Farai Lawrence Ndlovu and Wellington Gadzira v The State

On 27 March 2011, the two appellants met two deceased persons, Michael Sunderland (aged 37) and Geoffrey Andrew William Povey (aged 65), at Puzey and Payne Garage in Gweru. The appellants told the deceased they had gold for sale and there was a gold rush near Kwekwe River. The deceased drove their Nissan Patrol vehicle with the appellants in the back. The appellants placed poisonous substance (described as cyanide poison or tablets) in the drinking water in the cooler box. Upon arrival at Cactus Farm about 10 km from the Gweru-Kwekwe road, both deceased drank the poisoned water. The first deceased died instantly. The second deceased vomited and regained consciousness, whereupon he was struck on the head with a pick by one of the appellants and died on the spot. The appellants stole the vehicle, two metal detectors, cash ($260 from first deceased, $100 from second deceased), a hunting knife and desert boots. The first appellant was arrested on 29 March 2011 while driving the stolen vehicle near Sango Border Post. The second appellant escaped but was later arrested in Bindura on 11 July 2011.

• Whether the appellants were aware that the pills/poison given to the deceased were lethal or merely intended to induce drowsiness
• Whether the appellants were guilty of murder with constructive intent regarding the first deceased
• Whether both appellants were liable for the death of the second deceased where each implicated the other as the actual killer
• Whether the appellants were guilty of murder with actual intent regarding the second deceased
• Whether extenuating circumstances existed to avoid the death penalty
• Whether the death sentence was appropriate in the circumstances

Both appeals against conviction and sentence were dismissed. The convictions for murder with constructive intent (Count One) and murder with actual intent (Count Two) were upheld. The death sentences imposed on both appellants were confirmed.

1. Where an accused person administers a lethal substance to a victim in circumstances where the victim could identify them, and where upon signs of recovery the accomplices kill the victim, the inference is properly drawn that the accused intended to kill rather than merely incapacitate. This constitutes murder with constructive intent where death occurs during the commission of another crime (robbery). 2. Under the doctrine of common purpose, where multiple accused participate in a killing and it cannot be determined who struck the fatal blow, all participants who do not actively disassociate themselves from the killing are equally liable for murder. Continued use of the victims' property after the killing demonstrates approval and participation. 3. Murder committed in the course of a robbery will attract the death penalty in the absence of weighty extenuating circumstances. Poisoning victims and striking them with weapons when they show signs of recovery are inherently wicked acts that do not constitute extenuating circumstances.

The court noted that even if the appellants had merely been negligent in administering an unknown substance without ascertaining its effect or correct dosage (which was not the case), they would have been guilty of culpable homicide rather than murder. The court also observed that counsel for both appellants properly conceded they had no meaningful arguments to assist their clients, given the strength of the evidence and the correct application of the law by the trial court. The court emphasized the inherently wicked nature of poisoning a victim and leaving them to die, and of fatally striking a victim who was pleading to be taken to hospital.

This case reinforces several important principles in Zimbabwean criminal law: (1) the application of the doctrine of common purpose in murder cases where it cannot be determined which participant committed the fatal act; (2) the standard for murder with constructive intent where accused persons engage in inherently dangerous conduct during the commission of another crime; (3) the principle that failure to actively disassociate oneself from a killing renders all participants liable for murder; (4) the approach to sentencing in cases of murder committed during robbery, particularly that such cases will attract the death penalty in the absence of weighty extenuating circumstances; and (5) the assessment of whether accused persons intended merely to incapacitate victims or to kill them, based on the totality of their conduct and circumstances.