Newly appointed Supreme Court judge’s son and friends charged with killing and robbing popular Ximex Mall cellphone dealer

Two men accused of taking part in the killing of popular Harare cellphone dealer Sipho Million Ncube have been ordered to mount their defence after the High Court found that the State had presented enough evidence for the case to continue.

Elvin Dongo Saungweme and Dellon David Balani had asked the court to discharge them at the close of the prosecution case, arguing that the evidence did not link them to Ncube’s death. Their application was dismissed by Justice Tommasi in a ruling delivered on August 25, clearing the way for the next stage of a murder trial that has remained before the courts for more than 6 years.

The State alleges that Saungweme and Balani acted together with Munyaradzi Mawadze in a plan to rob and kill Ncube on March 12, 2020. Mawadze’s trial was separated from that of the two men. He is the son of the out-going Masvingo High Court resident Judge, Justice Garainesu Mawadze, who was promoted to the Supreme Court by President Emmerson Mnangagwa last week following the passage of the Constitutional Amendment Act No. 3 which, among other things, allows President Mnangagwa to appoint judges without public interviews.

The murder case centres on a cellphone deal that prosecutors say was used to lure Ncube away from his trading area near the Chicken Slice food court along Angwa Street in central Harare – a place popularly known as ‘Ximex Mall’. The accused allegedly presented themselves as buyers before persuading the dealer to accompany them in a car.

The journey was said to have been headed towards Waterfalls, but the route changed. Court papers state: “The now deceased agreed to accompany the trio to Waterfalls and the accused diverted the route and drove along Chiremba Road passing Epworth going towards Ruwa.”

Along Chiremba Road, the vehicle allegedly reached a secluded area. Prosecutors say Ncube was robbed of three iPhone Pro Max 11 cellphones and an unknown amount of cash before he was attacked with a knife. The State says the dealer was stabbed several times and his throat was slit. His body was later dumped at a farm in Ruwa.

The prosecution case has been built largely on circumstantial and forensic evidence because there was no direct eyewitness account of the killing. A post-mortem examination found that Ncube died from acute anaemia caused by severe neck trauma from an incised wound.

The court heard that blood-stained clothing recovered from Saungweme’s residence was forensically matched to Ncube’s DNA profile. Detectives also recovered a knife from a bushy area in Waterfalls, and blood found on the weapon was linked through forensic testing to the deceased.

Police told the court that Saungweme pointed out the place where Ncube’s body was recovered. Balani allegedly led Detectives to the location where the knife was found. Justice Tommasi said the information given by the two accused, taken together with the forensic findings, was capable of connecting them to the killing.

“There is objective forensic evidence linking the blood found on the clothing recovered from the 1st accused’s residence, as well as that found on the knife pointed out by accused 2 and recovered in Waterfalls, to the deceased,” the judge said.

The judge also considered statements made by Saungweme and Balani during their bail applications. The statements placed the two men in the company of Mawadze and near the relevant locations around the time Ncube was killed. The court heard that their own versions referred to a knife being used to inflict a fatal wound inside a vehicle in a remote area.

“These facts constitute prima facie evidence that he was present in circumstances which implicate him directly or indirectly in the commission of that crime,” Justice Tommasi said in relation to Saungweme’s alleged knowledge of the body’s location and the blood-stained clothing recovered from his room.

The court also found that Balani’s alleged knowledge of where the knife had been discarded was significant, particularly because the blood on the weapon had been linked to Ncube.

“The 2nd accused’s knowledge of the location of the knife, the forensic evidence linking the knife to the deceased, and his own statement placing himself with the other persons at the material time constitute circumstances capable of implicating him,” the judge said.

Justice Tommasi dismissed the discharge application and ordered both men to enter their defence. “On the evidence presently before the court, that question must be answered in the affirmative,” the judge said after setting out the test for whether the case should proceed.

The investigation began after Ncube failed to return home. His relatives became suspicious and reported him missing on the same day. The search later intensified when detectives from the Criminal Investigation Department’s Homicide section took over the matter and formed a team to trace his last movements.

Police detectives were told that Ncube had last been seen with Mawadze, who was then a first-year law student at the University of Zimbabwe. Police launched a manhunt and found Mawadze in Masvingo before bringing him to Harare for further questioning. Police said he admitted to murdering Ncube.

The State further alleges that, after the killing, Mawadze used Ncube’s cellphone to send a text message claiming that the dealer had been kidnapped. The message was allegedly intended to mislead Ncube’s relatives and create the impression that he was still alive but being held by unknown people.

The three accused appeared at the Harare Magistrates’ Court on March 26, 2020. They were denied bail and advised to apply to the High Court. The case was later deferred for routine remand, and the accused were subsequently granted bail.

The proceedings have been marked by a series of applications and changes in the trial arrangements. The trial began at the High Court in September 2022, with Mawadze represented by the veteran constitutional court counsel, Advocate Thabani Mpofu and another lawyer. His legal team applied for the trial to be separated, arguing that Saungweme and Balani had become hostile and were shifting blame towards Mawadze. The application was initially rejected before a later application was granted.

In February 2023, further delays followed when Mawadze’s lawyers asked for more time to study State papers and witness statements. Another application concerned his wish to be represented by two defence counsel. A lawyer appointed to assist him later asked to withdraw after disclosing that he had previously worked with Justice Mawadze and had also been a mutual friend of the deceased. The proceedings were postponed while Mawadze sought legal representation.

The question of who should preside over Mawadze’s separate trial later reached the Supreme Court. Justice Christopher Dube-Banda had been the only serving High Court judge willing to take the case after other judges declined because of concerns arising from the accused’s father being a serving judge. Now, it may even be more complicated since Justice Mawadze is now a Supreme Court judge.

Mawadze challenged Dube-Banda’s continued involvement, arguing that the judge’s conduct during earlier applications showed bias and that his right to a fair hearing had been compromised. The Supreme Court upheld the challenge and ordered Dube-Banda to step aside.

The top court said the case was not suited to a serving judge sitting on the same bench as the accused’s father. It directed that the matter should instead be heard by a retired or foreign judge, a decision that added another layer to a prosecution already delayed by separated trials, applications and changes in legal representation.

For Saungweme and Balani, the latest ruling means the prosecution evidence will now be answered in court. The case rests on the alleged cellphone deal, the journey from Harare towards Ruwa, the recovery of Ncube’s body, the blood-stained clothing, the knife found in Waterfalls and statements that prosecutors say place the two men with Mawadze at the critical time.

The defence phase is expected to determine how the accused respond to the forensic findings and the information they allegedly provided to Detectives. The trial continues.