The State v Clever Masango and Herbert Mpofu and Robert Mtetwa

On 19-20 June 2015, three accused persons were drinking beer and playing snooker at Mudhara Bar in Chakari. A misunderstanding arose between the accused and the deceased, Whatever Givemore Mutapauja, over a snooker token and game. The security guard ordered them out of the bar. Outside, a fight ensued. The first accused was seen throwing a bottle, flipping open an Okapi knife and stabbing the deceased on the chest and near the neck. The second accused held the deceased by the neck and assaulted him with hands and feet. The third accused assaulted the deceased with clenched fists. After the deceased fell to the ground, the first and third accused carried away the second accused, leaving the deceased unattended. The deceased died from hypovolemic shock, haemothorax, stab wounds and subdural haemotoma (depressed skull fracture). All three accused pleaded not guilty. The first accused claimed he was too drunk to remember and had left before the killing. The second accused claimed he was knocked unconscious by the deceased with a stone. The third accused denied involvement and claimed he only came to assist his injured relative (second accused).

• Whether the three accused persons acting in common purpose caused the death of the deceased
• Whether the accused persons had the requisite intention to kill (actual or constructive intent)
• Whether voluntary intoxication constituted a defence
• Whether the doctrine of common purpose applied to establish liability for all three accused
• Whether the accused persons foresaw the real risk and possibility that their actions would result in death (constructive intent)

All three accused were convicted of murder with constructive intent in terms of s 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The first accused was sentenced to 20 years imprisonment with labour. The second and third accused were each sentenced to 15 years imprisonment with labour.

Where multiple accused persons act in common purpose in assaulting a victim, all can be convicted of murder with constructive intent if: (1) they had subjective foresight of the real risk and possibility that their actions would result in death; (2) there was a real possibility of death; and (3) they acted recklessly despite that foresight. Presence at the scene, awareness of co-accuseds' actions, and association with the assault establishes common purpose. Voluntary intoxication does not constitute a defence to murder under s 221 of the Criminal Law (Codification and Reform) Act, and accused persons remain liable under s 222 for voluntary intoxication leading to unlawful conduct and face the same punishment as for the original crime. The court may draw adverse inferences from deliberate lies told by accused persons to deceive the court.

The court made observations about the social problem of alcohol consumption being used as an excuse to commit heinous offences, stating that it has become a norm that petty disputes at beer drinks result in needless deaths. The court emphasized that such conduct is deplorable and sent a clear message that consumption of alcohol should not excuse criminal conduct. The court noted that the combined effects of youthfulness and possible intoxication serve to reduce the moral (albeit not the legal) blameworthiness of accused in the commission of murder. The court also observed that the loss of self-control by the accused was not reasonable and that broad social policy must be to show restraint despite provocation. These observations reflect judicial concern about alcohol-related violence in Zimbabwe and the need for social restraint and personal responsibility.

This case demonstrates the application of the common purpose doctrine in Zimbabwean criminal law where multiple accused act together in an assault that results in death. It illustrates that all participants in a common purpose can be convicted of murder with constructive intent even where only one accused inflicted the fatal blow, provided all foresaw the real risk and possibility of death. The case reinforces that voluntary intoxication is not a defence to murder and that accused persons remain liable under s 222 of the Criminal Code. It also reflects judicial policy against violence arising from alcohol-fueled disputes in public places, particularly the prevalent problem of petty disputes at drinking establishments resulting in loss of life. The case provides sentencing guidance for murder with constructive intent involving youthful offenders, balancing mitigating factors (youth, intoxication, constructive rather than actual intent) against aggravating factors (public place killing, need for deterrence).