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Thuso Ndou

Mashudu Netsianda Senior Court Reporter
A 10-year-old boy who was born HIV positive died after a tragic fall after his brother slapped him with an open palm for refusing to take his anti-retroviral medication.Thuso Ndou, 28, of Zezani area under Chief Sitauze in Beitbridge district pleaded not guilty to murder and was yesterday convicted of culpable homicide by High Court judge Justice Lawrence Kamocha.

Ndou heaved a sigh of relief when the Justice Kamocha sentenced him to 526 hours of community service saying he had endured enough pain during his one-year incarceration awaiting trial.

Sentencing Ndou, Justice Kamocha sitting with assessors Stanley Hadebe and Elliot Nyoni said Ndou will be haunted by his brother’s death for the rest of his life.

“The circumstances that dissuaded the court from passing a custodial sentence are that the accused suffered enough when he spent one year incarceration. Understandably, he meant to chastise his brother but it went the wrong way. A young life was lost and Ndou will certainly be haunted by his brother’s death for the rest of his life,” said Justice Kamocha.

He sentenced him to 28 months in prison of which 10 months were suspended for four years on condition he does not within that period commit a similar offence.

The remaining 18 months were further suspended on condition Ndou performs 526 hours of community service starting July 21 at Zezani Police Station.

According to state papers, Ndou started looking after the boy following the death of their parents.

Prosecutors say on July 31 at around 12PM, Ndou ordered the boy who was on anti-retroviral therapy to take his medication, but he refused culminating in the beating.

He slapped the boy on the face and he fell down headlong on a pile of bricks and sustained head injuries.

There was bleeding in the brain and blood gushed out through his ears.

Ndou later tried to administer first aid by pouring water on the boy. He then took him to a local clinic and he died along the way.

The matter was reported to the police resulting in Ndou’s arrest.

The state accepted the limited plea of culpable homicide following a successful application by

Ndou’s pro deo defence lawyer Brighton Sengweni of Mcijo Dube and Partners.

In mitigation through his lawyer, Ndou pleaded for leniency, arguing that he did not intend to kill his brother, but acted out of anger as he wanted the boy to lead a healthy life.

He said the offence was a result of his desire to see the boy lead a normal and healthy life by consistently taking his ARVs.

“The accused had seen the effects of the boy not taking his medication when their parents died   and he feared that if the boy did not take his tablets, it would further complicate his condition,” said Sengweni

He added: “The accused therefore slapped the boy once in a bid to send a message that he should not stop taking the life prolonging drugs. Sadly the accused’s conduct resulted in the boy losing his life.”