The first issue for determination was whether the trial court erred in relying on the evidence of accomplice witnesses.

Brian., and Tonderai., the appellant's cousin, were treated as accomplices and warned in terms of the Criminal Procedure and Evidence Act [Chapter 9:07]. There does not appear to have been a basis for the State to treat these two witnesses as accomplices.,. Police arrested the two as they were the ones who were found at the house where they recovered the stolen property. However, there is clearly no evidence to suggest these two witnesses associated with the appellant and others with any criminal intent. These are not witnesses., who at some stage were accessories before or after the fact. BURCHELL and HUNT in., have this to say about an accomplice:

"An accomplice is one who takes part in the commission of the crime, other than the perpetrator(s) and other than the accessory after the fact. Accomplice liability is distinct from that of the perpetrator, being based on the accomplice's own unlawful conduct and fault (mens rea) but it is also liability which is accessory in nature in that there can be no question of accomplice liability without a perpetrator who commits the crime."

The second issue for determination is whether the appellant was properly convicted in respect of the second count on the basis of common purpose.,. The trial court came to the conclusion that the two robberies were planned by all those who were involved. It took note of the modus operandi and concluded that the accused persons must have acted together on both occasions. I find no fault in the reasoning, taking into account the evidence that I have highlighted.

BURCHELL and HUNT have this to say in respect of common purpose:

"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."

It follows from the above that there need not be express agreement to commit an unlawful act. It is essential not to lose sight of the words "actively associate" used in the quote.

In the case of., McNALLY JA had this to say about common purpose:

"The essence of the doctrine of common purpose is that when two or more persons associate in a joint unlawful enterprise, each will be responsible for any act of his fellows which fall within their common design or object.,. Association in a common design or object or purpose is, in this case, the key issue."

The position adopted by the prosecution was that accused two be found guilty of culpable homicide on the basis of the doctrine of common purpose. Whilst conceding there was no evidence that accused two participated in the actual assault of the deceased, the prosecution argued that it was the second accused who played a substantial role in creating the events leading to the fatal assault of the deceased.

Where the doctrine of common purpose is evoked, the second accused can only be convicted if the evidence suggests that the accused two did something to associate himself with the actions of the first accused.

It is clear from the evidence accepted by the court that when accused two went home his main purpose was to go and get his brother, accused one, so that the two would seek revenge, primarily against the deceased.,. The fact that the two brothers had planned for revenge is demonstrated by the conduct of the first accused when he went straight to assault the victims one after the other. There is no evidence that accused two knew that accused one was armed with the screw driver which turned out to be the murder weapon. There is overwhelming evidence that revenge was the common objective.

As a reasonable person, the accused person must have foreseen that in the process of meting out revenge against the deceased, the deceased might be seriously injured in the process. Whilst we are prepared to grant the accused person the benefit of the doubt on the offence of murder itself that cannot be said of the offence of culpable homicide. Our., view is that in encouraging accused one to exact revenge on the deceased, a bona paterfamilias individual, should have taken steps to ensure that the punishment did not exceed acceptable levels.,. To this extent accused two's negligence stands high and remains visible.

The accused persons in this case are charged with three separate counts of murder, assault, and arson. These three counts arise from events which took place in 2000 at Nehanda Resettlement Village, Madziwa.

All five accused pleaded not guilty to the charges against them when trial commenced in December 2006.

At the resumption of the trial, in July 2007, the court was advised that the first accused (Yomence Chaitezvi) had died on 4 of January 2007. This was later confirmed by an affidavit deposed to by his brother.

The trial duly proceeded on the same charges as against the remaining four accused who were now represented by different counsel....,.

State Evidence

At the beginning of its case, the State produced, by consent, the post-mortem report of Dr. Mutamba, dated 8 May 2000 [exhibit 1].

In essence, the report shows that the deceased, Peter Karidza, died as a result of a head injury from the assault perpetrated upon him on the fatal day.

At a later stage, the evidence of Vincent Kambanga, and that of Dr. Mutamba, as contained in the State Summary of Evidence, was also admitted by consent.

Vennas Chimangemange is the deceased's widow.

She testified, that, on the night of 23 April 2000, a group of people gathered outside her homestead chanting political songs. They then began to throw stones at the main house and eventually torched the main house as well as the surrounding structures. At the same time, they called out for the deceased.

When she and the deceased went outside they were attacked by some of the men in the group.

At that point, the first accused (Yomence Chaitezvi) tried to verbally restrain the assailants and took the witness away to the back of the house. Therefore, she could not say whether any of the other accused were present or involved in assaulting the deceased.

When she returned to the front of the house, after about 30 to 45 minutes, she found that the deceased had been severely beaten. The main four-roomed house and five other structures had been destroyed by stones and fire. All the domestic furniture, utensils, and equipment was also destroyed.

The deceased passed away at about 5:00am on the following morning.

Molline Chimangemange is the deceased's daughter.

Her testimony was similar to that of her mother as regards the general picture of what transpired on the night in question. However, her evidence was that she actually saw the first accused (Yomence Chaitezvi) and the second accused (Notice Kida) each strike the deceased once before the others in the group joined the attack.

She was able to see what happened and positively identify the assailants because of the burning huts.

She did not see the third accused (Obert Muchemwa) or the fourth accused (Zvidzayi Marufu) at the scene of the attack. However, she did see the fifth accused (Jacob Kagogoda) running around encouraging the assault, but did not witness him actually assaulting the deceased or causing any fires.

The witness was present throughout the duration of the attack.

The group consisted of about 100 men and about 40 of them took part in the assault.

The deceased eventually lay on the ground after being assaulted for about 30 minutes. The first accused (Yomence Chaitezvi) then told the others to stop.

Savory Hodza was, at the relevant time, the Chizinga District Chairman of the ZANU-PF youth wing. All five accused were office-bearers in the political party in various branches which fell under Hodza's command.

He testified, that, on the night in question, he met and drank beer with the deceased at Muzivi Growth Point. He heard that the second accused (Notice Kida) had planned a meeting at which the deceased was to be summoned. He warned the deceased who then ran away.

On his way home, he passed by Nehanda Village and saw a group of about 50 people, including the second accused (Notice Kida), who had gathered for a “pungwe” about 300 metres from the deceased's homestead. Further along the road he encountered two more groups, of about 50 and 20 people respectively, who were also going to the 'pungwe'. The first group included the first accused (Yomence Chaitezvi) and the second group included the fourth accused (Zvidzayi Marufu).

When Savory Hodza arrived home, about 2 to 3 kilometres away, he saw fires burning over Nehanda Village. Although he was fairly drunk, he walked towards the village. About 300 metres away from the deceased's homestead he observed that all the groups had dispersed.

The witness was arrested as a suspect on the following morning but was later released after recording his statement to the police.

According to Savory Hodza, the second accused (Notice Kida), third accused (Obert Muchemwa) and fourth accused (Zvidzayi Marufu) wanted his position in the party and therefore resented him. They had arranged the gathering in question without his authority and knowledge.

Under cross-examination, he admitted that he had been convicted for public violence and sentenced to 30 months imprisonment in respect of another offence involving political violence in the same area.

Detective Sergeant Nemaisa is a member of the Zimbabwe Republic Police. He was based in Bindura in April 2000.

On 25 April 2000, he was tasked to record warned and cautioned statements from four suspects, namely, the first accused (Yomence Chaitezvi), second accused (Notice Kida), third accused (Obert Muchemwa) and Savory Hodza.

He met the three accused for the first time at that stage.

They corroborated Savory Hodza's statement that he was not present at the scene of the attack and that he knew nothing about it. Each of the three accused was then allowed to write his own statement in three separate rooms. At that time, each accused was unguarded and not handcuffed. Detective Sergeant Nemaisa then confirmed their statements in Shona and translated them into English. Thereafter, the statements were given to the accused to read before they were signed and witnessed.

In their statements, the three accused admitted the charge of having murdered the deceased.

After Detective Sergeant Nemaisa's evidence-in-chief, the warned and cautioned statements of the first (Yomence Chaitezvi), second (Notice Kida) and third accused (Obert Muchemwa) (exhibits 2, 3 and 4) were admitted by consent, subject to challenge under cross-examination.

When cross-examined, Detective Sergeant Nemaisa confirmed that the three accused had understood and signed their respective statements freely and voluntarily and without any duress whatsoever. Moreover, he did not see any visible signs of the accused having been assaulted, nor did they complain of having been assaulted by other police officers.

Inspector Absai Muchemedzi testified that he was involved in attending the scene of the attack on the morning after. He found the body of the deceased covered in bruises and observed that some of the structures at the homestead had been burnt or otherwise damaged. Certain suspects were arrested later that day but he could not recall any of them other than the first accused (Yomence Chaitezvi).

The warned and cautioned statements of the fourth (Zvidzayi Marufu) and fifth (Jacob Kagogoda) accused were compiled and signed over nine (9) months later, in the presence of different police officers who were not called to testify.

These statements were therefore not adduced or admitted in evidence.

Evidence for the Defence

The second accused (Notice Kida) used to reside in Nehanda Village and was a ZANU-PF cell chairman in April 2000.

His evidence was that it was Savory Hodza, in his capacity as the District Chairman, who had convened the ZANU-PF members from the surrounding villages to attend the gathering at the deceased's homestead. He disagreed with Savory Hodza's mission as he knew the deceased as a village elder and because there was a strong probability that violence would occur. Therefore, he and the other Nehanda Village members dispersed to go home, having been told to do so by Hodza.

On his way home, he observed flames emanating from the deceased's homestead. On the following morning, he and the third accused (Obert Muchemwa) were arrested by the police.

When cross examined, Notice Kida accepted that 2000 was a very politically charged year and that the ZANU-PF youth wing was an important element in strengthening the party's base. At that time, it was unheard of that anyone in the locality should belong to the opposition MDC party.

The third accused (Obert Muchemwa) was a senior official of ZANU-PF in the Chizinga District.

His testimony was that from 21 and 24 April 2000 he was attending his father-in-law's memorial service at Batsinarayi Village, about 12 kilometres away from Nehanda Village. He only returned to Nehanda Village on the morning of 24 April, together with his wife and child. He was not aware of Savory Hodza's plan to visit the deceased at his homestead. He was arrested by the police because he was the ZANU-PF political leader in Nehanda Village.

He and Notice Kida were taken to the scene of the attack where he was assaulted for arguing with the police.

The deceased's wife identified Savory Hodza and Yomence Chaitezvi as the perpetrators of the assault upon the deceased. They were both arrested but Hodza was given preferential treatment and was not detained.

Under cross-examination, he accepted that he was not assaulted at the police station and that his arrested colleagues did not complain to him of having been assaulted. Again, he was not assaulted at the time that he signed his warned and cautioned statement, but he denied having read his statement before signing it. As this was the first time that he had been arrested he did not appreciate the significance of signing the statement.

When questioned by the Court, he stated that he had attained 8 “O” Levels in 1990 and a Certificate in Tobacco Culture in 1996 or 1997.

Juliet Kaingidza resides at Batsinarayi Village and is Obert Muchemwa's sister-in-law.

She endeavoured to corroborate Obert Muchemwa's version of his having attended her father's memorial service at her village from 21 to 24 April 2000. However, she contradicted him in one material respect – by stating, with certainty, that he left the village on 24 April on his own and without his wife and child. Moreover, although she could recall exactly the date and time of Obert Muchemwa's departure, she could not remember the month or year when her father had died.

The fourth accused (Zvidzayi Marufu) was an official in the Chitepo Branch of ZANU-PF.

According to him, it was Savory Hodza who directed him to mobilise the members from Chitepo Village. When they arrived at Nehanda Village, he met Yomence Chaitezvi, Notice Kida and Savory Hodza, together with 120 to 150 party members, gathered on a hill approximately 300 to 400 metres away from the deceased's homestead.

He deduced that Savory Hodza was drunk and that his plan to confront the deceased as an MDC sympathiser would probably entail violence.

Zvidzayi Marufu then told the Chitepo members to return to their village and returned home himself soon thereafter. He was surprised the following morning when he heard about the attack on the deceased and his homestead. He was arrested about nine months later.

He signed his warned and cautioned statement after being threatened and slapped by the police.

The fifth accused (Jacob Kagogoda) was also an official in the Chitepo Branch of ZANU-PF.

He testified, that, at the time of the attack on the deceased, he was in bed suffering from malaria. He was under medication and unable to walk. He was arrested much later, in January 2001.

After his warned and cautioned statement was recorded he was assaulted by three police officers. He then signed the statement without having read it....,.

Findings – Murder

In considering the charge of murder, it is necessary to assess the extent to which each accused was or was not present and involved in the events that took place on the night in question. Thereafter, it must be determined whether any or all of them are guilty of murder or some lesser offence.

The evidence against the second accused (Notice Kida) stems from various sources:

(i) Firstly, there is the evidence of Molline Chimangemange who was adamant that he used a stick to assault the deceased on the head. She indicated that visibility was good because of the burning huts and she positively identified the second accused as an assailant. Moreover, she knew him because he was from the same village.

(ii) Secondly, the second accused was also identified by Savory Hodza as having gathered with his group for a “pungwe” about 300 metres from the deceased's homestead.

(iii) Finally and crucially, there is the second accused's warned and cautioned statement in which he made several critical admissions: that he had circulated the letter that resulted in the gathering of ZANU-PF youth at the deceased's homestead; that, although it might not have been agreed to assault the deceased “to death”, it was agreed to assault him in order to “inflict pain”; and that he could not defend the deceased because he was standing outside the homestead.

The third accused (Obert Muchemwa) stated that he was attending his father-in-law's memorial service at the relevant time.

However, his alibi was not satisfactorily corroborated by his sister-in-law and is wholly rebutted by his warned and cautioned statement.

In that statement, he admits the following: that ZANU-PF youth were recruited from neighbouring villages to deal with the deceased's case; that he was invited by the second accused (Notice Kida) to accompany the group to the deceased's homestead where it was planned to assault him, and that the latter was in fact assaulted; and that, although he did not enter the homestead, he “could not go against that (assault) because it is a taboo in our party to go against any planned thing.”

The main evidence against the fourth accused (Zvidzayi Marufu) is that of Savory Hodza, to the effect that he encountered the fourth accused leading a group of about 20 people going to the “pungwe” near the deceased's homestead.

The fourth accused (Zvidzayi Marufu) admits that he was present at the “pungwe” but denies having been involved thereafter and claims to have withdrawn from the planned assault.

The fifth accused (Jacob Kagogoda) was identified by Molline Chimangemange as running around the homestead encouraging the assault. The witness did not know him in person as he was from a different village.

In his defence, the fifth accused's testimony is that, at the time of the attack, he was in bed suffering from malaria and that he was under medication and unable to walk.

As is conceded by State counsel, his alibi was not meaningfully challenged or rebutted.

Elements of Murder and Conspiracy to Murder

On a charge of murder, it must first be established whether the accused's action was the factual cause of the end result, viz. if but for his action, the deceased would not have died when he did.

It must also be shown that there was legal cause, viz. whether it was objectively foreseeable or within the range of ordinary human experience that the accused's action would lead to the death of the deceased.

Where there has been a supervening event, this will not break the causal link between the accused's act and the end result if that subsequent event was foreseeable.

As regards mens rea, it must be shown that there was actual or legal intention to kill.

Legal or constructive intention to kill arises where the accused does not mean to bring about death but continues to engage in an activity after he foresees that there is a real risk or possibility that the activity will result in the death of a person and is reckless as to whether or not death ensues.

Under our law, it is trite that conspiracy is a competent verdict on a charge of having committed the completed crime. It is also trite that a conspirator is liable to the same punishment as the person who has actually committed the principal crime.

A conspiracy to commit a crime is usually defined as an agreement by two or more persons to do an unlawful act or to do a lawful act by using unlawful means.

In essence, there must be agreement as to the criminal object.

There does not have to be agreement on the exact ways and means of putting into effect the plan before conspiracy is committed. Provided that the criminals have agreed on their object, they are guilty of conspiracy even if they are still negotiating towards full agreement on the means to be used in the criminal enterprise: see FELTOE, A Guide to the Criminal Law of Zimbabwe (2006).

Moreover, each conspirator will be responsible for specific criminal conduct committed by any one of the conspirators which falls within their common purpose or design: see S v Chauke & Another 2000 (2) ZLR 494 (S)…, citing BURCHELL and HUNT, South African Criminal Law and Procedure Vol. 1 (3rd ed.)…,.

