The State v Butholezwe Tshuma and Others

On 24 January 2009, four accused persons (Butholezwe Tshuma, Welcome Michael Ncube, Nomore Mehluli Phiri, and Gee Moyo) carried out an armed robbery at Tashas Superette in Pelandaba suburb, Bulawayo. They carefully planned the robbery, with accused 1 and 3 entering the shop armed with firearms while accused 2 and 4 waited in a getaway car with Sithandekile Nkomo. During the robbery, accused 1 assaulted several people including the deceased, Andrick Matebese (a security guard), and a cashier. Accused 1 kicked the deceased in the head while he was sitting down, knocking him unconscious. The robbers fled when they couldn't access the storeroom where money was kept. Accused 3 fired a shot into the air when members of the public tried to apprehend them. The deceased died from hemorrhage on both sides of the brain and traumatized right lung with haemothorax of 600mls. The accused were arrested on 18 February 2009, with accused 1 caught after another robbery at Tashas Supermarket in Lobengula. A 9mm Z88 pistol recovered from accused 3 matched the spent cartridge found at the scene.

• Whether the accused persons were guilty of murder or culpable homicide
• Whether the accused had the requisite intention (dolus eventualis) to sustain a murder conviction
• The application of common purpose doctrine in determining liability of all four accused
• The admissibility and weight to be given to confirmed extra-curial statements
• The credibility of an accomplice witness (Sithandekile Nkomo) who testified for the state

All four accused persons were convicted of culpable homicide and each sentenced to 25 years imprisonment. The 9mm Z88 pistol recovered from accused 3 was forfeited to the state. The Toyota Corolla registration number RCL 012 GP used in the commission of the offense was forfeited to the state. Sithandekile Nkomo was discharged from all liability to prosecution for this offense in terms of section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Where accused persons plan and execute an armed robbery during which one of them fatally assaults a victim without using firearms, and where there is no evidence of subjective foresight of death (dolus eventualis), they are guilty of culpable homicide rather than murder. All participants in a common criminal purpose are equally liable for culpable homicide where death results from an assault during the execution of that purpose, regardless of their specific roles (whether as perpetrator of the assault or getaway driver). The evidence of an accomplice witness, properly warned under section 267 of the Criminal Procedure and Evidence Act, may be accepted where it is credible and corroborated on material points by independent evidence.

The court observed that had the accused been convicted of murder, there was a likelihood that capital punishment would have been imposed since the killing occurred during the commission of a robbery. The court noted with concern the sharp increase in armed robbery cases and the high frequency of cases where innocent people are killed during robberies, emphasizing the need for deterrent sentences. The court commented that the crime was committed out of greed rather than need, and that the assault on the deceased was unnecessary and vicious as he did not resist or try to foil the robbery. The court emphasized that it "always guards jealously the sanctity of human life."

This case demonstrates the application of culpable homicide charges in the context of armed robbery where death results from assault but without proven intention to kill. It illustrates the courts' approach to common purpose liability where co-accused play different roles in a planned crime. The case is significant for its treatment of accomplice evidence and the need for corroboration. It also reflects the Zimbabwean High Court's approach to sentencing in serious culpable homicide cases committed during armed robberies, emphasizing deterrence in response to increasing violent crime. The 25-year sentence demonstrates judicial concern about the prevalence of armed robberies resulting in death, even where murder is not proven. The case also illustrates proper application of section 267 warnings for accomplice witnesses and the standard for accepting their evidence.