The State v Bongani Mkhwananzi and Nkosana Ncube

On 16 January 2021, the two accused persons, together with two accomplices (Godfrey Sithole and Trymore Ndlovu), attacked Remember Moyo (deceased) and Nomalanga Sibanda at Umzimgwane River, Esigodini. The evidence established that one Mlamuleli Ncube had hired the four attackers for USD 250.00 to assault and rob the deceased and Sibanda, who were gold buyers competing with Ncube's business. The deceased was struck on the head with an iron bar/crow bar by Accused 1 while the deceased was bending down to fold his trousers to cross the flooded river. Brain matter oozed from the deceased's head. The attackers also assaulted Nomalanga Sibanda with a machete and axe, robbed her of USD 900.00, RTGS 3000.00, 30 grams of gold, a cell phone and identity card, and threw her into the river. The deceased died from severe brain traumatic injury. Accused 1 initially pleaded guilty to culpable homicide while Accused 2 pleaded not guilty; the court recorded not guilty pleas for both.

• Whether the accused persons acted in common purpose to commit murder
• Whether the accused persons had the requisite mens rea for murder with actual intent under section 47(1)(a) of the Criminal Law (Codification and Reform) Act
• Whether aggravating circumstances existed to warrant the death penalty or a lengthy custodial sentence
• The admissibility of statements made by co-accused
• Whether withdrawal from the common purpose was established

Both Accused 1 (Bongani Mkhwananzi) and Accused 2 (Nkosana Ncube) were found guilty of murder with actual intent in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each accused was sentenced to 30 years imprisonment.

Where accused persons act in common purpose pursuant to a pre-planned attack, all participants are liable for murder even if the specific fatal injury cannot be attributed to each individual accused. The conduct of one co-perpetrator is deemed to be the conduct of all under section 196A of the Criminal Law (Codification and Reform) Act where they knowingly associate for the common purpose of committing a crime. Actual intent to murder is established where an accused strikes a victim on the head with a lethal weapon using such severe force as to fracture the skull and damage the brain, as this demonstrates either a desire to bring about death or foresight of death as a substantially certain result. Evidence improperly elicited during cross-examination by defense counsel may become admissible against the accused where it results from a fair, reasonable and legitimate answer to a question posed by the cross-examiner.

The court observed that the prevalence of murder has led to a loss of cognizance of its extreme consequences - ending not only the victim's life and enjoyment of all constitutional rights, but irreparably altering the lives of family and friends. The court emphasized its intention to take a strong stand against wanton violence and destruction of life. While declining to impose the death penalty in this case due to the relatively young ages of the accused, the court noted it intended to leave the accused with "a window to enable you to reform and participate in the development of society" while still imposing a sentence reflecting the seriousness of the offense. The court made findings regarding Mlamuleli Ncube's involvement in hiring the attackers "solely for the purposes of this trial and nothing more," recognizing that Ncube was not before the court and his version was unknown.

This case demonstrates the application of common purpose liability under section 196A of the Criminal Law (Codification and Reform) Act in Zimbabwe. It establishes that where multiple accused act together in a pre-planned violent attack, all co-perpetrators can be held liable for murder even if the specific fatal blow cannot be attributed to each individual. The case also illustrates the court's approach to sentencing for murder committed in aggravating circumstances, balancing the severity of the crime with factors such as the age of the accused. The judgment emphasizes that hired killings involving extreme violence warrant severe punishment but that courts retain discretion to impose life imprisonment rather than the death penalty where appropriate mitigating factors exist. The case also addresses evidential issues regarding the admissibility of statements obtained during cross-examination and statements made by co-accused.