Again, even where a conspirator withdraws at any stage from the common enterprise, he may be entitled to an acquittal on the main charge but remains liable to be convicted of the offence of conspiring to commit the crime in question: see R v Chinyerere 1980 ZLR 3 (AD)…,.

Verdict

The general picture that emerges from all of the evidence before the Court is that the leaders of various ZANU-PF village groups within the district convened a night time gathering of their respective members, comprising circa 100 men, near the deceased's homestead. The purpose of the gathering, which purpose was agreed by the leaders and understood by their followers, was to confront the deceased at his homestead and assault him for his supposed affiliation with the MDC opposition party.

Given the nature, timing, and object of the gathering, as well as the number of men involved, the leaders present must have foreseen the possibility of the gathering turning so violent against the deceased as to culminate in his death.

The second accused (Notice Kida) was identified not only as having been present but also as having struck the deceased on his head with a stick that was approximately 2ft long.

According to the postmortem report, the cause of death was stated to be “head injury due to assault.”

Nevertheless, in light of the overall attack on the deceased perpetrated by about 40 men, it cannot be stated, with any certainty, that, it was the second accused's particular blow to the deceased's head that was the specific cause of his death.

In the event, it is difficult, on the evidence available, to sustain the charge of murder against the second accused (Notice Kida) on his own.

What the evidence does clearly show is the following:

The second accused (Notice Kida), third accused (Obert Muchemwa) and fourth accused (Zvidzayi Marufu) were all present at or near the deceased's homestead on the night in question.

All three of them held positions of leadership and control over the groups that they had called together at the gathering.

As already stated, they were fully aware of the planned assault.

Additionally, they must have foreseen, and, by unavoidable inference, did foresee, the possibility of the attack on the deceased resulting in his death.

Subsequently, after their followers were unleashed on the deceased's homestead, they either actively participated or did nothing to defuse the situation and avert the attack on the deceased. Moreover, in the aftermath of the attack, they did nothing to report the matter to the police or any other responsible authority.

In short, all three accused conspired, in varying degrees, in the planned assault on the deceased and all three of them foresaw the real possibility of the attack resulting in his death but were reckless as to whether or not death ensued.

In the event, all three accused are acquitted on the charge of murder but are found guilty of the offence of conspiring to murder the deceased.

The accused was being charged as an accomplice i.e. socius criminis.

In the second and third counts, the accused's alleged participation in the crime is not clear.

The background facts are the following.

The accused and the complainant are cousins. The complainant was aged twelve years at the time of the offence. On 15 August 2008, the accused visited the complainant's parents at Crosby Farm, Nyamandlovu. On 15 August 2008, she left for Bulawayo with the complainant, without notifying her parents. On the 16^th of August 2008, the accused brought one Percy Ndlovu to the complainant.

The accused made advances to the complainant on behalf of Percy Ndlovu. The complainant turned down the advances.

Thereafter, the accused stripped the complainant of her undergarments and skirt, and facilitated the said twenty-three year old Percy Ndlovu to have sexual intercourse without her consent. The accused was paid $1.5 trillion by Percy Ndlovu for facilitating this rape.

This is what constitutes the charge in Count One.

These facts were admitted by the accused during the summary trial. During the questioning by the magistrate, she admitted that she removed the complainant's clothes and facilitated the non-consensual sexual intercourse as outlined above. From the accused's answers, and the facts admitted by the accused, the charge in Count one was established.  

The facts in respect of Counts Two and Three are very scant. These are the facts:-

“08. The accused Percy Ndlovu came again on another two different occasions and had sexual intercourse with the victim without her consent.

09. The case came to light when the neighbourhood member of Ticehurst Police Base came and told the victim, and the accused, were wanted at Ticehurst Base, since the victim's mother had reported her as a missing person.

10. The accused had no lawful right to act in the manner he (sic) did.”

It is clear that the accused's participation in Counts Two and Three was not outlined.

It is not clear whether she was present during these two other instances, or whether Percy Ndlovu acted on his own. It is not clear whether the accused facilitated these two Counts.

The canvassing of the essential elements of these two Counts is not helpful either. Her alleged participation in these two Counts were not canvassed at all.

All that the accused admitted was that Percy Ndlovu had sexual intercourse with the complainant on two other instances. She did not admit that she participated in these two as well. She did not say how she became aware of these two instances.

The learned Regional Magistrate, with the benefit of hindsight, concedes that the accused did not admit participating in these two Counts.

In the circumstances, the convictions in Counts Two and Three cannot stand.

The State called Leonard Dube, whose evidence was that on the evening of the 25^th day of September 2007, the accused and his friend, Collin Tsikidze, arrived at his house and invited him to accompany them to town to look for money for beer. When he enquired where they were going to look for money, Collin Tsikidze told him that he was a police officer and, as such, he was going to arrest the kombi drivers who drive without permits.

After patrolling the City Centre without any arrest, he suggested that they go back home, but, the accused refused, and suggested that they go behind a place called Alabama near Khami Bar. During their search for traffic offenders, they eventually found the deceased parked..., near Pine Brothers Supermarket at 8^th Avenue/R. Mugabe Way. Collin Tsikidze informed the deceased that he was under arrest and ordered him to go to the police station.

The deceased complied.

But the deceased was directed to drive to a different direction altogether. Along the way, he asked where they were going, but, the accused rebuked him, saying: “keep quiet.” A few minutes after that, the accused shouted to Collin Tsikidze the following words: “Lister, finish off this person so that we can go.” He also stated that he asked why he was giving such orders, and the accused responded: “shut up, keep your mouth closed.”

At that juncture, Collin Tsikidze produced a pistol.

Upon realizing this, he opened the door and ran away and eventually found his way home after a Good Samaritan had given him bus fare.

The following day, the accused, and Collin Tsikidze, arrived and gave him R200=, and were now driving the deceased's motor vehicle.

The accused gave evidence.

He stated that he is a former policeman and he knew Collin Tsikidze, who was still at large, as a policeman. On the 26^th of September 2007, he met Collin Tsikidze at Pumula, and suggested that they should go to town, and he agreed. On their way, they invited Leonard Dube to accompany them. When they arrived in the city, they walked around until they came across the deceased, who had parked his car near Pine Brothers Supermarket. Collin Tsikidze advised the deceased that he was under arrest for wrong parking, and they ordered him to drive to the Central Police Station. However, Collin Tsikidze diverted him from the route to the Central Police Station to a wrong direction. It is his further evidence that the deceased stopped his car and queried the direction he was now being asked to take.

At that juncture, Collin Tsikidze produced a pistol and he shot the deceased on the head once – and he died. It is also his further evidence that Collin Tsikidze then placed the deceased on the front passenger seat, and he took charge of the motor vehicle. They drove towards Nyamandlovu where they dumped the deceased. Collin Tsikidze searched the deceased and recovered R700= from which he was given R200=. They then drove back to Bulawayo.

On the 3^rd of December 2007, he was in the city when he met Collin Tsikidze. They discussed certain issues which are not relevant to the case, but one important issue is that the accused ended up in possession of..., the pistol, and was later arrested still in possession of the said pistol.

Collin Tsikidze is still at large.

In order to determine the guilt, or otherwise, of the accused, it is pertinent to examine his role in the commission of this crime. The accused was in the company of Collin Tsikidze, and they were looking for money. He is a former policeman. Throughout the night, they were looking for money through illegal means as he was no longer in the force, and Collin Tsikidze was not on duty. He knew that Collin Tsikidze was armed with a pistol. They, together, made an illegal arrest of the deceased.

The accused did notice that Collin Tsikidze had diverted the deceased away from the police station route, but did not dissuade him from doing so. When Leonard Dube asked him where they were going, he rebuked him, telling him to shut up. When Collin Tsikidze produced a pistol, he did not stop him. He knew that the pistol is a lethal weapon and how dangerous it is. The accused, as a policeman, was trained in handling firearms. He, nonetheless, did not stop his accomplice from using it. He remained in the car after the deceased had been shot in cold blood. He accompanied Collin Tsikidze when he drove out of the City Centre, and, in his own words, assisted Collin Tsikidze to dump the body of the deceased along the road, during the night. He also participated in sharing the loot. He accompanied Collin Tsikidze back home. He was also a signatory to the written loan agreement when they borrowed the money from Kenneth Matanhire, and gave the deceased's motor vehicle as security.   

As if this was not enough, upon his arrest on the 3^rd of December 2007, he was found in possession of the same CZ pistol..., which was used in the murder.

All these factors are a clear testimony of the accused's active participation in the commission of this offence. All these chain of events leave indelible fingerprints and signature of the accused.

We find that the accused fully participated in the commission of this crime.

The accused knew that Collin Tsikidze was armed before the shooting. He did not dissociate himself, like one Leonard Dube. He also continued to be part and parcel of what was going on.

We reject the accused's version of events.

The applicant is charged with incitement to commit kidnapping or unlawful detention, and also with intent to commit assault...,.

In its summary of the State case, the State alleges that sometime between 2002 and 2006 the accused and one Peter Michael Hitschmann conspired to depose a lawful Government through acts of violence, insurgency, banditry, sabotage and terrorism.

The facts, as outlined by the State before the trial court, are as follows.

On 9 May 2009, the appellant and four accomplices, three of whom are now deceased, entered Malilangwe Trust Estate in Chiredzi to hunt rhinoceros. The appellant, who was driving a Toyota Hilux registration number ABE 2449 dropped off his accomplices about three kilometres into Malilangwe Trust Estate. The accomplices were to pursue the spoor of rhinoceros which they intended to shoot and kill for their horns. A team of police detectives and game scouts, who had observed the appellant dropping off his accomplices, then kept the accomplices under surveillance. The appellant's accomplices, and the detectives and game scouts then met in the bush. As the detectives and the game scouts tried to arrest the poachers the poachers shot at them and a heavy exchange of gunfire ensued. Three poachers were shot dead and one escaped. The police detectives recovered two rifles, a 303 rifle..., and a 306 rifle..., fitted with a telescope, a 303 gun bag, 52 live rounds of ammunition, and an axe. The appellant was arrested by the police detectives at about 18:30 hours whilst parked within Malilangwe Trust area. They carried out a search and recovered two live rounds of ammunition behind the seat. The deceased poachers' jackets were also found in the appellant's truck.

In his defence outline, the appellant stated as follows. He said that he denied the allegations. On Saturday 9 May 2009, in the morning, one Albert Svuure approached him and asked that he escort him to Mvuma for the purpose of collecting his colleagues so that they could proceed to Malilangwe Trust in order to poach. Albert Svuure said that he and his friends wanted to hunt rhinoceros and that they would pay him the sum of US$500= for providing them with transport. He agreed. Albert Svuure then took two guns and an axe which he said they were to use during the poaching. Albert Svuure placed these at the back of the front seat. They then proceeded to Mvuma where they collected one Mpofu, who was himself in the company of a friend. They then proceeded to Chiredzi via Masvingo. In Chiredzi, they went to Croco Motors where Albert Svuure and Mpofu went away for about ten to fifteen minutes. When they returned, they were in the company of a man clad in blue overalls. The man in the blue overalls sat in the front passenger seat and gave directions to the appellant as he drove them all to Chiredzi. From Chiredzi turn-off, they travelled for about 30km along the Chiredzi-Mutare road. The man in the blue overalls then advised him to turn left and follow a secluded path into a bushy area. After driving for about one to one and a half kilometres into the bush the appellant was instructed to stop. The three men took their guns and advised him to go back to Chiredzi and return to collect them at around 19:00 hours in the evening. They then went into the bush. When the appellant returned to the same place in the evening to collect them he was arrested by the police. The appellant stated that he knew nothing, had not participated in the criminal activity in any way, and that the ammunition found in his motor vehicle was left there by Albert Svuure.

Counsel for the appellant also submitted that as no hunting took place because of the exchange of fire that ensued, and resulted in the unfortunate death of three members of the gang, the appellant was rather a conspirator and not an accomplice to hunting. There is no evidence that any hunting took place. The would-be hunters met their demise before they could carry out their planned mission.

The basis for the appellant's prosecution appears to be a contention that he was part and parcel of the planned scheme to hunt rhinoceros in Malilangwe Trust Estate. That he was a willing participant is clear-even on his own version of events. He was advised in no uncertain terms what the planned expedition entailed, and he was clearly told what his role in the whole scheme was. He agreed to perform his own part of the scheme well-knowing that the whole intended operation was illegal. We therefore agree with counsel for the appellant that the appellant was a conspirator in the intended scheme or expedition. Section 273 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows -

“A person charged with any crime may be found guilty of –

(a) Threatening, incitement, conspiracy or attempting to commit that crime or any other crime of which the person might be convicted on the charge; or

(b) Assisting a perpetrator of that crime or of any other crime of which the person might be convicted on the charge.”

In casu, there was no hunting but there certainly was conspiracy to hunt. The appellant, with full knowledge of the proposed operation, and with the full knowledge that the planned operation was illegal, willingly agreed to be part of and perform a crucial part in the unlawful affair. The Concise Oxford Dictionary defines the word “conspiracy” in the following terms –

“act of conspiring; combination for unlawful purpose, plot;”

and a “conspirator” as –

“one engaged in a conspiracy.”

In S v Beahan 1991 (2) ZLR 98 ..., GUBBAY CJ..., stated –

“In general, a conspirator is liable for the crime perpetrated by his co-conspirators. But, where he has effectively withdrawn from the conspiracy he does not remain liable for the commission of any subsequent criminal acts. The terms “withdrawal” and “dissociation”, which are often used in this context of the law refer to voluntary action by a conspirator which is legally effective to terminate his relationship to the conspiracy....,. The dominant policy of the law in allowing such a defence is to encourage the conspirator to abandon the conspiracy prior to the attainment of its specific object, and, by encouraging his withdrawal, to weaken the group which he has entered.

In R v Chinyerere 1980 ZLR 3 (AD) at 8E; 1980 (2) SA 576 (R AD) at 579G; LEWIS JP said that:

“...., a conspirator can withdraw from the enterprise even at the last moment, and, in the event of his withdrawal, he is entitled to his acquittal on the main charge, and is liable to be convicted only of the offence of conspiring to commit the crime in question.” ...,.

and at 121D-F:

“I respectfully associate myself with what I perceive to be a shared approach, namely, that it is the actual role of the conspirator which should determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. I would venture to state the rule this way: Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner something further than a communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required.  To the extent, therefore, that the principle enunciated in R v Chinyerere supra at 8E is at variance, I would, with all deference, depart from it.”   

I am aware that there is no debate in the instant matter as to whether or not the appellant withdrew, or dissociated himself, from the enterprise. He, in fact, played a prominent, though complementary, role that was meant to ensure the successful completion of the illegal mission. As fate would have it, his intended role of providing essential and necessary transport out of the Trust area was overtaken by events. But that is of no immediate relevance to his criminal liability. The above dicta are cited merely for their assistance in exposing, or clarifying how the law views a conspirator. Indeed, when the provisions of section 273 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were brought to counsel for the appellant's attention he indicated that he had not had regard to it earlier but that on his reading of it it was clear that the appellant's conduct, and participation, placed the appellant within its ambit.

We agree with him.

The first and second accused pleaded not guilty to a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that they murdered the deceased on 18 November 2008. The deceased was their paternal grandfather. They were staying with him in Mhondoro. Their father had died, and their mother stays in Epworth in Harare.

The accused persons were charged with murder. The State alleged that they planned to eliminate the deceased. Accused One armed himself with a knobkerry and went to where the deceased was sleeping in the verandah. He, while Accused Two stood guard, struck the deceased twice on the head.

Accused One's defence is that he acted in self defence when the deceased had cornered him in a corridor.

He said the deceased was armed with a raised spear. He struck the spear from the deceased's hand. The deceased remained standing in the corridor blocking his escape route. He then struck the deceased once on the head to create an escape route, and escaped. He thereafter sent Accused Two to go and see the injury he had caused. Accused Two made a report to him and they, together, went to see the deceased's injuries after which they devised a plan to allege that thieves had invaded the homestead and injured the deceased.

Accused Two's defence is that he did not participate in the struggle between Accused One and the deceased.

