State v Prince Dylan Matore and Michael Simbeye

On 12 July 2005 at around 2000 hours, the deceased Wenceslans Mazvimavi arrived at the gate to his residence at 125 Goromonzi, driving a Nissan Hard Body vehicle with registration number 811-066 S. After he alighted from the vehicle to open the gate, he was attacked by three people who dispossessed him of the vehicle. The deceased collapsed after attempting to follow the vehicle when it was being driven away. He sustained a stab wound at the back below the left shoulder. He was referred to Avenues Clinic where he was pronounced dead. The two accused persons were arrested on 15 July 2005 at Kandeya Business Centre, Mount Darwin, whilst in possession of the stolen vehicle. The autopsy revealed the deceased died from hypovolemic shock and lung injury arising from stabbing. The deceased's brother, Ernest Mazvimavi, witnessed three people manhandling the deceased and identified the second accused as the driver of the stolen vehicle. The second accused admitted to planning the robbery with the first accused and Washington Kembo (now deceased), intending to steal the vehicle for income generation by providing transport services to rural farmers. Both accused pleaded not guilty to murder.

• Whether both accused persons were liable for murder based on the doctrine of common purpose
• Whether the first accused was present at the scene of crime despite his alibi defence
• Whether the accused persons foresaw the possibility of death resulting from the robbery
• Whether constructive intent to murder could be established based on the common design to commit robbery with violence

Both accused persons were found guilty of murder with constructive intent.

In a common purpose case involving robbery with violence resulting in death: (1) Each individual accused must be judged on his own mens rea; (2) The actus reus consists of an act by which the accused associates himself with the common purpose, not necessarily an act causally linked to the death; (3) Where accused persons plan to commit robbery and foresee the possibility of violence being used to overcome resistance, they may be found guilty of murder with constructive intent if death results, regardless of which specific accused inflicted the fatal blow; (4) Failure to dissociate from the common purpose after violence is employed continues the criminal liability of all participants; (5) Evidence of one co-accused is admissible against another co-accused.

The court expressed concern about the inordinate delay in the proceedings, noting that the matter dragged on for an unreasonable length of time. The court also criticized the conduct of counsel in failing to timeously file closing submissions, noting that state counsel only filed submissions on 1 September 2017 after intervention by the Deputy Prosecutor General, and that defence counsels' submissions were significantly delayed, with one counsel's submissions never finding their way into the record despite being filed. The court noted the understandable bitterness of the deceased's brother as a witness, particularly given that the deceased's last words were that the witness had let him down, but found that despite this emotional state, the witness gave straightforward evidence and did not seek to exaggerate or fix the accused persons.

This case demonstrates the application of the common purpose doctrine in Zimbabwean criminal law, following South African jurisprudence. It establishes that where multiple accused persons participate in a robbery with violence, all may be held liable for murder even where the specific perpetrator of the fatal act is not identified, provided they foresaw the possibility of death and were reckless as to the consequences. The case also illustrates the evidential value of co-accused testimony against each other, and the rejection of alibi defences where contradicted by credible evidence. The judgment emphasizes that lack of dissociation from a violent common enterprise results in continued criminal liability for all consequences flowing from that enterprise.