State versus Beneta Bhunu

On 7 October 2019 at L2, Rukudzo Village, Chief Marange, Odzi, the deceased Norbert Kavharo, who was returning from a beer drink, passed by the accused's homestead. The deceased chided the accused for denying her husband conjugal rights and made vulgar sexual advances, offering to be intimate with her and commenting that he had a bigger penis than her husband. Despite the accused's protestations, the deceased continued insulting her using vulgar language. The accused, extremely provoked and in a fit of rage, picked up a stick (0.4kg, 117cm long) and struck the deceased on the head, hands, abdomen, back and buttocks several times. The deceased fell to the ground. When Phoebe Mupotaringa and Chimikai Sarumhungwe arrived, they found the deceased groaning in pain and carried him home. The deceased died in the early hours of 8 October 2019 at around 0200 hours. A post mortem examination was conducted but could not determine the cause of death. The doctor observed bruises on the abdomen but noted the body was in an advanced state of decomposition. Internal organs (liver, stomach, kidneys, spleen) had decomposed. The doctor concluded the cause of death was indeterminate.

• Whether the accused with actual or legal intention caused the death of the deceased
• Whether the deceased's death was a consequence of the assault perpetrated by the accused
• Whether the state proved beyond reasonable doubt the essential elements of murder (actus reus and mens rea)
• Whether the accused negligently caused the death of the deceased, thereby constituting culpable homicide
• Whether there was a causal link between the accused's conduct and the death of the deceased

The accused was found not guilty of murder and found guilty of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. She was sentenced to three months imprisonment wholly suspended for three years on condition that she does not within that period commit any offence involving the use of violence on the person of another for which she is sentenced to imprisonment without the option of a fine.

For a murder conviction, the state must prove beyond reasonable doubt both the actus reus and mens rea, and establish a causal link between the accused's conduct and the death of the deceased. Where a post mortem examination cannot determine the cause of death and there are plausible alternative explanations for death unrelated to the assault, no causal nexus can be established between the assault and death. In such circumstances, an accused cannot be convicted of murder with actual or legal intention, nor of culpable homicide. The nature and manner of an assault (including the weapon used and injuries inflicted) must be of such a character that it would be foreseeable within the range of ordinary human experience that the actions would lead to death before culpable homicide can be sustained. Section 18(1) of the Criminal Law (Codification and Reform) Act provides that no person shall be held guilty of a crime unless each essential element is proved beyond reasonable doubt.

The court made important observations about the quality of post mortem examinations, stating: "In murder cases it is imperative that the doctors as experts in complex matters do not carry out a cursory examination but thorough examination which include notation of findings of both internal and external examination." The court criticized the doctor's failure to record history, observations of injuries noted by other witnesses, and the lack of follow-up on alleged toxicology samples. The court noted that the doctor's evidence "was not of much assistance" and left "a lot of questions as regards what transpired and what caused the death of the deceased." The court also observed that although the accused was found not guilty of murder, "she will leave with the stigma that goes with the murder charges," acknowledging the non-legal consequences of being charged with such a serious offense.

This case illustrates the critical importance of establishing causation in homicide cases in Zimbabwean criminal law. It demonstrates that even where an assault has occurred and death follows, the state must prove beyond reasonable doubt that the assault caused the death. The case highlights the evidentiary burden on the prosecution and the consequences of inadequate post mortem examinations. Where medical evidence cannot determine the cause of death and there are alternative plausible explanations (underlying health conditions, poisoning, etc.), the court cannot convict for murder or culpable homicide. The case also demonstrates the application of the principle that an accused has no onus to prove innocence - the state must prove all essential elements of the crime beyond reasonable doubt. It shows the court's willingness to consider provocation as a mitigating factor in sentencing for assault, while still maintaining that citizens cannot take the law into their own hands.