He said the deceased came to their room before 04:00am, looking for Accused One. He was armed with a spear. Accused One was not in the room having gone to attend a traditional ceremony in the village. He reported this to Accused One when he came back at 04:00am. Accused One then said maybe the deceased had come because they had delayed in going to plough the fields.

Accused One went to collect cattle harnessing equipment. He there met the deceased and came back and told him that he had struck the deceased with a stick. He asked him to go and observe the deceased's condition. He did and brought a report to Accused One. He later went back to the deceased with Accused One, after which they connived to allege that thieves had invaded the home so they could blame the deceased's injury on the thieves.

Evidence was led by the State and the accused persons. There were no independent eye witness's to the murder.

The State relied on the evidence of Elizabeth Chanengeta and the accused person's confirmed warned and cautioned statements.

Elizabeth Chanengeta was the deceased's wife and is the accused's grandmother. She was asleep when the incident took place. She was woken up by the accused persons after the deceased had already sustained the injury which caused his death. Her evidence is therefore merely on what she witnessed after the fatal blow had been delivered.

The postmortem report does not support the delivery of two blows as alleged in the State Outline. It confirms Accused One's evidence that he struck the deceased once on the head to create an escape route. The deceased had cornered him in a corridor.

Accused One's warned and cautioned statement refers to his delivering two blows. Accused One however explained it by saying the first blow was to the spear and the second to the deceased's head. We accept that explanation as it is supported by medical evidence.

The probabilities favour the accused person's explanation.

If the accused persons had planed the murder, as alleged by the State, they would have killed the deceased, who lay helpless in the corridor, before calling out that thieves had invaded the homestead.

Why would they risk his surviving to narrate what had happened?

We are convinced the deceased was injured in the circumstances narrated by the accused persons.

After the determination of the above the following facts became common cause:

The accused persons are the deceased's grand children. They stayed with him and his wife in Mhondoro. They are the deceased's late son's children. Their father died leaving them in the custody of their paternal grandparents. Their mother stayed in Epworth with their two siblings.

The accused persons were not happy with their living conditions. Their grandfather, the deceased, used to wake them up before dawn to go and plough fields. That, according to their mother, was his way of life even during the period she stayed with him as a daughter in law.

On the fateful night, Accused One attended a traditional ceremony and came back home at 04:00am. He received a report from Accused Two that the deceased had been looking for him and that he was carrying a spear. He assumed that the deceased wanted them to harness cattle and go to the fields to plough. He went to get cattle harnessing tools from where they are kept. He carried a T shaped curved stick he said they used whenever they go to the fields to plough. He entered a corridor from which he was to access the room where the harnessing tools were kept.

While he was in that corridor, he saw the deceased coming from behind, armed with a raised spear. The first accused struck the spear with the stick he was carrying and it fell down. The deceased then stood in the passage unarmed. The first accused struck him on the head with the stick. The deceased fell to the ground. The first accused went back to their room and told Accused Two what he had done. He sent Accused Two to go and see the deceased's condition. Accused Two came back and reported that the deceased condition's was serious. They went back to the scene, saw the deceased's condition and agreed to report to their grandmother that thieves had invaded the homestead so that they would blame the deceased's injuries on the alleged thieves.

They gave chase to the imaginary thieves until their grand mother called them back fearing that they would be injured. They came back and took their grandmother to where the deceased was. They saw that his condition was critical. The news of the incident started spreading in the village. As people gathered at the homestead, the accused persons agreed to hide the stick Accused One had used. Accused Two threw it into a blair toilet.

Arrangements were made to take the deceased to a clinic. The clinic could not attend to him due to the seriousness of the injuries. They later attempted to take him to the District Hospital but he died on the way.

The police came while Accused One, and others, were taking the deceased to hospital. Accused Two, who was at home, told them that the deceased had been attacked by thieves. They went back to their station and came back after the deceased had died and his body had been brought back home. Accused Two, again, told them that the deceased had been attacked by thieves. They took him to the police station, where, after further questioning, he owned up and told them the truth, that, the deceased had been struck on the head by Accused One.

Accused One was arrested.

The accused persons recorded warned and cautioned statements in which they told the police that Accused One had struck the deceased in the circumstances explained in Accused One's statement.

At the time of the deceased's death, Accused One was no longer going to school. The parties are not agreed as to whether or not Accused Two was still going to school. It is however common cause that he had previously been taken by his mother, to Harare, where he attended a school she had secured for him. He however ran away from that school and walked from Harare to Mhondoro on foot. He chose not to go back to his mother's house in Epworth.

This demonstrates the second accused's preference as to where he wanted to stay despite the deceased's demand of hard work from the accused persons.

There are minor differences between the State's and defence evidence. These are on peripheral issues and do not contribute to the determination of the question whether or not the accused persons are guilty of the offence charged.

Accused One

It is apparent from the common cause evidence that Accused One is raising the defence of person as provided in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9;23] (the Code).

Section 253 of the Criminal Law (Codification and Reform) Act (the Code) provides as follows;

“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if -

(a) When he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) His or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she believed, on reasonable grounds, that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack; and

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct -

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

Self defence or defence of person can be a complete defence if all the requirements set out in subsections (1) (a to d), are satisfied.

The first accused's uncontroveted evidence established that he, on the fateful night, came from a traditional ceremony at 4:00am. He received a report that the deceased was looking for him and was armed with a spear. He believed that the deceased wanted him and his young brother, Accused Two, to go and plough as was the norm at the deceased's home.

He took a stick he said they normally use when they go to the fields to plough. He proceeded to the room where cattle-harnessing tools were kept. While he was in a corridor leading to that room he saw the deceased behind him armed with a spear. The spear was raised up ready to attack. He struck the spear with his stick. It fell to the floor, but, the deceased remained standing in the corridor blocking his escape route. He struck the deceased once on the head. The deceased fell down and the first accused escaped.

He went to their room where he instructed Accused Two to go and check on the deceased's condition. The second accused told him that the deceased had been seriously injured. They went to the scene together and later devised a plan to divert attention from Accused One by alleging that thieves had invaded the homestead.

When these facts are applied to section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), it becomes clear that;

(a) The first accused reacted to an unlawful attack which was imminent. The deceased held a raised spear in his hand.

(b) The first accused's conduct, in striking the spear, was necessary to disarm the deceased. He had no other means of escaping from the raised spear. He then struck the deceased once on the head. He said the deceased was blocking his escape route. He had received a report that the deceased was looking for him armed with a spear.

Counsel for the State argued that once the spear was on the floor the first accused should have simply run past the deceased or pushed him aside as he was a 79 year old man.

Counsel for the accused submitted that the first accused was acting under stressful conditions. He feared the deceased would pick the spear and use it to stab him.

The question which arises is whether the first accused believed, on reasonable grounds, that his conduct was necessary to avert the unlawful attack and that he could not otherwise escape from or avert the attack.

The history of the deceased and the accused's relationship comes into play.

The first accused, in his evidence, said the deceased was a violent man who did not hesitate using any weapon at hand. The accused's grandmother indirectly confirmed this when she confirmed an incident in which the deceased chased away the accused person's mother with a spear when she came to pay her condolences to her in-laws on the death of her husband. The accused persons' mother confirmed the incident.

There was also the issue of the birth certificate the first accused had asked the deceased about resulting in his being threatened with being stabbed with a spear.

In my view, the first accused must have reasonably believed that striking the deceased was a necessary means of escaping from the deceased's imminent attack. He said he feared the deceased would pick up the spear and use it on him. The accused's reasoning is supported by the fact that he struck the deceased once and ran away. The post-mortem report confirms that only one blow was delivered. If his intention was to kill the deceased he would have delivered further blows. The fact that he did not confirms that he merely wanted to clear his escape route.

He thereafter sent Accused Two to check on the deceased and subsequently came back to the scene with him.

He did not use these opportunities to inflict further injuries on the deceased.

This proves the first accused merely wanted to escape from the corridor where he believed the deceased had cornered him.

(c) The fact that the first accused struck the deceased once, and escaped from the corridor, confirms that the means he used to avert the unlawful attack was reasonable in all the circumstances. The fact that he merely wanted to escape is demonstrated by his not inflicting further harm when he had the opportunity to do so.

(d) The deceased was armed with a spear. The first accused was armed with a stick. It is obvious that the deceased's weapon was more dangerous than the first accused's. When he struck the spear down he did not decide to pick it and use it, though he feared the deceased would pick it and use it on him. His striking the deceased with the stick is, in the circumstances, not grossly disproportionate to the harm that could have been caused by the deceased's unlawful attack with a spear.

In determining whether or not the requirements specified in subsection (1) have been satisfied, I have considered the relationship between the deceased and the first accused.

They did not enjoy a good relationship as explained above.

The deceased used to display aggression towards the accused. The accused found himself having to go and harness cattle at 4:00am because the deceased was looking for him with a spear. As he went to collect the harnessing tools the deceased followed him from behind with a raised spear. That must have caused the first accused to extremely fear for his life. He was, as a result of the history already narrated, a child living under stressful circumstances. He feared the deceased and must have been spurred by his knowledge of the deceased to act in the manner he did.

It would be taking an armchair approach to expect him to have reacted other than he did.

He acted in the spur of the moment. He did not have time to rationalize things, as one would in the comfort of a courtroom or a judge's chambers.

I would, in the circumstances, find that the first accused acted in circumstances where self defence should be accepted as a complete defence to the charge he is facing.

My view, that the first accused is entitled to a complete defence, is strengthened by the provisions of section 255 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) which provides as follows;

“If a person genuinely, and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence in terms of this Part to any criminal charge in all respects as if his or her belief were in fact correct.”

This means, even if the first accused genuinely, on the reasonable grounds explained above, but mistakenly, believed that the deceased would pick up the spear and stab him, he would still be entitled to a complete defence.

The mistake would be genuine in view of it being made by a juvenile, in a moment of fear, in the absence of time within which he could nicely weigh the pros and cons of the action he was to take.

Section 255 of the Criminal Law (Codification and Reform) Act applies to any criminal charge, and, therefore, includes a charge of murder.

The first accused is therefore found not guilty and is acquitted.

Accused Two

Accused Two did not, as alleged by the State, participate in the delivering of the blow which caused the deceased's death. He should not have been charged as an actual perpetrator but as an accessory after the fact. He therefore cannot be convicted on the charge of murder as he only took part after the fatal blow had been delivered.

Counsel for the accused submitted that the accused cannot be convicted of murder as he only assisted after the fatal blow had been delivered and before the deceased had died. He submitted that Accused Two's case must be treated as that of an accessory after the fact. He relied on the case of S v Mungati & Another 1999 (2) ZLR 1 (H)…, where CHINHENGO J said;

“An accessory after the fact is one who, after the crime has been completed, aids or abets the principal perpetrator by conduct which deprives the owner of his rights. An accessory after the fact cannot be convicted of the principal offence on a charge of murder: see R v Mlooi & Ors 1925 AD 131.”

Counsel for the State conceded that Accused Two cannot be convicted of murder as he assisted Accused One after the fatal blow had been delivered. He however submitted that he should be convicted as an accessory after the fact to the crime of murder as he gave false information to the police after the deceased had died.

The determination of criminal trials, after the codification of our Criminal Law, must be based on the provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). The former common law positions, as pronounced through case law, must yield to the provisions of the Code if there is a difference between the precedents created by case law and the clear provisions of the Criminal Law (Codification and Reform) Act (the Code).

Where the Criminal Law (Codification and Reform) Act (the Code) modifies Roman-Dutch law, its provisions must be followed. Case law based on Roman Dutch law, before its modification by the Code, can only be followed to the extent relevant to the provisions of the Code. In other circumstances, it can only be used as a guide in interpreting the provisions of the Criminal Law (Codification and Reform) Act.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides as follows;

“(1) The non-statutory Roman Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law.

(2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of -

(a) The criminal law referred to in subsection (1); or

(b) The criminal law that is or was in force in any country other than Zimbabwe.”

In this case, I will analyse the two situations from which the liability of Accused Two can be determined. These are;

(i) What he did after the first accused had struck the fatal blow, but before the deceased died; and

(ii) What he did after the deceased had died.

Accused Two's acts before the deceased died

Accused Two assisted the first accused after the fatal blow had been delivered. He can, if the facts of this case proves it, be convicted of assisting the first accused as provided in section 273(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

Section 273 of the Criminal Law (Codification and Reform) Act provides as follows;

“A person charged with any crime may be found guilty of -

(a)…,.; or

(b) Assisting a perpetrator of that crime or of any other crime of which the person might be convicted on the charge; if such are the facts proved.”

An accused who assists the actual perpetrator, after the commission of the offence, is, in terms of section 206 of the Criminal Law (Codification and Reform) Act (the Code), an accessory after the fact.

In this case, Accused Two rendered assistance, after Accused One had delivered the fatal blow but before the deceased had died. He, when the deceased was still alive, lied to their grandmother and the police that the deceased had been attacked by thieves. He, when the deceased was still alive, hid in a toilet, the stick Accused One had used to attack the deceased.

For one to be an accessory after the fact to any crime he or she must have acted in a manner that conceals the crime committed by the actual perpetrator or helped the actual perpetrator to evade justice.

When the second accused acted as described above there was no murder to be concealed.

Section 206 of the Criminal Law (Codification and Reform) Act (the Code) provides as follows;

“Any person, other than an actual perpetrator of a crime, who -

(a) Knowing that an actual perpetrator has committed a crime; or

(b) Realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator or to any accomplice of the actual perpetrator any assistance which enables the actual perpetrator or accomplice to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime, after it has been committed, shall be guilty of being an accessory to the crime concerned.”

The elements of the crime of being an accessory after the fact are therefore;

1. Knowledge that the actual perpetrator has committed a crime, or the realization that there is a real risk or possibility that the actual perpetrator has committed a crime, and

2. Rendering the actual perpetrator or his accomplice assistance which enables him to conceal the crime or to evade justice, and

3. The assistance must be rendered after the crime has been committed.

In this case, the second accused rendered the abovementioned assistance to the first accused before the deceased died. He cannot therefore be found guilty of being an accessory after the fact to the crime of murder which had not been committed when he rendered the abovementioned assistance.

It is, however, obvious that when he rendered assistance to Accused One, he was aware, and had realized, that Accused One had committed a crime. He might not have known exactly what crime had been committed, but that does not matter.

In terms of section 207(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code):

“(1) A person may be found guilty as an accessory to a crime even if -

(a)…,.

(b) The person is only aware of the fact that the conduct of the actual perpetrator is unlawful but unaware of the nature of the crime committed by the actual perpetrator or the manner in which it was committed;…,.”

This means, in an appropriate case, the accused can be convicted as an accessory after the fact of the crime which had been committed at the time he rendered assistance even if at the time of rendering assistance he did not know what crime had been committed. He must however believe that a crime has been committed, and, with that knowledge, render assistance to conceal it or help the actual perpetrator to evade justice.

In this case, Accused One had delivered the fatal blow when Accused Two rendered assistance. He was, sent, to observe the deceased's injuries. He went back to Accused One and reported, the seriousness of the injuries he saw. He then went back to the scene with Accused One and again saw the injuries Accused One had inflicted on the deceased. It was after this that they agreed to allege that thieves had invaded the homestead to divert attention from Accused One.

Accused Two later hid the stick Accused One had used in a blair toilet.

An offence had been committed, and Accused Two should be convicted as an accessory after the fact of it, if that offence is a competent verdict to the crime of murder.

In terms of section 47 of the Fourth Schedule to the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), infanticide, culpable homicide, or any crime of which a person might be convicted if he or she were charged with a crime of infanticide or culpable homicide, are permissible verdicts to a charge of murder.

Infanticide is obviously not relevant in this case. It is only culpable homicide and its competent verdicts which calls for consideration.

Accused Two cannot be convicted of culpable homicide as death had not occurred when he rendered the abovementioned assistance to Accused One.

In terms of section 49(e) of the Fourth Schedule to the Criminal Law (Codification and Reform) Act (the Code) assault is a competent verdict to a charge of culpable homicide.

An assault had clearly taken place when the second accused rendered assistance to Accused One. The second accused could therefore have been found guilty of assault if he had not done anything after the deceased's death.

Accused Two's acts after deceased's death

In this case, Accused Two gave false information to the police about what had caused the deceased's death. He told them that the deceased's death was a result of injuries inflicted on him by thieves who had invaded their homestead. This was after the deceased had died on the way to hospital and his body had been brought back to the homestead.

