Cephas Mahara and Others v The State

On 28 December 2009, eight appellants acting in common purpose attacked Cosmas Hove and other employees of Nicholas Gara at Olympia 34 Mine in Shurugwi. The appellants attacked Cosmas with stones, axes, machetes and a firearm, causing serious life-threatening head injuries. Nicholas Gara was the lawfully registered owner of the mine. After violently subduing Cosmas and his colleagues, forcing them to flee into the hills, the appellants stole three tonnes of gold ore that had been stockpiled at the mine. The first appellant commandeered a truck and drove the ore to Refuse Makiwa Plant at 0100 hours, where they forced staff to mill it without proper documentation. Despite police intervention, the appellants persisted with their criminal venture, milled all the ore, and took the resultant gold. The first appellant boasted that police could not arrest them because he as the 'sponsor' had bribed them. After a lengthy trial with 14 state witnesses and 9 defense witnesses, all appellants were convicted of robbery and attempted murder on 27 March 2012 and sentenced to 12 years imprisonment, with 2 years suspended on condition of paying restitution of US$1,568.00 to the complainant by 31 May 2012.

• Whether the court a quo erred in finding common purpose amongst the appellants
• Whether there was sufficient evidence that the appellants committed the offences
• Whether the appellants' defense of claim of right was sustainable
• Whether the firing of a gun in the air constituted attempted murder or self-defense
• Whether the sentence of 12 years imprisonment was manifestly excessive

The appeal against both conviction and sentence was dismissed in its entirety.

Where two or more persons are accused of committing a crime in association with each other and have the requisite mens rea (whether by intention, knowledge, or realization of real risk), they may be convicted as co-perpetrators under section 196A of the Criminal Law (Codification and Reform) Act. The conduct of the actual perpetrator is deemed to be the conduct of every co-perpetrator, even if the actual perpetrator is not identified. Common purpose is established where accused persons: (a) were present at or near the scene in circumstances implicating them; (b) were associated in preparatory conduct; or (c) engaged in criminal behavior as a team or group. A defense of claim of right cannot succeed where the accused persons engaged in violent criminal conduct to assert their alleged rights.

The court observed that the level of banditry displayed by the appellants was worrisome. The court commented that the trial court had actually been too lenient in sentencing, given the brutality and brazenness of the appellants' conduct, their lack of contrition, the permanent disability suffered by the victim, their failure to pay any compensation despite the court order, and the fact that most had previous convictions for violent offences. The court also noted critically that the first appellant boasted about bribing police officers, though this was not a separate charge.

This case is significant in Zimbabwean criminal law for its application of the doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act. It demonstrates how the conduct of an actual perpetrator is deemed to be the conduct of every co-perpetrator when they act in association with the requisite mens rea. The case illustrates the factors that prove common purpose: presence at the scene in incriminating circumstances, association in preparatory conduct, and engagement in criminal behavior as a group. It also addresses the limits of the defense of claim of right in cases involving violent criminal conduct and theft of property.