The State v Bernard Makuchete and Rabson Makuchete

On 10 May 2014 in rural Masvingo under Chief Chikwanda, the two accused (blood brothers aged 25 and 21 at the time) together with their third brother Richard attended a traditional beer drink. Following an earlier brawl at the beer drink between Bernard (first accused) and Edward Zvinowanda, the deceased (Zvinowanda Zvinowanda, the accused's cousin) intervened to stop the fight. Bernard accused the deceased of having an affair with his former wife. Later that evening around 19:00 hours, when the deceased and Edward were returning from walking their cousin Munyori home, all three brothers (armed with knobkerries, and Richard also with a slasher) ambushed them near the accused's homestead. They brutally assaulted both Edward and the deceased. Edward was left injured and required hospitalization for two days. The deceased was beaten until he went limp and died from head injuries sustained in the attack. All three accused fled and were arrested four days later at another relative's homestead. Richard was previously convicted and sentenced under judgment HMA 7-16. The current trial involved Bernard and Rabson who had been unavailable for the initial trial.

• Whether the accused participated in the fatal assault on the deceased
• Whether the doctrine of common purpose applied to establish liability for murder
• Whether the accused had the requisite mens rea (dolus directus or dolus eventualis) for murder
• What the appropriate sentence should be for murder not committed in aggravating circumstances as contemplated by statute

Both accused were found guilty of murder with actual intent. Bernard Makuchete (first accused) was sentenced to 25 years imprisonment. Rabson Makuchete (second accused) was sentenced to 25 years imprisonment.

Where two or more accused persons actively associate in a joint unlawful enterprise with a common purpose to commit murder, each will be held liable for the death caused by any one of them where: (1) they were present at the scene; (2) they had knowledge of the criminal act; (3) they intended to make common cause with the actual perpetrator; (4) they manifested sharing of the common purpose through their own acts of association; and (5) they possessed the requisite mens rea (either dolus directus or dolus eventualis). Prior planning is not required - common purpose can arise spontaneously and be inferred from the circumstances. It is immaterial which accused delivered the fatal blow when all were armed and actively participated in a sustained and brutal assault.

The court observed that in traditional African culture, the relationship between cousins (where fathers are brothers) is practically that of blood brothers, despite the English word "cousin" creating a sense of distance in the relationship. The court also commented on the nature of sentencing, describing it as "a complex exercise" about "striking a balance to achieve a certain equilibrium" rather than "mathematical precision or moral exactitude." The court noted there is no tariff system and that while the principle of stare decisis is important in following similar decisions in similar cases, it is not overriding. The court analogized sentencing to "feeding disparate factors into the proverbial judicial computer" which processes and blends them to emit an appropriate penalty suited to both the offense and the offender.

This judgment provides important guidance on the application of the doctrine of common purpose in murder cases in Zimbabwe (and relevant to South African jurisprudence given the similar legal principles). It demonstrates that where multiple accused actively associate in a joint unlawful enterprise, each will be held responsible for the criminal conduct falling within their common design, regardless of who delivered the fatal blow. The judgment clarifies that common purpose can arise on the spur of the moment without prior planning and can be inferred from the facts surrounding active association with the furtherance of the common design. It also provides guidance on sentencing principles in murder cases not involving statutory aggravating circumstances, emphasizing that sentencing is a balancing exercise rather than a mathematical or tariff-based system, though consistency with similar cases remains important.