He, while still at the homestead, told the police that the deceased had been attacked by thieves who invaded the homestead. He was taken to the police station where he continued to give the police false information. He only owned up after further questioning. In his own words, he said he told the police the truth after they quizzed him. He was then clearly concealing the murder which, he believed, had been committed by Accused One.

In terms of section 208(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) giving false information to a police officer, or other person in authority, concerning the circumstances of a crime, renders the giver of false information an accessory to the crime.

“Without limiting the expression, any of the following forms of assistance, when given to an actual perpetrator of a crime, shall render a person liable as an accessory to the crime in terms of this Part -

(a)…,.

(b)…,.

(c)…,.

(d) Giving false information to a police officer or other person in authority concerning the circumstances of the crime or the whereabouts of the actual perpetrator.”

The second accused gave false information to police officers, whom he knew were investigating the cause of the deceased's death. He deliberately gave them false information to conceal the true circumstances of the crime.

He must therefore be found guilty of being an accessory after the fact to the crime of murder.

Effect of Accused One's Acquittal on Accused Two's case

It sounds illogical that Accused Two, who merely assisted Accused One, whose acts caused the deceased's death, should remain in the latch. This is however not accidental. The Legislature foresaw it and intended it. Section 207(1) and (2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides for such a situation as follows;

“(1) A person may be found guilty as an accessory to a crime even if -

(a) The person lacks capacity to commit the crime committed by the actual perpetrator; or

(b) The person is only aware of the fact that the conduct of the actual perpetrator is unlawful but unaware of the nature of the crime committed by the actual perpetrator or the manner in which it was committed; or

(c) The actual perpetrator is unaware of any assistance rendered by the person; or

(d) The assistance the person renders does not in fact enable the actual perpetrator to conceal the crime or to evade justice.

(2) Where a person renders assistance to another person in circumstances which would make him or her guilty as an accessory to a crime, but for the fact that the person to whom he or she renders assistance is entitled to rely upon a defence which excuses that other person from liability or reduces that other person's liability for the crime concerned -

(a) The first-mentioned person shall be guilty as an accessory to a crime as if the person to whom he or she renders assistance were an actual perpetrator; and

(b) The first-mentioned person shall not be entitled to rely upon that defence unless he or she would be entitled to rely upon it if he himself or she herself were charged as an actual perpetrator of the crime concerned.”

The legislature, in section 207(1)(a) to (d) of the Criminal Law (Codification and Reform) Act intended to attach liability to an accessory after the fact even if;

1. He or she lacked capacity to commit the offence committed by the actual perpetrator, or

2. He or she does not know what offence the actual perpetrator had committed, but is only aware that the actual perpetrator's conduct is unlawful; or

3. The actual perpetrator is not aware that the accessory rendered him or her assistance; or

4. The assistance rendered does not conceal the actual perpetrator's crime or help him or her to evade justice.

It is clear that the legislature intended to punish any conduct that helps actual perpetrators to conceal their crimes, or to evade justice. In short, even an unsuccessful attempt should attach liability.

In section 207(2) of the Criminal Law (Codification and Reform) Act, the Legislature goes further to provide, that, the accessory will be guilty even if the actual perpetrator raises a defence which entitles him to an acquittal. That means, an accessory after the fact will remain in the latch when the actual perpetrator escapes liability.

The accessory's ability to escape through the same defence is restricted by section 207(2)(b) of the Criminal Law (Codification and Reform) Act, which provides that the accessory can only rely on the same defence “if he would be entitled to rely on it if he himself were charged as an actual perpetrator of the crime concerned.”

In this case, the second accused could only rely on the defence of self-defence, or defence of Accused One if he himself had been under attack, or Accused One had been under attack in his presence.

Accused Two was not at the scene where Accused One was under the deceased's unlawful attack. He cannot therefore rely on the defence which entitled Accused One to be acquitted.

The requirements of that defence do not apply to his case.

He was personally never under an imminent unlawful attack from the deceased. Accused One, whom he could have acted in defence of, was on his own when he fell under the deceased's unlawful attack. Accused Two only heard of the deceased's unlawful attack from Accused One long after it had ceased. He could therefore not have acted against the deceased and claimed the defence of defence of person.

If, for example, Accused Two, had, on being sent by Accused One to check on the deceased's injuries, had attacked the deceased because he had had a scuffle with his brother, Accused One, that would not have been an act in defence of person but one of revenge. The defence of person cannot be applied in retrospect. It is therefore not available to Accused Two. The defence of person can, in fact, not be raised against his giving false information to the police.

Accused Two's liability, for assisting Accused One to conceal the cause of the deceased's death and to evade justice can, therefore, not be avoided.

The evasion of justice occurs even in a case where the actual perpetrator would, if charged, be able to, raise a defence which entitles him to an acquittal.

Justice involves the investigation, trial, and determination of a case. Preventing any of these by giving false information to the police or person in authority to conceal the act, or prevent its investigation, trial and determination is an act aimed at evading justice.

The second accused persistently gave false information to police officers who were investigating the deceased's death.

He is therefore found guilty as an accessory to the crime of murder.

These are two applications in which the applicants, who are husband and wife, seek review of the criminal proceedings at the Magistrates' Court of Tsholotsho.

The applicants were jointly charged with two other people, namely Cowboy Moyo and Mkhululi Moyo, of armed robbery in contravention of section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).

On 15 April 2010 the Magistrate delivered judgment in which he convicted the four of them.

The applicants were convicted as accessories after the fact…..,.

At the trial, it was common cause that after robbing the complainant, Cowboy Moyo and Mkhululi Moyo, who are brothers, carried the stolen property to the applicant's home where they surrendered the property to the applicants in the early hours of the morning of 29 January 2010. In fact, both applicants admitted having received the property and hiding it in their granary from where it was recovered by the police after they had conducted a search. It was also common cause that Cowboy Moyo and Mkhululi Moyo had given the applicants the firearm they had used in the commission of the offence, which the applicants hid in a trunk from where it was later recovered by the police after a search.

Although Cowboy Moyo had testified that himself and Mkhululi Moyo had been sent by the applicants to go and commit the robbery, the magistrate does not appear to have believed that story. In fact, he convicted the applicants on the basis of their own admissions and not on the testimony of their co-accused. In his judgment, the magistrate made the following observations which are telling indeed:

“Accused 2 was not telling the truth as to his whereabouts at the time of the robbery. The State has proved that he was with accused 1. That is why he was to 'assist' in carrying the property to accused 4's homestead. The accused 1 committed the offence of armed robbery with his brother accused 2. They used a firearm, knife and a whip to induce submission to the taking of the property and cash. Accused 3 and 4 were not there. Accused 3 and 4 only assisted after the commission of the offence. They both knew that the property had been stolen or was the subject of the robbery. They received the property at night and hid it in the granary. The 'tool' they hid in a trunk…..,. It is nonsensical for accused 3 and 4 to say that they put the property in the granary out of fear that a 7 year old brat could burn it. What of the gun that they put in the kitchen. They knew it was a gun…,.. The accused 3 and 4 actually concealed evidence of the commission of the offence by hiding it in a granary and not telling the police where the property and the gun were.”

It was for these findings that the magistrate convicted both applicants “as accessories after the commission of the crime of the armed robbery.”

Section 206 of the Criminal Law Code provides -

“Any person, other than an actual perpetrator of a crime, who –

(a) Knowing that an actual perpetrator has committed a crime; or

(b) Realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator any assistance which enables the actual perpetrator to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime after it has been committed; shall be guilty of being an accessory to the crime concerned.”

As I have already stated…., the State case is based on the common law doctrine of common purpose or conspiracy to commit a crime which has now been codified under section 188 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides that:

“(1) Any person who enters into an agreement with one or more other persons for the commission of a crime in terms of this code or any other enactment -

a) Intending by that agreement to bring about the commission of the crime; or

b) Realising that there is real risk or possibility that the agreement may bring about the commission of a crime; 

Shall be guilty of conspiracy -

(2) For an agreement to constitute conspiracy -

a) It shall not be necessary for the parties -

(i) To agree upon the time, manner and circumstances in which the crime of the conspiracy is to be committed; or to know the identity of every other party to the conspiracy;

b) It shall be immaterial that - 

(i) The crime which is the subject of the conspiracy is to be committed -

by one both or all of the parties to the agreement; or

(ii) One or more of the parties to the conspiracy, other than the accused, did not know that the subject matter of the agreement was the commission of a crime.”

To found liability on the basis of common purpose, conspiracy or collaboration to commit a crime GARDINER and LANDSDOWN South African Criminal Law and Procedure Vol.1. 6th edition 1957…, states that:

“If two or more persons form a common intention to prosecute an unlawful purpose and to assist each other therein, then each one of them is a party to, and liable to punishment for, every act committed by the other or others in the prosecution of that purpose which was or must have been known to be a probable consequence of such prosecution…,.

Common purpose is a term which usually implies the presence of the mental element of intention or design. But as has appeared on p.144 supra, two or more persons may be so connected with such an offence, e.g. in culpable homicide so associated by common purpose to do the unlawful act or acts which caused the death as to become jointly and severally liable for the unlawful result, without the contemplation of death or the recklessness which would be necessary to constitute murder – see R v Geere & Others 1952 (2) SA 319 (A.D.). It is not essential that the same intent or absence of it should be imputed to each of the persons associated in a common purpose: thus, one may be convicted of murder and another of culpable homicide – R v Hercules 1954 (3) S.A. 826 (A.D.)…,.

In several well known cases it has been held sufficient for the prosecution, seeking to establish knowledge on the part of the accused to show that the late, as a reasonable man, ought to have foreseen the consequences in question.”

The long and short of it all is that anyone who is shown to have associated himself or herself at the material time with the group that eventually killed the deceased in the process of resisting police orders to disperse has a case to answer.

The State has led evidence that tends to link some of the accused persons to the commission of the crime. Some were identified by State witnesses actively attacking the deceased and his companions while others were encouraging, aiding and abating the commission of the crime. One was observed by his victim throwing a stool at him in a lit bar. Some accused persons well-known to police details under attack were observed and heard to shout obscenities; “matatya ngaauraiwe” that is to say “frogs must be killed” in furtherance of the common purpose to resist police orders to disperse.

It is therefore necessary to look at the defence of each accused person to see if he or she has a case to answer.

1.  Accused One. Tungamirai Madzokere

This accused person is the local councillor. He admits having attended the T-Shirt Visibility Day celebrations on 29 May 2011 at Glenview 4 Shopping Centre. He voluntarily contributed $10= to buy meat for the braai or barbecue. He accompanied the group to Glenview 3 later in the day. He was present at Glenview 3 Shopping Centre when the police arrived leading to the commotion that led to the deceased's death. He, however, denies having participated in the confrontation that led to the deceased's death. His defence is that at the time of the commotion he was drinking beer in the Council park with Gladys, Nohlahla and Yvonne Musarurwa, among vendors, while Nohlahla's shoe was being repaired by a cobbler.

Inspector Spencer Nyararai, stationed at Glenview Police Station, had prior knowledge of the accused as a frequent visitor to the police station. It was his testimony that he observed the accused participating in the commission of the offence on the day in question. He saw him among people who were in front of Munyarari Bar chanting slogans and shouting “Uraya datya”; “kill the frog.” His evidence was amply corroborated by other State witnesses including Constable Solomon Mushaninga.

It is needless to say that the accused's defence also places him squarely at the scene of the crime. It again establishes an association with the group that eventually killed the deceased. His admitted presence and association with the marauding, violent, crowd undoubtedly establishes a prima facie case for the accused to answer.

I accordingly come to the conclusion that accused one, Tungamirai Madzokere, has a case to answer concerning the deceased's death.

2. Accused Two. Yvonne  Musarurwa

Her defence is that she actively participated in the T-Shirt Visibility Day celebrations organised by the Provincial Youth committee on the day in question, that is to say 29 May 2011. At the time of the commotion, she was drinking beer in the Council park in the company of the first accused, Nohlahla and Gladys while Nohlahla's shoe was being repaired by a cobbler at the entrance to Munyarari Bar where the police were eventually attacked leading to the deceased's death.

The State led evidence to the effect that she was observed by eyewitnesses, including Constable Mushaninga and Inspector Spencer Nyararai, actively participating in the crime chanting party slogans and encouraging members of her group to attack the police. Inspector Nyararai knew her very well prior to the commission of the offence.

This accused person's presence at the scene of the crime and close association with the marauding group of youths that eventually resisted and attacked the police lead inexorably to the conclusion that the State has established a prima facie case against her. The accused, Yvonne Musarurwa, has a case to answer in respect of the deceased's death. She is accordingly placed on her defence.

3. Accused Three. Rebecca Mafukeni

On 14 August 2013, this court received the sad news from State counsel that Accused Three, Rebecca Mafukeni, is now late. It is trite that death terminates criminal proceedings against any accused person.

The Court shall therefore refrain from pronouncing its verdict on the application for acquittal at the close of the State case.

4. Accused Four. Last Mayengehama

This accused's defence is that commonly known as an alibi. He flatly denies having been anywhere near the scene of the crime at the material time. He claims that he was at the City Sports Centre attending a church service of the United Family International Church led by prophet Emmanuel Makandiwa. The service was conducted by Pastor Kufa as prophet Makandiwa was not present. He may call at least four people who accompanied him to church on that day to confirm his defence.

There are, however, State eyewitnesses who claim to have seen the accused at the scene of the crime actively participating in the commission of the crime. Constable Solomon Mushaninga, who was in the company of the deceased when he met his death, gave a graphic description of the accused's peculiar features as fitting the description of one of his attackers who threw a stool at him inside Munyarari Bar. He identified the accused by his dark complexion, medium built and swollen forehead. That description fits the accused.

The evidence led by the State tends to link the accused person to the commission of the crime notwithstanding his alibi. His liability falls to be determined on the credibility of the evidence one way or the other. Thus, the State case establishes a prima facie case against the accused. It is accordingly ordered that the accused, Last Mayengehama, be and is hereby placed on his defence.

5. Accused Five. Lazarus Mayengehama

This accused person is a brother to the fourth accused, Last Mayengehama. His defence is that at the material time he was employed in Botswana but he was back home on a visit and residing at House Number 4712 - 58^th Crescent Glenview. He denies being a politician or political activist. He states, in his Defence Outline, that on the day in question he remained at home while his wife and others went to church. His wife found him at home upon her return from church around lunchtime. After lunch, he was joined by Micah Muzambi and Willard Magaya in drinking beer at home. His relatives, who had gone to church in the morning, started to trickle home round about this time. He only learnt of the disturbances at the shops from his wife who had been to the shops around 4pm. He was surprised to be arrested during a night police raid. At 44 years of age he is no longer a youth and as such he could not have been participating in the said MDC-T youths activities.

He intends to call his drinking mates to confirm his alibi - but is yet to confirm their availability.

Despite his spirited denial, Inspector Nyararai identified him as one of the persons he saw participating in the commission of the crime. It was his testimony that he knew the accused prior to the commission of the offence because he had previously seen him at Glenview 4 earlier that day.

Unless Inspector Nyararai is mistaken or deliberately telling a lie there is reason to place the accused on his defence so as to test the veracity of his defence of an alibi. The accused's guilty or otherwise falls to be determined on the credibility of evidence when everything has been said and done. It is accordingly ordered that the accused, Lazarus Mayengehama, be and is hereby placed on his defence.

6. Accused Six. Gabriel Shumba Banda

This accused person's defence is that he was employed as a pool table attendant at Munyarari Bar. At the time of the commotion which led to the deceased's death he was inside the bar attending to his duties. He witnessed youths clad in MDC-T regalia entering the bar and proceeding to the back of the building. Shortly thereafter, he observed the police entering the bar armed in riot gear. He frantically locked up and fled, together with others, at the first sign of trouble.

The police were rather naive in their investigations in that they failed to check whether the accused was, in fact, employed in that capacity at Munyarari Bar. The State's failure to rebut the accused's defence in that respect can only lead to the inescapable conclusion that the accused was at Munyarari Bar for an innocent purpose.

I have carefully gone through the evidence against this accused person. Apart from his presence at the scene of the crime, there is nothing to show that he participated or conspired in any way with the deceased's attackers. He has a perfectly innocent explanation for his presence at the scene of the crime when the deceased met his death.

