The State v Admire Chiurairwe and Philimon Mhondera

On 14 September 2013 at Kurwaisimba Business Centre, Chimanimani, the two accused (cousin brothers) allegedly assaulted Liberty Mwenje with fists, booted feet, a log, stones and a knife, inflicting injuries from which he died. The accused claimed they were drinking at the business centre when the deceased approached them about a previous dispute involving their brother Charlie concerning a lost mobile phone and cash. The accused alleged that the deceased and his friends (Blessing Ziyomo and Moses Chivhunga) initiated the assault, with Blessing head-butting accused one and the deceased stabbing accused one with a knife. They claimed self-defence and defence of a third party. The State's main witness, Blessing Ziyomo, testified that the two accused had imposed an unlawful travel ban on the deceased, called him aside, followed and sandwiched the group after the police base, and initiated a brutal assault using beer bottles, a log, and a knife. The deceased was found unconscious the next day with severe injuries including a grossly swollen head, multiple bruises, and haematoma. He died four days later at Rusitu Hospital from poly trauma, head injury and blunt abdominal trauma.

• Whether the accused persons were guilty of murder
• Whether the accused acted in self-defence or defence of a third party
• Whether the accused acted with actual intent or constructive intent to kill
• Whether the accused acted in common purpose as accomplices
• The credibility of the State witness Blessing Ziyomo versus the accused's version of events

Both accused persons were found guilty of murder with constructive intent as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Where accused persons assault a victim using weapons such as logs, stones and knives causing extensive injuries including head trauma and blunt abdominal trauma, they must be taken to have foreseen the real risk or possibility that death may result, and proceeding with such assault constitutes constructive intent to kill under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. The test for constructive intent is subjective and requires appreciation of some risk to life coupled with recklessness as to whether the risk is fulfilled in death. Where two or more persons act in common purpose in launching such an assault, they are equally guilty as accomplices under section 196 of the Criminal Law (Codification and Reform) Act, even in the absence of pre-planning if they devise a plan in the course of events.

The court observed that in any assault case, both the complainant and the accused have an interest to be cast in better light than portrayed in the allegations, creating a real likelihood that witnesses may under-play their own role and exaggerate that of the accused. The court also noted that even victims of violence can score notable blows in self-defence, and this does not detract from identifying who the true aggressors were. The court commented that had the accused cared enough to alert the deceased's relatives where to find him, he may have lived, inferring their indifference to whether he lived or died from their conduct of leaving him for dead.

This case illustrates the application of constructive intent in murder cases in Zimbabwe, confirming that foresight of the real risk or possibility of death coupled with proceeding despite that risk constitutes the requisite mens rea for murder. It demonstrates the application of common purpose liability under section 196 of the Criminal Law (Codification and Reform) Act, holding accomplices equally liable. The judgment also provides guidance on assessing credibility in assault cases where both complainants and accused have interests to serve, requiring courts to evaluate evidence based on probabilities and corroboration rather than accepting self-serving accounts at face value.