh Day Adventist Church.

Judge Komboni added that in passing sentence, the court also considered that Ndaba was convicted of a serious crime of murder.

As it was the case with the convict, Judge Komboni indicated that the deceased was also a family man, who appeared to have not wronged the convict or anyone at the time when he was murdered.

He said based on evidence before court the accused appear to have been abducted and murdered, possibly for his property, which included a car and other valuables.

Justice Komboni said the deceased was found dead with his hands tied behind his back and his neck broken.

He said Ndaba must consider himself a lucky man for being convicted of murder with extenuating circumstances. Judge Komboni said the principles of passing sentence required the court to weigh the interests of the accused person against that of the society.

Therefore, he  said as much as sentence should be seen as meant to destroy the convict, it must also consider the interests of the society, as such an appropriate sentence must be delivered.
In presenting extenuating circumstances, Ndaba had told the court that in 2000, he was diagnosed with a disease that he was still suffering from.

He has told the court that when under attack he would see things that were not seen by other people and would at times feel threatened that people wanted to kill him.

Ndaba recollected at one point being admitted in a medical facility, only to be told after recovering that he was fighting people for no apparent reason.

He added that when under attack by the health condition he suffered memory loss.

He said the condition would get better after getting treatment.

Additionally, Ndaba told the court that in 2019, while in custody for the murder charge, he suffered a severe attack which landed him at Princess Marina Hospital where he was admitted for a month.

Therefore, Ndaba told the court that he could not remember killing the deceased as his memory could have been affected by the disorder, and only learnt from such an incident when he was told about it.

He told the court that his records of the condition that were received prior to the murder incident were left at his residence in his native country, Zimbabwe and that relating to the 2019 attack would be sourced from prison officials.

Prior to delivering the sentence, Judge Komboni said medical reports received from prison officials revealed that Ndaba was suffering from Meningococcal meningitis and therefore the question arising was whether the said condition fell within what was characterised under extenuating circumstances.

He said evidence presented before court failed to shed much light on the circumstances leading to death of the deceased.

Judge Komboni said the conviction was largely based on the fact that Ndaba was found in possession of the deceased cellular phone, only after the commission of the offence adding that nothing much has been led in court to show how the said disease could influence commission of the offence.

However, Judge Komboni said assisted by the evidence from the convict and his attorney, he was able to determine how the disease affected a person.

He said as per the defence attorney’s submissions, Meningococcal meningitis was a serious bacterial infection causing inflammation of the brain and spinal cord membranes altering a person’s mental status and behavioural actions.

Judge Komboni said the accused person had proved the existence of extenuating circumstances and therefore the court was entitled to pass a sentence other than death but not below 15 years. Ends