The operation of his defence, as appears in his Defence Outline, has not been shaken in anyway. For that reason, nothing is to be gained by placing him on his defence. The State, having failed to establish any evidence upon which a reasonable court, acting carefully, might convict, this court has no option apart from absolving him from any wrongdoing.

The accused is accordingly found not guilty and acquitted.

7. Accused Seven. Phenias Nhatarikwa

This accused person's defence is that he is employed by the MDC-T party as a driver. On the day in question he was on duty attending to the T-Shirt Visibility Day at Glenview 3 Shopping Centre. At or about the time of the disturbances he was at the scene of the crime attending to his duties with an MDC-T pickup truck. He had been called by one of the youths' leaders to ferry utensils and empty bottles.

As he arrived at Glenview 3 Shopping Centre he noticed police in riot gear arriving in a police vehicle and he decided to drive off. As he was driving off he was stopped by Accused Two, Yvonne Musarurwa, in the company of Accused One, Tungamirai Madzokere, and others who appeared to be fleeing from the commotion. He then drove off to avoid being caught in the crossfire.

The State led evidence to the effect that a truck was seen being used as a gate-away vehicle from the scene of the murder. The accused's presence at the scene, with a truck, and his association with the group of persons responsible for the death of the deceased renders him a prime suspect in the commission of the offence. He needs to be questioned on the extent and nature of his participation and involvement in furtherance of the group's cause. Is it likely that he could have failed to render assistance to his colleagues who were fleeing from the scene after they had stopped him? That can only be explained by the accused and his co-accused when he takes to the witness stand. The accused, having associated himself with the group that allegedly killed the deceased, the onus is on him to satisfy this court that his association with the group was innocent. Because of his admitted involvement in the group's activities at the scene of the crime, he is also duty bound to satisfy this court that he dissociated himself from the group's cause to resist police orders.

For those reasons, this court is satisfied that the accused has a case to answer. It is accordingly ordered that Accused Seven, Pheneas Nhatarikwa, be and is hereby placed on his defence.

8. Accused Eight. Stefani Takaidzwa

This accused person's defence is that he is a committee member for Harare Province in the MDC-T party. On the day in question, that is to say 29 May 2011, he spent the entire day at home save for the brief moment when he visited Kuwadzana Shopping Centre in the company of his wife around 1400 hours.

A perusal of the record of proceedings shows that the State has failed to lead any credible evidence tending to link the accused to the commission of the offence. That being the case, he is accordingly found not guilty and acquitted at the close of the State case.

9. Accused Nine. Stanford Mangwiro

This accused's defence is that of an alibi. He denied being at the scene of the crime. In his Defence Outline, he states that at the time of the commission of the offence at Munyarari Bar in Glenview 3 he was in Mbare with his girlfriend Tarirai Shelter Tugwete and one Elvis. He only got back home in Budiriro around 1800 hours after the offence had already been committed.

The State came nowhere near rebutting his alibi. It alleged, without proof, that the accused was seen participating in attacking the police. The Investigating Officer, Chief Inspector Ntini, sought to rely solely on the inadmissible evidence of police informers whom he was not prepared to disclose or call to give evidence in court.

Apart from the inadmissible hearsay evidence of police informers there was no credible evidence linking this accused person to the commission of the offence. That being the case, the court has no option but to hold that the State has failed to establish a prima facie case against the accused at the close of its case.

The accused, Stanford Mangwiro, is accordingly found not guilty and acquitted at the close of the State case.

10. Accused Ten. Cynthia Fungai Manjoro

This accused person is a young lady of 26 years of age. She was arrested on allegations that a motor vehicle registered in her name was seen at the scene of the crime aiding and abetting the commission of the crime charged.

It, however, emerged at the trial that, in fact, the accused was nowhere near the scene of crime at the material time. Her brother, called as a State witness, confirmed her defence that she was at church while her motor vehicle was in the possession of her boyfriend, one Darlington Madzonga, when the offence was allegedly committed.

Darlington Madzonga has since fled and has gone into hiding as a fugitive from justice. Upon discovering that Darlington Madzonga had fled from justice, the police decided to arrest and charge the accused using her as bait to capture her cowardly boyfriend. A real man does not flee from danger leaving his woman in trouble that he has created. The police's conduct in this respect was, however, unprofessional and smacks of high handedness. The State compounded the police's errors by placing this accused person on remand with the full knowledge that she had no case to answer. For that reason, it will be a gross travesty of justice for her trial to proceed beyond the closure of the State case.

It is accordingly ordered that the accused, Cynthia Fungai Manjoro, be and is hereby found not guilty and acquitted at the closure of the State case.

I now turn to deal with the cases of the following accused persons as the evidence against them is similar in nature.

11.   Accused Eleven. Stanford Maengehama.

12.  Accused Twelve. Linda Musiyamhanje.

13.  Accused Thirteen. Tafadzwa Billiat.

14.  Accused Fourteen. Simon Mudimu.

15.  Accused Fifteen. Zwelibanze Dube.

16.  Accused Sixteen. Simon Mapanzure.

The common denominator among the six (6) accused persons is that they were all alleged to have been observed participating in the commission of the offence by police informers who were not called to testify against any of the accused persons. Their evidence, as presented through the Investigating Officer, is hearsay and to that extent inadmissible and of no benefit to the State case.

All the accused persons deny any involvement in the commission of the offence. Each one of them relies on the defence of an alibi. In each case the State has failed to rebut the operation of that defence.

In any case, in the absence of any evidence linking the accused to the commission of the offence the duty to prove their respective defences does not arise. In the circumstances of this case, the court cannot but find that the State has failed to establish a prima facie case against each of the six (6) accused persons.

It is accordingly ordered that the six (6) accused persons be and are hereby found not guilty and acquitted at the closure of the State case.

17. Accused Seventeen. Edwin Muingiri

This accused person's defence is that on the day in question, that is to say 29 May 2011, he was selling airtime at Glen View 4 Shopping Centre. He mixed and mingled with the MDC youths who were clad in their party regalia to show that the party was still active in the area. They were merrymaking, drinking and roasting meat.

When the youths dispersed, around 1400 hours, he remained behind gathering empty bottles and dishes. Later on, he decided to follow the youths to Glen View 3 to recover some empty bottles from the youths. On his way to Glen View 3 he met someone who advised him that there were police in riot gear at Glen View 3. He then decided to abort his journey to Glen View 3 Shopping Centre. He therefore denies having been at the scene of the crime at the time of the deceased's death.

It is common cause that the police ordered the group of youths celebrating the MDC-T T-Shirt Visibility Day at Glen View 4 to disperse on account that the gathering was unlawful as it had not been sanctioned by the police. It follows that the group's relocation to Glen View 3 Shopping Centre was an act of defiance.

On the facts of this case, it can safely be inferred that the accused, who was mixing and mingling with the defiant youths, was well aware of the police order to disperse. His act in deciding to follow the youths to Glen View 3 after they had been ordered to disperse by the police was equally an act of defiance. He therefore consciously made it his common purpose to resist police orders - an act which eventually led to the deceased's death.

The accused, having closely associated himself with the cause of the group being blamed for the deceased's death, he bears the onus of establishing that there was no collusion on his part and that he timely dissociated himself from the common design to resist police orders to disperse. For that reason, the court finds that the accused has a case to answer.

It is accordingly ordered that the accused, Edwin Muingiri, be and is hereby placed on his defence.

It is convenient to deal with the following three accused persons at once as the evidence against them has a lot in common.

18. Accused Eighteen. Augustine Tengenyika.

19. Accused Nineteen. Francis Vambai.

20. Accused Twenty. Nyamadzawo Gapara.

The three accused persons are members of the MDC-T party. They were arrested on 5 June 2011 on their way to an MDC-T political rally. The kombi motor vehicle in which they were travelling was diverted by ZANU-PF youths who handed them over the police. They are alleged to have attacked and chased after the police at Glen View 3 Shopping Centre on 29 May 2011 resulting in the deceased's death. 

They denied that they were anywhere near the crime scene on the day in question. They gave their defences of an alibi right from the onset. They had spent the whole day assisting a builder, one Brightmore Chidziva, to build a house in Budiriro 4. While building the house, they frequented Budiriro Shopping Centre to buy beer. They knocked off around 5:30 hours.

The Investigating Officer, Chief Inspector Ntini, initially denied in his evidence in chief that the three accused persons had advanced the defence of an alibi upon their arrest. When confronted with irrefutable evidence that they had, in fact, raised the defence in their warned and cautioned statements, he made an about turn and said that he had received verbal reports from his officers that the alibi had been checked and it could not be confirmed.

Apart from the police's failure to deal effectively with the accused's defence of an alibi, the State failed to lead any credible evidence linking the accused to the commission of the offence. The State sought to rely on the inadmissible hearsay evidence of police informers who were not called to give evidence in court. There being no credible evidence led by the State against the accused at the closure of its case the court can only come to the conclusion that it has failed to establish a prima facie case against the accused persons according to law. The three accused persons are accordingly found not guilty and discharged at the close of the State case.

21. Accused Twenty-One. Oddrey Sydney Chirombe

This accused person is the MDC-T councillor for Ward 33 Budiriro. Like the other accused persons before him, the State sought to rely on the inadmissible hearsay evidence of police informers who were not called to testify against him. The accused denied the charge saying that he spent the day at home until 1400 hours when he left for a beer drink at Micky Job Bar in Budiriro 3. He intends to call his eldest daughter to corroborate his evidence in this respect.

In the absence of any other admissible evidence linking the accused to the commission of the offence, it cannot be said that the State has established a prima facie case against the accused at the closure of the State case. For that reason, it is accordingly ordered that the accused, Oddrey Sydney Chirombe, be and is hereby found not guilty and acquitted at the closure of the State case.

22. Accused Twenty-Two. Jephias Moyo; and

23. Accused Twenty-Three. Abina Rutsito.

Both accused persons are employees of the MDC-T party. The 22^nd accused, Jephias Moyo, is employed as a Shop Manager in the party's regalia shop whereas the 23^rd accused, Abina Rutsito, is employed in the Security Department of the party.

Their defence is that they both live very close to Glen View 4 Shopping Centre. They normally drink at that place. On the day in question they were at Glenview 4 Shopping Centre drinking beer as usual. When they got to their usual drinking place they noticed MDC-T youths. Some of them were clad in MDC-T t-shirts. They enquired and were advised that the youths were celebrating their T-Shirt Visibility Day to demonstrate the existence of their party.

Despite being employees of the party, they kept to themselves and did not join in the celebrations. They did not relocate to Glen View 3 with the youths when they were dispersed by the police. They left Glenview Shopping Centre late that day without having set foot at Glenview 3 Shopping Centre where the deceased was killed.

Apart from the discredited evidence of police informers who were not called as witnesses against both accused persons, the State had no other credible evidence linking them to the commission of the offence. Both accused, Jephias Moyo and Abina Rutsito, are, accordingly, found not guilty and acquitted at the closure of the State case.

The same line of reasoning applies to the following accused persons;

24. Accused Twenty-Four. Tendai Maxwell Chinyama.

25. Accused Twenty-Five. Memory Ncube.

26. Accused Twenty-Six. Kerina Gweshe Dhewa.

27. Accused Twenty-Seven. Solomon Madzore; and

28. Accused Twenty-Eight. Lovemore Taruvinga Magaya.

The five accused gave various alibis as their respective defences. In the case of Accused 27, Solomon Madzore, his alibi was actually confirmed by the police. Like the 10th Accused, Cynthea Manjoro, he suffered the same misfortune of being arrested and incarcerated despite the confirmation of his alibi by the police.

Apart from the discredited evidence of police informers, who were not called as State witnesses, there was no other evidence linking the five accused persons to the commission of the offence.

They are, accordingly, found not guilty and acquitted at the closure of the State case.

29. Accused Twenty-Nine. Paul Nganeropa Rukanda 

This accused person is the MDC-T Organising Secretary for Glenview. He is 34 years of age. In his Defence Outline he admits having attended the MDC-T T-shirt Visibility Day Celebrations at Glenview 4 Shopping Centre to see how the proceedings were progressing. Despite such involvement, he denies having been part of the youths activities as his responsibilities lie with the main wing.

It is his defence that after monitoring events at Glenview 4 he went straight home. He denies ever going to Glenview 3 Shopping Centre on that day. Although the State has not provided independent evidence linking the accused to the commission of the offence, his own admission of involvement and association with the group's cause provides a nexus between the accused and the commission of the offence.

The accused, having associated himself with the cause of the group suspected of having killed the deceased, he has a case to answer. He has the onus of proving that his association with the group was entirely innocent. The court needs to know, as a matter of fact, how, and at what point in time, the accused stopped associating with the group suspected of have killed the deceased. That being the case, the court comes to the conclusion that the accused has a case to answer.

It is accordingly ordered that the accused, Paul Nganeropa Rukanda, be and is hereby placed on his defence.

In the final analysis, it is ordered that the following accused persons be placed on their defence:

1. Tungamirai Madzokere.

2. Yvonne Musarurwa.

3. Last Mayengehama.

4. Lazarus Mayengehama.

5. Pheneas Nhatarikwa.

6. Edwin Muingiri.

Accused 4 tried to be smart by minimizing his own participation in the assault of the deceased. What he alleged he did would not make sense if his explanation is juxtaposed with the credible evidence of Sikhumbuzo Mpala and other witnesses.

Having heard and assessed the evidence of the State against Accused 1 to 4 and weighed it against that of those accused persons, it is clear that these accused persons are placed at the scene of the crime. They actually also place themselves there as well….,.

Clearly, the evidence of the accused persons has an air of surrealism about it.

The evidence of the two young State witnesses can be considered, for the youthfulness, to be consistent, composed and possessed of a quiet air of dignity. The quality of their presentation is persuasive and we find no reason whatsoever to impeach their evidence. The same goes for Village Head Ndukwana whom we found to be an impressive witness.

The evidence of the State far outstrips that of the accused persons. We therefore find, as a fact, that the four (4) accused persons had an opportunity, during the almost three (3) hours they spent between Gokwe Centre and Mukombagumi, a distance of 30km, to assault the deceased and inflict the swelling injuries on his face which were observed by the State witnesses. We find, as a fact, that only five (5) people – Tinoziva, Rozias, Tawanda, Tarisai and Tafara accompanied the accused persons to Ndukwana's homestead and they were joined by Tinashe. We find, as proved, that the accused persons are the ones who assaulted Village Head Ndukwana and Leroy Ndukwana. They are the ones who also assaulted the deceased at Ndukwana's homestead. On this day in question, the accused persons deliberately avoided any involvement of law enforcement agencies because they set about to act outside the law. We discern a pattern in their behaviour which is curious indeed namely that of;

(a) Abducting people and forcing them to come with them against their will. They abducted Isheunesu, Moses, the village boys at Mukombagumi, Tinashe and Village Head Ndukwana and forced them to do as they pleased.

(b) They claimed to be police officers and/or soldiers. This they did at Mukombagumi, Tinashe's home and Ndukwana's home in order to coerce people to do their bidding.

(c) They had this readiness to use force to get what they wanted. This they did on Isheunesu, Moses, Ndukwana and Leroy.

(d) Can it be said that they did not do the same on the deceased at Ndukwana's home after their frustration of failing to get their goods? They had the motive to assault the deceased; that is;

(i) Their goods had been stolen.

(ii) They had come a long way from Gokwe, through the night and across a flooded river, only for Leroy to flee.

(iii) They had failed to catch Leroy or to find their groceries after the search.

(iv) Only for the deceased to tell them that he had sent them on a goose chase to stop them from assaulting him further.

In our view, this was the breaking point. They lost control and vented their anger and frustration on the deceased with devastating consequences.

Can it be said that any of the Accused persons dissociated themselves from the activity as to fall outside the realm of liability?

Accused 1 presented a defence that each time the deceased was subjected to assault he would step in to stop the assault. Accused 4 presented himself as having been a disinterested person who was warming himself by the fire when the assault on the deceased was taking place.

The State witnesses, which we have already believed, stated that all the accused persons participated in the assault of the deceased. They denied that any of them was a disinterested onlooker. Village Head Ndukwana said only one of them, who was walking away and had reached the edge of his yard, shouted that they should leave the deceased and that they should all go back. Even if we were to assume that it was Accused 1 who said that, it cannot, by any stretch of the imagination, be regarded as dissociation from the crime.

