Mbembe Porusingazi v The State

On 4 October 2001, the appellant was part of a group of four poachers who went hunting game at Mkwasine Range Chiredzi, armed with bows and arrows and accompanied by dogs. They killed three warthogs. Three game scouts, including the deceased, discovered them while they were sharing the meat. The poachers fled when they saw the scouts, and the scouts gave chase. The deceased, armed with a rifle, led the pursuit and closed in on one of the poachers named Davison Mangena (the appellant's nephew). Davison called for help, and the other poachers, including the appellant, stopped and turned back to confront the game scouts. The appellant, still armed with his bow and arrow, ordered the deceased to drop his rifle. The deceased did not comply but suggested they discuss the matter. Davison urged the appellant to shoot. The appellant again ordered the deceased to drop his rifle, which was lowered but not dropped. The deceased continued urging dialogue. The appellant then pulled his bow and shot the deceased with an arrow, hitting him on the left side of the rib cage. The deceased and his colleagues ran away. The appellant followed and ordered the deceased to remove the arrow, which he did. The deceased died shortly thereafter from cardiac arrest due to traumatic haemothorax. At no stage had the deceased threatened the poachers or pointed his rifle at them.

• Whether the killing was committed with actual intent or constructive intent
• Whether there were extenuating circumstances warranting a sentence other than death
• Whether the killing was premeditated
• Whether the appellant's moral blameworthiness was reduced by the circumstances

The appeal against both conviction and sentence was dismissed. The conviction for murder with actual intent and the sentence of death were upheld.

Murder with actual intent is established where an accused deliberately aims and shoots a lethal weapon at a person and must have foreseen the possibility of killing as substantially certain, regardless of whether the act was premeditated. Shooting in the direction of a moving human being with a small margin of safety constitutes at minimum reckless conduct sufficient for murder. The absence of premeditation does not, on its own, constitute an extenuating circumstance where the accused deliberately committed the fatal act with full appreciation of the consequences and there is nothing else to reduce moral blameworthiness.

The Court observed that shooting with a weapon in the direction of a moving human being leaving a small margin of safety may fairly be described as reckless conduct, citing S v Du Preez 1972 (4) SA 584, 589 D-E. The Court also clarified the proper definition of premeditation as "previous deliberation upon or thinking out of something to be done" or "the action of thinking of or considering something beforehand or previously" (citing The Oxford English Dictionary p 1279-80), and noted that what occurred in this case in the heat of the moment after the game scouts discovered the poachers did not constitute premeditation even though the trial court had incorrectly so found.

This judgment is significant in Zimbabwean criminal law for clarifying the distinction between premeditation and actual intent in murder cases. It establishes that an offense can be committed with actual intent even when not premeditated (i.e., occurring in the heat of the moment). The case also reinforces the principle that shooting a weapon at or in the direction of a person, even with claimed intent to miss, can constitute murder with actual intent where death results and the accused must have foreseen it as substantially certain. The judgment emphasizes that the absence of premeditation alone does not constitute an extenuating circumstance where the accused deliberately committed the fatal act with appreciation of the consequences. It also demonstrates the court's approach to assessing credibility of witnesses and when appellate courts will defer to trial court findings on witness demeanor and credibility.