The State v Baron Dube

On 26 September 2018 at approximately 2300 hours at Atlas Mine, Esigodini, the accused armed himself with two firearms (a Voere Rifle and a Taurus Revolver) and in the company of approximately 15 armed men drove to Atlas Mine where there was a gold rush. The accused, a gold miner who claimed to be employed by Khalanyoni Ranch as security, arrived at the scene where illegal gold panners were digging. The accused ordered all panners to vacate the area, claiming the mine belonged to him. The panners complied and began leaving. The deceased, Antony Prince Bvundura, was one of the panners who moved away but was shot by the accused using one of his firearms. The bullet entered the deceased's left bicep, penetrated his chest, destroyed his heart, and exited on the right side causing death from hypovolemic shock and heart destruction. The accused claimed he fell into a pit causing his revolver to accidentally discharge, but eyewitness testimony contradicted this version.

• Whether the accused intentionally shot the deceased or whether the firearm accidentally discharged
• Whether the accused acted with dolus eventualis (realization of real risk or possibility) in firing the weapon
• Assessment of credibility of single eyewitness testimony
• Application of section 257 of the Criminal Procedure and Evidence Act regarding failure to mention certain facts to police
• Whether the accused's explanation was reasonably possibly true

The accused Baron Dube was found guilty of murder in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act Chapter 9:23 and sentenced to 10 years imprisonment.

A person commits murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act when they cause death while realizing there is a real risk or possibility that their conduct may cause death and continue to engage in that conduct despite the risk. The test for realization of real risk or possibility under section 15 is subjective and consists of two components: (a) awareness of the real risk or possibility that the conduct might cause death, and (b) recklessness in continuing with that conduct despite the awareness. Where an accused fails to mention facts relevant to their defence to police when reasonably expected to do so, the court may draw proper inferences under section 257 of the Criminal Procedure and Evidence Act, and such failure may corroborate other evidence against the accused. A court may convict on the single evidence of a competent and credible witness in terms of section 269 of the Criminal Procedure and Evidence Act.

The court made observations about the growing problem of violence perpetrated by artisanal miners throughout Zimbabwe, describing it as 'a senseless and unfortunate trait that is fast becoming a badge of our artisanal miners throughout the country.' The court emphasized that such behavior driven by 'sheer greed' is inexcusable and that courts have a duty to protect the sanctity of life by imposing fitting sentences that discourage like-minded offenders. The court noted that the accused showed no concern for human life after the shooting, failing to check if anyone was injured or to report the incident to authorities as required by law. While noting the accused's personal circumstances (married with 14 children, businessman, first offender, contributed to funeral expenses), the court emphasized that sentencing must balance the accused's personal circumstances, circumstances of the offense, and society's interests to avoid capricious penalties, citing S v Zinn 1969 (2) SALP.

This case demonstrates the Zimbabwean courts' application of the codified test for dolus eventualis (realization of real risk or possibility) under section 15 of the Criminal Law (Codification and Reform) Act, which superseded the common law test for constructive or legal intention. It illustrates the evidential value of a single competent and credible witness under section 269 of the Criminal Procedure and Evidence Act. The judgment also demonstrates the application of section 257 regarding adverse inferences from an accused's failure to mention facts to police that would reasonably be expected to be mentioned. The case addresses the growing problem of violence among artisanal miners in Zimbabwe and emphasizes the sanctity of life and the court's role in imposing deterrent sentences.