In any event, even if we were to believe Accused 4, he would still be caught under the web of section 196 of the Criminal Law Code [Chapter 9:23] which provides:

“(1) Subject to this section, where -

(a) 2 or more persons knowing associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and

(b) Any one of the persons referred to in paragraph (a) (“the actual perpetrator”) commits the crime; and

(c) Any one of the persons referred to in paragraph (a) other than the actual perpetrator (“the co-perpetrator”) is present with the actual perpetrator during the commission of the crime;

the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) If the State has established that 2 or more accused persons -

(a) Were associated together in any conduct that is preparatory to the conduct which result in the crime for which they are charged; or

(b) Engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged;

and that they were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, then it shall be presumed, unless the contrary is shown, that –

(c) They knowingly associated with each other for a criminal purpose; and

(a) The crime actually committed -

(i) Was the crime for the commission of which they associated with each other; or

(ii) Was, if not the specific crime for the commission of which they associated with each other, a crime whose commission they realised was a real risk or possibility.”

In light of these provisions and the conduct of the accused persons from the time they congregated at Gokwe Centre, through Mukombagumi and right up to the misfortunate events late that night at Ndukwana's homestead, it is clear that they associated with each other in such a way that none of them can escape liability.

Looking at the manner in which the deceased was attacked at Ndukwana's residence it can be said that while pursuing their objective, the death of the deceased was foreseeable but the accused persons persisted that notwithstanding. Otherwise, you do not attack a human being as a group, the way the deceased was attacked as he lay on the ground, with booted feet, open hands, and logs without foreseeing death as an outcome.

The two accused persons clearly acted in common purpose and were indeed a tag team from the moment they attacked the deceased to the time they disposed of his body and right up through the robbery of Nkosilathi Sibanda. 

Therefore, the conduct of one is imputed on the other.

All the accused persons were not credible witnesses.

Accused 1 was under the spell of Accused 3 who is his brother and lifelong benefactor. He says he is the person he looks up to for help each time he has a problem. This explains why he was hell-bent to take the flake for everything arising from the demise of the deceased while shielding away Accused 3.

Accused 2 also tried hard to exculpate Accused 3 and not himself. He claimed that they assaulted the deceased, in the presence of their boss, of their own volition. We find this extremely unlikely. The manner in which they stood akimbo as the deceased fled without doing anything, until Accused 3 bellowed the instruction that they give chase, exposes Accused 1 and 2 as Accused 3's foot soldiers who acted only on the instructions of Accused 3.

We therefore find as proved that -

(1) The three accused persons acted in concert when they went to apprehend the deceased at his homestead and caused him to sit in between Accused 1 and 2 in the vehicle.

(2) They acted in concert when they tied his hands with a shoe lace accusing him of having stolen Accused 3's gold ore.

(3) Accused 3 was a very bitter and angry man, as he had lost a considerable amount of money.

(4) They acted together in causing the deceased to lie on his tummy on the ground and assaulted him.

(5) They were acting together when they chased the deceased into the bush to apprehend him.

The deceased died as a result of injuries sustained as a result of the assault perpetrated on him by Accused 1 and 2 during the time that he was in the custody of the three accused persons.

Accused 3 presented a defence that he dissociated himself throughout from the conduct of Accused 1 and 2.

The State witnesses we have already believed stated that not only did Accused 3 give orders for the deceased to be assaulted, he also kicked the deceased once. In addition to that, we draw attention to the provisions of section 196 of the Criminal Law Code [Chapter 9:23] which provides:

“(1) Subject to this section, where -

(a) 2 or more persons knowingly associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and

(b) Any one of the persons referred to in paragraph (a) (“the actual perpetrator”) commits the crime; and

(c) Anyone of the persons referred to in paragraph (a) other than the actual perpetrator (“the co-perpetrator”) is present with the actual perpetrator during the commission of the crime;

The conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) If the State has established that 2 or more persons -

(a) Were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(b) Engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged;

and that they were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, then it shall be presumed, unless the contrary is shown, that -

(c) They knowingly associated with each other for a criminal purpose;”

Looking at this provision, Accused 3 cannot escape liability for the conduct of Accused 1 and 2 which is imputed upon him as well.

The final issue to be determined is whether the State has proved a case of murder.

The evidence led on behalf of the State is to the effect that the accused persons thrashed the deceased using switches which could not be expected to cause his death. The witnesses said they wanted to force the deceased to confess and when he confessed they wanted him to offer more than the goat that he offered. Eventually they would take him to the police.

We do not have any reliable evidence of what transpired in the bush when Accused 1 and 2 caught up with the deceased. There exists a lingering doubt as to whether they assaulted him using different weapons from the switches that had been used earlier or that he sustained fatal injuries due to the fall.

That doubt must certainly benefit the Accused persons.

The doctor who conducted the post mortem report observed the following marks of violence;

“(a) Multiple bruises with whip lashes all over the body especially the back.

(b) Blood from the tongue, mouth and nose.”

He concluded that the cause of death was multiple injuries and multiple assaults.

In our view, there is no evidence upon which we can safely convict the accused persons of murder with constructive intent.

What we have is a case of accidental or negligent killing as shown by the manner in which the accused persons desperately tried to revive the deceased. In the result, all accused persons are found not guilty and acquitted of murder. 

Assuming, however, that I am wrong in this exposition of criminal law principles, there is another reason why Accused 2 should be found guilty of assault.

This reason is to be found in the doctrine of common purpose. 

According to this doctrine, if X is an accomplice to Y in a criminal enterprise, X will be liable for crimes committed by which fall with their common design. X is guilty because he participated in Y's crime with the necessary mental state; that is he participated knowing or foreseeing that Y would commit the crime in question.

How, from the evidence of the State witnesses, it would be naïve to deny that Accused 2 was an accomplice to his two co-perpetrators. It can also not deny that their common design was to assault the deceased. It should be noted that according to the doctrine of common purpose, the actus reus is the participation in the criminal enterprises and not what each individual member of the gang did. To illustrate this point, in casu, it would be neither here nor there that one of them did not kick the deceased while the other two did as long as it was foreseeable that the others would assault the deceased in that manner.

The facts of the matter are these….,.

The deceased was seventy-one (71) years old at the time of his death.

On 18 January 2004, the appellant and his accomplice proceeded to Modena Farm, Sherwood in Kwekwe where the deceased resided on his own. They intended to steal from the deceased. Upon arrival, the two jumped over the electric fence using a wooden pole in order to avoid getting electrocuted.  Once they gained access into the deceased's yard the appellant and his accomplice spent the night in the yard waiting for the deceased to wake up. When the deceased was conducting a perimeter check of the fence in the morning they attacked him with iron rods. The appellant struck the deceased on the head several times with the iron rod until he fell down. They continued to strike the deceased on the head and all over the body until he died. The appellant and his accomplice then carried the deceased's body and buried it in a shallow grave. They went into the house and stole the deceased's property. They also took off their clothes and wore the deceased's clothes. They loaded the stolen property into the deceased's truck, a Mazda B2000 registration number 623-073C, and drove away from the premises.

Along the way they met Mr Andries Van Heerden who was the deceased's neighbour. He recognised the deceased's motor vehicle which was being driven by the appellant's accomplice. He became suspicious as he knew that the deceased did not have any employees. He followed the motor vehicle and blocked it with his car. The appellant and his accomplice then stopped the car. Mr Van Heerden recognised the appellant as he once worked for him. The appellant and his accomplice abandoned the car and left the scene. Mr Van Heerden drove to the deceased's home and contacted one Schalk Burger. They forced open the gate and after a search of the yard, discovered the body of the deceased buried in a shallow grave. A report was made to the police. The police exhumed the body and recovered the iron rods that were blood stained. Mr Van Heerden drove the deceased's motor vehicle with all the stolen property to his home.

The deceased was taken to Kwekwe Hospital mortuary for a post-mortem examination. The examination, by Doctor Munongo, revealed that the deceased had sustained multiple bruises all over the body. He sustained a deep cut on the head. The cut on his head was 7cm long and broke the cranial bone and penetrated the brain.

The deceased died due to brain injury and hypovolemic shock.

The appellant and his accomplice were arrested on 24 January 2004 at Bushdale Custom Milling, Empress in Zhombe whilst still wearing the deceased's clothes.

The appellant and his accomplice freely and voluntarily made confirmed warned and cautioned statements in which they confessed to the killing of the deceased and set out the facts surrounding the commission of the offence which are not different from the facts narrated so far. These are the same facts that were found by the trial court as common cause.

CONVICTION ON COUNT TWO

While the evidence and the post-mortem report show that the second deceased was killed by the striking of the back of his head with a pick, it was not established who actually committed the deed.

Both the appellants implicated each other. 

However, regardless of who committed the fatal deed, it is evident that both the appellants approved of the killing of the second deceased. None of them sought to actively dissociate themselves from the crime but they both drove the deceased's car, wore the clothes of the deceased, and used the deceased persons' prospecting machinery. As was stated in Alex Toendepi Ngisazi v The State SC49-02:

“If someone is killed, then generally speaking, the one who fires the shot, and those of his colleagues who know he is armed and who do not actively disassociate themselves from the killing are guilty of murder and whether the intend is actual or constructive, are likely to be sentenced to death.”

The allegations against the appellants are that on 23 June 2006, at about 22:00 hours, they, acting in common purpose, proceeded to Phakama Secondary School, Plumtree, with the intention to commit the offence of housebreaking with intention to steal and theft.

They armed themselves with knives and also carried tools for breaking in viz, screwdriver, crow bar, lamp and a box of matches. On arrival at the school, they broke into the Administration Block and while inside, lit a lamp and loaded stolen items into a bag. The stolen items included a solar panel, solar chargers, stapler and pens.

The appellants were spotted by the deceased, a teacher, who was arriving at the school at that time. The deceased rushed to the school quarters where he alerted Bakani Nduna Ndlovu who is also a teacher.  The deceased armed himself with an axe and went to investigate followed by Bakani Ndlovu.

On arrival, the deceased ordered the appellants to surrender and come out. The first appellant, instead of surrendering, immediately bolted out of the Administration Block while carrying the stolen property loaded in a bag. The deceased gave chase and managed to catch up with the first appellant and in the process, the first appellant dropped the bag containing the loot and continued to flee. The deceased followed in hot pursuit and after about 100 metres, he caught up with the first appellant again but the appellant wiggled out of the deceased's grip by removing his own black leather jacket leaving the deceased holding it. However, the deceased did not give up the chase and after about another 150 metres he 'cornered' the now tired first appellant and ordered him to lie down. The first appellant, according to his own testimony, pretended to comply with the order, but suddenly drew out his okapi knife from his back pocket, opened it and stabbed the deceased once on the lower abdomen and the deceased fell down and died on the spot.  The first appellant went back to retrieve the stolen loot but, hearing footsteps of other people, gave up and escaped.

In the meantime, the second appellant had seized the opportunity presented by the bolting out of the first appellant and sneaked away from the scene in a different direction evading or outpacing Bakani Ndlovu in the process.

A post-mortem examination of the deceased concluded that the cause of death was;

(a) Haemorrhage shock;

(b) Intra-abdominal bleeding;

(c) Stab wounds, and

(d) Assault.

The stab-wounds are listed in the report under 'marks of violence' as;

(a) Stab wound right arm (5 x 2cm); and

(b) Left abdomen (3 x 2 x 10cm).

Three main contentions were advanced on behalf of the appellants, namely, that:

(a) The State did not disprove the defence of person (self-defence) advanced by the first appellant.

(b)The State did not establish the basis of common purpose to warrant the conviction of the second appellant for the murder of the deceased by the first appellant.

(c) Extenuating circumstances existed in the matter warranting the non-imposition of the death penalty.

We shall examine each one of them in turn ….,.

COMMON PURPOSE

The position in our law pertaining to the doctrine of common purpose was summarized by GARWE J…., in the case of The State v Charles Sumani and Stephen Akudele HH75-00 thus:

“The position is now settled that where accomplices break into premises with a weapon known to all and the weapon is used in the murder of a victim all would have at least a constructive intent to kill - see Nyathi v Two Ors SC52-95. In Chareka & Anor SC40-93 two accused, acting in concert, had a firearm in their possession. The second accused was found guilty of murder with constructive intent. In Ngulube & Anor v S SC112-93, the Supreme Court held that the first appellant should have been found guilty of murder with constructive intent on the basis that being aware that his accomplice was armed with a lethal weapon he must have appreciated and foreseen the possibility of his colleague resorting to the use of the weapon to kill in furtherance of their common objective to effect the robbery.

In this case, it is clear Accused 1 must have, at the very least, been aware that Accused 2 would resort to the use of the axe in order to successfully effect the robbery.”…,.

Counsel for the second appellant sought to argue that the second appellant's mens rea in casu was restricted to the planned house-breaking with intent to steal and theft. He submitted that when they were surprised by the deceased wielding an axe and standing at the door of the school building and demanding that they should come out, the second appellant never produced a knife or any weapon to attack or frighten the deceased. Instead, his decision was to escape under cover of darkness. When the first appellant had bolted out of the building, with the bag laden with stolen items, and the deceased chased after him, so the submission went, the appellant did not join in the chase to attack the deceased or rescue the first appellant. The second appellant simply walked out of the building and out of the school and proceeded to his homestead.

However, the above submission misses the point, which is the age-old question whether the second appellant, by so doing, sufficiently disassociated himself from the original common purpose.

Was it legally effective withdrawal for him merely to run away? Or did he have to do more for the chain connecting him to the subsequent actions of the first appellant to be broken; for instance by surrendering himself as demanded by the deceased or otherwise try to avert the danger that he had created by association?

In S v Ndebu & Anor 1985 (2) ZLR 45 (SC) McNALLY JA quoted English and American case law to the effect that a last-minute withdrawal, on its own, was insufficient to exculpate a secondary party from the main charge. Such a party must do more for the defence of 'withdrawal' to succeed. He or she must 'countermand' or 'repent' the original instruction or understanding. The withdrawing party must literally 'step on the lit fuse' in order to successfully dissociate from a conspiracy to blow up a building with dynamite.

This vexed question pertaining to the sufficiency of a 'withdrawal' from a common purpose was dramatized in William Shakespeare's play, King Richard III, where two murderers are sent by the king to murder his brother, Clarence. The second murderer seems to have a change of heart at the last minute, vainly tries to prevent the killing by warning Clarence to look behind him as the first murderer moved in to stab him. The remorseful second murderer further distances himself from the crime by refusing his share of the reward, but in the eyes of the playwright they both remain murderers.

In S v Ndebu & Anor 1985 (2) ZLR 45 (SC), the appellants were convicted of murder and sentenced to death. During the course of housebreaking at a dwelling known to be occupied at the time, the appellants were surprised by the householder. The second appellant, not in possession of a firearm, immediately fled and had already run some distance away before he heard the sound of gunshot fired by the second appellant which killed the deceased. It was observed as follows regarding the liability of the unarmed second appellant;

“I will content myself in this case by saying that on the facts I am not at all satisfied that the second appellant dissociated himself from the murder. He had gone along with a common intention to commit housebreaking and theft, and, if necessary, armed robbery. He had taken part actively in the break-in, and had himself then cut the telephone wires. He knew and appreciated the risk that if someone in the house woke up the firearm might have to be used to subdue the residents or to effect an escape. He was there participating when precisely that situation arose. As it happened, he was so placed that he could run away. But by that stage what he did was no longer material. The reason for that is clear. The risk which he deliberately took was not related to what he himself might do but what his armed companion might do if challenged or cut off. He had linked his fate and his guilt with that of his armed companion. The mind that needed changing was not his but his companion's. His constructive intention to kill depended on a decision by his companion.”…,.

After examining case law in South Africa and Zimbabwe on this subject, the following conclusion is drawn by the learned author, JONATHAN BURCHELL in Principles of Criminal Law 4 ed…,:

“The ultimate decision whether a person's dissociation from a common purpose can serve to exculpate him or her for crimes committed by the group after dissociation is a value judgment, but a number of factors relevant to the inquiry have emerged from the case law. These factors need to be weighed in the balance by the court in reaching an equitable decision on whether dissociation is legally effective or not.”…,.

COMRIE AJA in Musingadi, 2005 (1) SACR 395 summarized some of the factors relevant to a dissociation inquiry as follows:

“[M]uch will depend on the circumstances: On the manner and degree of the accused's participation; on how far the commission of the crime has proceeded; on the manner and timing of the disengagement; and, in some instances, on what steps the accused took or could have taken to prevent the commission or completion of the crime…,. The greater the accused's participation, and the further the commission of the crime has progressed, then much more would be required of an accused to constitute an effective dissociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment.”

GUBBAY CJ in Beahan 1992 (1) SACR 307 (S)…, opined that where 'a person has merely conspired with others to commit a crime, but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose.'

The Criminal Law (Codification and Reform) Act [Chapter 9:23] now states the position of the withdrawing accomplice, in section 200, as follows:

“200 Withdrawal from crime by accomplice

An accomplice shall not be guilty of a crime committed by an actual perpetrator if, before the crime has been committed, the accomplice voluntarily desists from further incitement of, conspiracy with, or authorization or assistance to the actual perpetrator and either -

(a) Renders wholly ineffective his or her previous incitement, conspiracy, authorization or assistance; or

(b) Gives warning of the crime to a police officer or other person with authority to prevent the commission of the crime, in sufficient time to enable the police officer or other person to prevent its commission.”

In the present case, the manner and degree of participation of the second appellant was not that of a subordinate, but that of a co-principal offender. Both appellants were armed with knives for the clear purpose of warding off any challenge to their enterprise of unlawful entry and theft. This is highlighted in the second appellant's confirmed warned and cautioned statement where he states:

“What I know is that I left home with Enock Ncube carrying knives. Enock had his and I had my own and further we had tools.”

The knives in their possession were not essential for the purpose of unlawfully breaking into the school administration block as they only needed a screwdriver and a crowbar which they used for that purpose.  Therefore, the court a quo did not err in accepting that if the knives were surplus to what the appellants required to complete their housebreaking endeavor then their possession was for the sole purpose of quashing any resistance should such opposition arise - and it did arise in the form of the deceased demanding their surrender and submission and doggedly pursuing the first appellant.

The purported withdrawal by the second appellant occurs when the crime is all but completed and is purely fortuitous. The bolting away by his co-offender and the deceased's chasing after him gives the second appellant the perfect opportunity to slip away. Given the degree to which the offence had progressed, more was expected of the second appellant if he desired to dissociate from the common purpose. He could have surrendered himself and/or called upon his co-offender to do the same or assisted in the retrieval and handing over of the stolen property. He could have warned the deceased that the first appellant was armed; that he should not pursue him; that he himself was surrendering and would be able to identify the fleeing party.

In short, as was said in S v Ndebu & Anor 1985 (2) ZLR 45 (SC), had he disarmed or dissuaded his companion or protected the challenger in some way he might perhaps have purged his constructive intention.

Once more, the Criminal Code, in section 199, makes an accomplice who fails to effectively withdraw guilty of foreseeable additional crimes committed by the actual perpetrator.

Accordingly, the trial court correctly found that the first appellant was guilty of murder with actual intent. 

However, as the line of authorities quoted above show, the second appellant who was not at the actual scene of the murder can be found guilty only of murder with constructive intent. Counsel for the respondent correctly conceded as much in his heads of argument….,.

DISPOSITION

The appeal against conviction and sentence in relation to the first appellant is dismissed.

The appellant was convicted of murder with actual intent.

The court a quo heard evidence from a number of State witnesses, which evidence the court a quo found credible and accepted.

The State led evidence from the following witnesses –

The first State witness was Leonard Dube ('Dube'), an accomplice witness who was properly warned by the trial court to tell the truth.

Leonard Dube told the court that on 26 September 2007, at between 7 and 8pm, the appellant, in the company of one Collen Tsikidze ('Tsikidze'), who is still at large, came to his place of residence. Collen Tsikidze invited him to accompany them into town to look for some money to drink beer. Leonard Dube asked how they were going to raise money to buy beer, to which Collen Tsikidze indicated that he was a police officer attached to the traffic section, and, as such, he was going to arrest those who pirate without permits. Collen Tsikidze offered Leonard Dube bus fare as he had no money. When they got into town, they went to Khami Bar along Robert Mugabe Way and stood outside the Bar. They did not apprehend anyone and they decided to go back to Edgars Stores where they had been dropped off when they got into town. After a while, the trio decided to go back to Khami Bar. It was around 3am when Leonard Dube suggested that they go back home since they had not managed to arrest anyone and had not had a sip of beer. The appellant then suggested that they go behind Allabama, just near Khami Bar.   They saw a white vehicle parked behind Allabama. They went past it and stood at a corner. Collen Tsikidze asked how many people were in the vehicle and the appellant answered that there was only one person. Leonard Dube deliberately contradicted him and said there were two people in the vehicle in the hope that his colleagues would leave the vehicle alone and proceed home. The appellant and Collen Tsikidze told Leonard Dube that he was lying. They suggested that they go back to the vehicle to check again. When they got to the vehicle, Collen Tsikidze went to the driver's side and knocked on the door. The deceased, a white person, raised his head. Collen Tsikidze produced his police identity card and informed the deceased that he was under arrest for wrongful parking. The deceased invited them into the vehicle so that they could go to Bulawayo Central Police Station. Collen Tsikidze sat in the front passenger seat while Leonard Dube and the appellant sat in the back seat. Collen Tsikidze directed the deceased where to go and they drove past Bulawayo Central Police Station. The deceased noticed that they had driven past the police station and began to ask whether they were genuine police officers.   Collen Tsikidze again produced his police identity card. Leonard Dube also asked the appellant where they were going and the appellant told him to keep quiet.  After travelling a short distance further, the appellant said:  

“Lister, finish off this person, finish him off so that we go.”  

Leonard Dube asked the appellant what he meant, and the appellant told him to shut up. At that moment, the deceased suddenly stopped the vehicle and Collen Tsikidze pointed a firearm at the deceased. Leonard Dube suddenly opened the door and ran away towards Chicken Inn near Tredgold Building. He later boarded a bus home and retired to bed. At around 9am the next day, Collen Tsikidze came to Leonard Dube's place of residence and remonstrated with him for running away the previous night. They walked towards the gate and Leonard Dube saw a white car parked by the gate. He saw the appellant seated in the car. Collen Tsikidze told Leonard Dube that he was of very little help the previous night and gave him two hundred rands. He told Leonard Dube to keep his mouth shut. Leonard Dube asked Collen Tsikidze where they got the vehicle and he replied that it belonged to his girlfriend. After Collen Tsikidze and the appellant had left his residence, it dawned upon Leonard Dube that the vehicle was the one that he had seen in town the previous day.

The second State witness to testify was Kenneth Matanhire. He told the trial court that on 22 October 2007, Collen Tsikidze and the appellant signed a loan agreement with him for an amount of three thousand five hundred rands. As security for his money, the witness took possession of the white vehicle brought by Collen Tsikidze and the appellant. The witness further told the trial court that Collen Tsikidze and the appellant shared the loan amount equally.

It is quite clear from this evidence that Collen Tsikidze and the appellant were, at all material times, working together in this robbery and murder.

The evidence of the rest of the State witnesses was admitted in terms of section 314(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Nothing turns on this evidence.

The trial court found that Leonard Dube was an honest and credible witness whose evidence is reliable.  

This conclusion of the court a quo cannot be faulted.

In his defence, the appellant's testimony was that on 26 September 2007 he met Collen Tsikidze at Pumula. Collen Tsikidze suggested that they go into town and he agreed. On their way, they invited Leonard Dube to accompany them. When they arrived in the city, they walked around until they came across the deceased who was parked near Pines Brothers Supermarket. Collen Tsikidze advised the deceased that he was under arrest for wrongful parking. They ordered the deceased to drive to the police station. When Collen Tsikidze diverted the deceased from the route to Bulawayo Central Police Station, the deceased panicked and stopped the car. Collen Tsikidze produced a pistol and shot the deceased once in the head and he died. The appellant told the trial court that Collen Tsikidze placed the deceased on the front seat and he took charge of the motor vehicle and drove off to Nyamandlovu where they dumped the deceased's body. Collen Tsikidze searched the deceased and recovered seven hundred rands and gave the appellant two hundred rands.

The court a quo was not impressed by the appellant as a witness.

It concluded that the appellant must have known that Collen Tsikidze was armed with a pistol and was fully aware of the mission to commit robbery using the gun. The evidence clearly established that the appellant freely participated in the disposal of the body of the deceased. The appellant had an equal share of the proceeds of the pawning of the deceased's vehicle. After the deceased had been shot, the appellant remained in the company of Collen Tsikidze and assisted him in dumping the deceased's body.   The appellant gladly participated in the sharing of the loot.

The appellant's account of the events of the fateful day is so improbable that the trial court quite rightly disbelieved his account.

In short, the evidence clearly established the following rôle played by the appellant in the commission of the offence –

1. The appellant was in the company of Collen Tsikidze and Leonard Dube on the night the deceased was killed. They were looking for someone to rob when they came upon the deceased.

2. The appellant was a former police officer.

3. His accomplice, Collen Tsikidze, effected an illegal arrest of the deceased.

4. The appellant noticed that Collen Tsikidze had diverted the deceased from the police station route but did nothing about it.

5. When Leonard Dube asked the appellant where they were going, the appellant rebuked him and ordered him to shut up.

6. When Collen Tsikidze produced a pistol, the appellant did not stop him. The appellant, as a former policeman, must have known that that was unlawful.

7. The appellant and his accomplice, Collen Tsikidze, dumped the deceased's body.

8. The appellant participated in the sharing of the loot.

9. The appellant was a signatory to the written loan agreement in which they pledged the deceased's motor vehicle.

10. The appellant participated in the disposal of the deceased's property.

11. The appellant was found in possession of the pistol that was used in the murder of the deceased.

On the basis of the above evidence, it is quite clear that the appellant freely participated in the commission of the offence. There is very little difference, if any, between the appellant and Collen Tsikidze who actually pulled the trigger and shot the deceased. Their degree of participation in this crime is equal.

The evidence in this case establishes, beyond doubt, that the appellant was guilty of murder with actual intent….,.

The two accused persons face a charge of murder, it being alleged that on or about 29 August 2011, in a bush in Filabusi, they murdered Alphios Mabhena an adult male.

The State tendered the following in exhibits;

1. The State summary, which was marked Exhibit 1, the confirmed warned and cautioned statements for both accused persons, which were marked Exhibit 4 and 5 respectively;

2. The affidavit of the police officer who identified the deceased's body, which was marked Exhibit 6;

3. The post mortem report, which was marked Exhibit 7;

4. The drill bit, which is the weapon that was allegedly used in the murder, which was marked Exhibit 8;

5. And the psychiatrists report by Dr Poskotchinova, in relation to accused, and which was marked Exhibit 9.

The first accused's defence counsel tendered the first accused's Defence Outline which was marked Exhibit 2.

The second accused's defence counsel tendered the second accused's Defence Outline which was marked Exhibit 3.

The State called the evidence of the deceased's wife, Sakhelene Ndlovu.

She confirmed her husband's disappearance around the 21^st of August 2011 while doing business in Filabusi; her efforts to locate him through the assistance of the police. She also positively identified remains that were recovered by the police in a dis-used mine in Filabusi as those of her husband; she also positively identified the motor vehicle that was recovered from the accused persons as that of her late husband. These were the material respects of this witness's evidence.

Nomusa Zimba, who stated that she had been the deceased's girlfriend, confirmed that the deceased had been in Filabusi at the material time and that he was last seen in the company of the two accused persons, and other people, leaving Matshayimpinzi. She also confirmed that the accused was driving a Toyota motor vehicle at that material time. Those were the material respects of this witness's evidence.

Lazarus Gwerena told the court that he worked for the deceased, operating a compressor, at the mine. He told the court that he last saw the deceased in the company of the two accused persons as they left the mine to go and buy some drill bits. He said that it must have been in September 2011. Pressed further by the first accused's defence counsel as to whether he was certain that indeed it was in September or August 2011, he then told the court that due to lapse of time he cannot insist that it was in September but it was around that time of the year. This witness gave his evidence well and nothing much turned on his cross examination. We accordingly believe this witness as we find him to be credible….,.

Ngqabutho Ngwenya told the court that he assisted the police in recurring the remains of the deceased from a disused mine pit. He also confirmed he recovered a drill bit that could be exhibit. He said the deceased's remains were intact same for the head as there was no hair.

Evans Mangisi told the court that he bought the motor vehicle, a Toyota 2,7 petrol, from the two accused persons in Gokwe, who told him that it was for their brother in the Republic of South Africa. He confirmed they had brought it for accident damage repairs and he subsequently…, interested in it. He said he gave the accused persons $40= to go and collect the motor vehicle papers in Harare as the first accused had told him the papers are in Harare. He also told the court that the motor vehicle was white and the first accused had asked him to paint it black but he refused as that was illegal. He said he later gave the accused persons $180= to go and collect their brother so that they could finalise the deal. Nothing much arose during the cross-examination of this witness. He gave his evidence well and we find that he told the court the truth.

The Investigating Officer, Gugulethu Sibanda, testified on the matter. He followed up on the case, landing him on Lazarus Gwerena who told him that the deceased had last been seen in the company of the two accused persons. He then went to look for Accused Two, found him in his home and he admitted to the mine and led the police details to the disused mine pit where the deceased's remains where recovered. He also implicated Accused One. The Investigating Officer followed upon this lead to Gokwe and recovered the motor vehicle from the deceased's Evans Mangena who led him to the first accused person. The accused's wife positively identified both the deceased's body the motor vehicle. Nothing much turned on this witness testimony.

The evidence of Dennias Ndlovu, Walter Pfava, Constable Marufu, Sibanda Election, Debra Madewa Maniko and Dr S Pesanai was admitted into the court record by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The first accused person's Defence Outline is to the effect that he bought the said motor vehicle from the deceased in exchange for 300g of gold. The deceased had a business partner called Khumbulani Tshuma and they sold the motor vehicle to him while together. He paid a deposit of 100 grams of gold and later paid 200 grams to Khumbulani Tshuma when Khumbulani Tshuma demanded it. At that time, the deceased was said to have travelled to the Republic of South Africa. In his Defence Outline, he said the agreement of sale was verbal. He denied ever selling the said motor vehicle to Evans Mangisi.

In his evidence in chief, the first accused person told the court that he entered into a written agreement of sale with the deceased when they sold each other the motor vehicle. He admitted to being given $40= by Evans Mangisi to go and collect the motor vehicle papers from Harare although he said he just wanted Evans Mangisi to give him money when he said he was going to collect the motor vehicle papers from Harare, since he had all the papers at his house in Gokwe. He told the court that he never went back to Filabusi and that he never heard of the deceased or his death. He also told the court that later, he was given $40= by Evans Mangisi and he gave the second accused person who had insisted sometime in mid-October the $40= as money for busfare.

There is an issue with the first accused's version of events where he told the court that the second accused came to Gokwe at the time that he (first accused) took the motor vehicle for repairs to Evans Mangisi, but at the same time he says the second accused came mid-October and yet he also says they took the motor vehicle to Evans Mangisi in September. It is not clear as to what exactly transpired here.

The bottom line having is that the first accused person confirms that the second accused person did come to Gokwe at the material time. I will later show the significance of this when I assess the evidence.

The second accused person admitted, in his Defence Outline, to committing the offence but that he was not of mental state at the time, was intoxicated, had diminished responsibility, and was not aware of his actions.

I now move to assess the facts before me. The following facts are established in this case;

1. That the deceased was last seen by Nomusa Zimba and Lazarus Gwerena in the company of the accused persons.

2. That at the time, he was driving the Toyota motor vehicle that was subsequently recovered from the first accused person after being implicated by the second accused person.

3. That indications by the second accused person led the police to the disused mine pit where the deceased's remains were found.

4. That a drill bit was also found in the disused mine pit where the deceased was found.

5. That the remains found in the disused mine pit were the deceased's.

6. That the motor vehicle found in possession of Evans Mangisi was the deceased's.

7. That Evans Mangisi had gotten the motor vehicle from the two accused persons.

8. That the two accused persons disappeared at the time the deceased disappeared and were never seen again until January 2012 when they were sought by the police and arrested.

The court in this matter has to resolve Accused One's participation in the offence as Accused Two's participation is not in issue. He does not dispute participation but he denies liability on the grounds of diminished responsibility.

I will therefore assess the facts as they relate to the first accused.

The first accused person is the one who handed over the motor vehicle belonging to the deceased to Evans Mangisi for repairs.

He alleges that he bought the motor vehicle from the deceased with 300 grams of gold; first paying 100 grams to the deceased then 200 grams to his business partner Khumbulani Tshuma. In his Defence Outline, he says the Agreement of Sale was verbal; in his evidence in chief he says the Agreement of Sale was written but was taken by the police.

I find that the first accused person is not telling the truth in this respect for he says, in his Defence Outline, the agreement was verbal. The Investigating Officer testifies, is not questioned about the existence of a written agreement of sale at all by the first accused's defence counsel. The Investigating Officer is excused and the defence case opens; the first accused then says that there was a written agreement that was taken from him by the police. If the accused was telling the truth in this respect, he would have given his lawyer the correct instructions in this regard and the lawyer could have put the Investigating Officer to task on that issue. As it is, its of no consequence because the police who are alleged to have taken the agreement, were represented by the Investigating Officer in court, but were never questioned on that crucial point. The only conclusion are can is that the issue of a verbal agreement of sale was an afterthought. I find that the accused person clearly told lies in this regard. This leads the court to draw the inference that there was never any Agreement of Sale at all.

The other fact which supports our finding on the non-existence of an Agreement of Sale is that the deceased sold the car to the first accused and immediately disappeared with no trace. The first accused says he left for Gokwe, never returned to Filabusi, never communicated with the deceased and yet he was waiting for the deceased to come back from the Republic of South Africa where he had gone to do the change of ownership papers from August 2011 to January 2012 when the first accused person was arrested - its almost six months. The first accused's behavior, of just staying quietly in Gokwe and doing nothing to follow up on the deceased so that change of ownership could be effected clearly shows that he was aware that there was no deceased to follow up on as he knew the deceased was dead.

Again, Evans Mangisi's testimony, that the two accused persons approached him and said the motor vehicle was their brother's and they wanted it repaired and later entertained the thought of buying it is supported by Accused One's version that Accused Two was indeed there at the relevant time. This is because the two accused persons had stolen the motor vehicle together and taken it to Gokwe together since it was their loot. That is why the second accused person went to Gokwe and featured in the transaction as stated by Evans Mangisi. There is no other reasonable explanation for the second accused's presence; even the first accused person himself was at pains to explain the second accused person's visit. The reason proffered by the first accused that he had care to see how cotton is planted is palpably false and I reject that. Also, the first accused person confirms that there is a second batch of money that came from Evans Mangisi and was given to the second accused person. Mangisi says it was $180= and that it was for the second accused to go and fetch their brother for the change of ownership of the motor vehicle.

The first accused person says Evans Mangisi gave him $40= because he had used his motor vehicle to carry groundnuts and he gave all the money to the second accused who had visited but had no busfare.

This does not make sense at all, that the second accused person sets on a journey to Gokwe to see how cotton is planted when he does not have enough funds to travel and is conveniently present when the deceased's motor vehicle was being delivered to Evans Mangisi for repairs and subsequent sale. The only reasonable conclusion that can be drawn is that the second accused person was in Gokwe to finalise the transaction him and the first accused had started; of robbing the deceased, and, in the process, killing him.

Whilst the confessions made by the accused persons were not confirmed and whilst what they said in those confessions cannot be admitted as evidence in this court, their indications are nonetheless admissible.

It was the Investigating Officer's evidence that both accused persons indicated to the police the disused mine pit that the deceased's body was found in the pit wherein they threw his body after killing him. The first accused said while he did indications of the pit to the police it was already after the first accused had taken them there and he knew the area where the pit was and the police then forced him to point to it.

The State case in this matter is dependent on circumstantial evidence.

In the case of R v Blom 1939 AD 188 it was held that in reasoning by inferences there are two cardinal rules of logic which cannot be ignored;

1. That the inference sought to be drawn must be consistent with all the proved facts. It if is not, the inference cannot be drawn.

2. The proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn; if they do not excludes other reasonable inferences, there must be a doubt whether the inferences sought to be drawn is correct.

In this case, the following facts have been proven by the evidence before me;

1. The accused persons were the last seen with the deceased above.

2. The deceased disappeared at that material time never to be seen again.

3. The accused person themselves also disappeared at that material time.

4. Both the accused persons, upon arrest, pointed at the disused mine pit in which the deceased's remains were found.

5. The motor vehicle that belonged to the deceased was recovered from the Evans Mangisi who told the court that he recovered it from the two accused persons.

6. The first accused person's assertion that he bought the motor vehicle has been rejected by this court for the simple reason that he lies about the agreement. Firstly, he says it was verbal, and, secondly, he says it was written and the police took it away. The Investigating Officer was never challenged in this regard. And the fact that he took the motor vehicle to Gokwe at about the same time that the deceased disappeared never too be seen again, as well as that he never pursued the issue of the change of ownership for six months, shows that there was never any Agreement of Sale. The first accused person is just lying.

7. The first accused person's lies are corroborative of the State case for he has gone out of his way to lie so that he escapes culpability. The authority for the principle that an accused persons' lies can amount to corroboration is the case of Katerere v S SC55-91 and S v Nyoni SC118-90.

There is therefore no other inference to draw from the facts before me, save for the one that the two accused persons killed the deceased. Whilst factually it cannot be proven what really transpired when they killed the deceased and the reasons thereof, what can be clearly inferred from the facts is that their possession of the deceased's motor vehicle means that they killed the deceased in order to dispossess him of his belongings….,.

Both accused persons unlawfully and wrongfully killed the deceased.

The court a quo said:

“The accused was a conspirator and an accomplice in the murder of one Innocent Mudimba. It is not in dispute that the killing was motivated by ritual killing at the instigation of a businessman, one Daniel Mudimba, who committed suicide soon after the commission of the offence. The defence counsel has properly conceded that he has no meaningful argument to advance in extenuation and therefore he has not sought to raise any factors. The State has raised an aspect which it feels might lead to a finding of extenuating circumstances in that the accused person was hired to be part of the gang that killed for ritual purposes. The State takes the view that since the accused did not actually deliver the crucial blow that led to the demise of the deceased that may be considered to be an extenuating circumstance. We have come to the conclusion that the accused was hired to kill. His role was not defined at the outset but he was an active participant. In his confession he states that he held the deceased person from the back whilst his throat was being slit for the purpose of collecting blood from him. The accused's moral blameworthiness is no different from the person who actually stabbed the deceased. As we have said, the action of one of the conspirators was the action of all the conspirators. Accused person could have chosen to dissociate himself but he was tempted by money. Such killings are abominable to society and to any right thinking person. The accused's conduct, in confessing in a written statement, is not consistent with his action in court on trial where he chose to deny responsibility altogether. His moral blameworthiness is very high. The fact that he did not deliver the blow, in our view, cannot amount to an extenuating circumstance.”

The appellant claimed that he was not aware that he was carrying stolen meat. He stated that he believed that he was carrying groceries which he had been hired to collect from a bush at Cyrene Farm….,.

The appellant's appeal is premised on the following grounds of appeal…,.;

1. The court a quo erred in convicting the appellant when he was a hired driver and had no knowledge and could not foresee that he had been hired to transport stolen beef….,.

The court a quo said:

“It is clear that the accused did not behave like an innocent hired driver. He protected the contents of his car boot. He did not want them to be seen or discovered by the eyewitnesses. He only turned into West Acre because he had a tyre burst, not that he wanted light, because even when he arrived there, he did not park where there was light. It is apparent that the accused lied that he had been hired. He lied too that he did not produce his police identity.

He also lied about the source of the groceries. It is an afterthought that he wanted to go the West Acre and get illumination as proved by the evidence as discussed above. The accused was fleeing. A hired driver has nothing to hide. The accused had already been paid $20= according to him. He had nothing to lose by allowing the witnesses to search the boot whose contents he did not know and in respect of which the owners did not protest. He could not allow that because the witnesses would have discovered the offence, hence his refusal and flight…,.”…,.

The following facts are clearly established by the evidence led by the State;

(a) That the beast belonging to Matopo Research Institute was slaughtered on the night in question in a bushy area.

(b) The appellant's motor vehicle was seen headed in the direction of the farm that night.

(c) That, upon being stopped, the appellant introduced himself by producing a police identification card and stated his rank in the police force as an Assistant Inspector.

(d) The farm workers, who had erected a road block, indicated to the appellant their intention to search his motor vehicle.

(e) The appellant drove off without subjecting himself to the search.

(f) The farm workers gave chase, and, in the process, the two vehicles side-swiped. The appellant did not stop.

(g) The appellant ran out of luck when his rear left tyre was punctured. He only stopped at a dark area at West Acre. He attempted to removed the bags of meat from the boot before he was apprehended….,.

The trial court cannot be faulted for the factual findings that it made.

That Richard Makuchete might have delivered the fatal blow, as urged upon us by Rabson Makuchete's counsel, is completely immaterial given the circumstances of this case. All three of them had made common purpose with one another…,.

They were in one another's company when they called on the deceased's homestead later in the evening. They were all armed with knobkerries when they assaulted the deceased. Richard just did have the slasher as an additional weapon. All of them were armed for the purpose of assaulting Edward Zvinowanda and the deceased. The assault was severe, sustained and brutal. They only abandoned it after their mission had been accomplished. Only when the deceased had become motionless did they leave him.

The doctrine of common purpose says that 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 or other of them which falls within their common design. Liability arises from their 'common purpose' to commit the crime: see JONATHAN BURCHELL, Principles of Criminal Law, 5^th ed….,.

In murder cases, the act of one in causing the death of the deceased is imputed, as a matter of law, to the other or others. Prior planning is not significant. A common purpose needs not be derived from an antecedent agreement. It can arise on the spur of the moment and can be inferred from the facts surrounding the active association with the furtherance of the common design: see S v Safatsa & Ors 1988 [1] SA 868 [A].

The requirements for common purpose are:

(i) Presence at the scene of crime.

(ii) Knowledge of the criminal act.

(iii) Intention to make common cause with the actual perpetrator of the crime.

(iv) Manifestation of a sharing of a common purpose with the actual perpetrator of the crime by the performance of some own act of association with the conduct of the perpetrator.

(v) Mens rea (either in the form of dolus directus or dolus eventualis) in respect of the perpetration of the crime.

See S v Mgedezi & Ors 1989 [1] SA 687 [A].

The common purpose doctrine is firmly grounded in English Law. The underlying principle of that doctrine is set out in Macklin, Murphy and Others (1834) 2 Lewis 225 (1838) 168 ER 1136 where ALDERSON B observed that:

“It is a principle of law that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all.”

The learned author, BURCHELL, in his book South African Criminal Law and Procedure Vol. 1, 3^rd ed..., elaborates and re-defines the doctrine of common purpose as follows:

“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.”

That definition was adopted in the local case of S v Chanke 2000 (2) ZLR 494 (S)…,.

The long and short of it all is that the law ascribes joint collective criminal responsibility to people who collude or act with a common intent in furtherance of the commission of a crime regardless of who the actual perpetrator of the crime is. What this means is that every associate in crime is criminally liable for the criminal conduct of his compatriot in crime. This is meant to discourage and punish fellowship in crime.

The underlying principle is that he who does a thing through another does it himself.

Section 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] renders persons who give assistance to criminals after the commission of an offence criminally liable as accessories after the fact. It reads:

“Any person, other than an actual perpetrator of a crime, who -

(a) Knowing that an actual perpetrator has committed a crime; or

(b) Realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator, or to any accomplice of the actual perpetrator, any assistance which enables the actual perpetrator or accomplice to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime after it has been committed, shall be guilty of being an accessory to the crime concerned.”

That definition makes it clear that one can only be guilty of being an accessory after the fact of a crime if one with knowledge or realizing that there is real risk or possibility an actual perpetrator has committed a crime;

(i) Associates with the perpetrator.

(ii) Renders the actual perpetrator assistance to conceal or to evade justice.

An accomplice is an accessory to the commission of the crime. He is not the actual perpetrator. His liability stems from his own conduct [coupled with the requisite mens rea] but which is accessory in nature: see JONATHAN BURCHELL, South African Criminal Procedure Vol 1 General Principles of Criminal Law, 4^th ed….,. and S v Williams 1980 [1] SA 60 [A]…,. The accomplice wittingly makes common cause with the actual perpetrator of the crime. He affords the actual perpetrator the opportunity, the means and the information that furthers the commission of the crime. But he lacks the actus reus of the perpetrator.

The truth of the matter is that the accused persons indeed assaulted the now deceased in the clear manner explained by both Matambudziko Maluleke and Newyear Unganai. They acted in common purpose and in concert.

The appellant was convicted for contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], on 14 February 2013, and sentenced to the minimum mandatory sentence of nine (9) years after the learned presiding magistrate found no special circumstances to warrant a lesser sentence.

This appeal is against both conviction and sentence.

In his notice of appeal the appellant has laid basically three grounds of appeal, viz;

(i) That the learned magistrate failed to appreciate the existence of the defence of mistake or ignorance of 'facts', whatever was intended.

(ii) The second ground of appeal is given as that the learned magistrate misdirected himself when he convicted the accused person when such conviction was not supported by evidence.

(iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant.

As regards sentence, the point taken is that the learned magistrate grossly misdirected himself in that he failed to adequately and properly explain the issue of special circumstances before the appellant was sentenced.

The learned magistrate was also attacked on his sentence for allegedly paying lip service to the appellant's issues in mitigation, and, in particular, in failing to properly explain the issue of special circumstances before sentence.

The respondent's position is that the conviction cannot be faulted and that it need not be interfered with.

It is on sentence that the respondent felt constrained to support it. Counsel for the respondent felt that there was merit in the argument that no special circumstances were explained to the appellant. The respondent suggested that this court considers the remittal of the case back to the court a quo for purposes of having the issue of special circumstances further canvassed.

It might well be true that at the time the appellant's counsel perused the court record the written reasons were not there but I find it inconceivable that the appellant's counsel would have come to the conclusion that when the magistrate convicted the appellant he just did that with no reasons at all.

In any event, the proper procedure to have adopted if indeed there were no reasons for judgment would have been for the appellants counsel to file an application for review for such a procedural irregularity. An appeal could only have been an attack on the reasons for judgement, which, incidentally, the appellant's counsel did which pre-supposes that there must have been reasons somewhere which led to the framing of the grounds of appeal.

The irony is that the reasons for judgement given by the learned magistrate properly fit into the evidence that was led at trial making it highly improbable for one to imagine that those reasons were manufactured or created after the conviction of the appellant.

The judgment, as crafted by the learned magistrate, clearly shows that the appellant crucified himself by projecting himself as the owner of the complainant's beast to whoever he interacted with.

According to the evidence of Evson Chakamba, it was the appellant who personally approached him to hire his motor vehicle to ferry the beast forming the subject matter of these proceedings.

The appellant disclosed to the witness that he wanted to sell the beast to T.M. Supermarket, but, somehow, the slaughtered animal ended up being taken to Dzonzai Butchery. No meaningful challenge was given to the evidence of this witness, meaning the appellant was substantially in agreement with the evidence of this witness.

The evidence of Blessing Chakamba corroborated that of his father Evson Chakamba in all material respects in further cementing the guilt of the appellant.

The young man's uncontroverted evidence was that the appellant claimed ownership of the beats which was subsequently slaughtered at the abattoir before the carcass was taken to Dzonzai Butchery in Chipinge. The witness confirmed that, throughout, the appellant was firmly in charge of the beast.

The witness further disclosed to the presiding magistrate that throughout his interaction with the appellant, the appellant disclosed that the beast was his. Not only that but that the appellant personally exhibited fake clearance papers for the animal.

The learned magistrate made a very careful analysis of the evidence that was presented including the rejection of the evidence by the appellant where he attempted to paint the picture that the animal belonged to his accomplice.

In my view, the learned magistrate's finding on the guilt of the appellant was beyond reproach. It cannot be faulted and need not be interfered with by this court.

The guilt of the appellant did not even need one to invoke the provisions of sections 205 and 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This is so because all indications are that the attempted disowning of the beasts, which only assumed prominence during the defence case, must have been an after-thought. This explains why this was not suggested to witnesses who actually dealt directly with the appellant. If indeed the beast belonged to his brother, as he stated in his Defence Outline, he would have disclosed this to all the witnesses he dealt with....,.

Accordingly, the conviction is confirmed...,.