The State v Edson Ndou

On 26 August 2021, at the deceased's homestead during a beer drink, a fight broke out between the deceased and a person named Forster. The accused, aged approximately 40 years at the time, joined the fight on Forster's side. The accused picked up stones and threw them at the deceased, with two stones striking him - one in the waist area and another on the side of the mouth/jaw. After being struck by the accused's stones, the deceased supported himself with a tree stump. Forster then appeared and struck the deceased with a stone on the side of the head. The deceased suffered severe injuries from the attack and died as a result. Forster escaped and did not stand trial. The accused pleaded not guilty to the murder charge.

• Whether the accused could be held criminally liable for the murder when another person (Forster) may have delivered the fatal blow
• Whether the doctrine of common purpose applied to attribute liability to the accused for the deceased's death
• What are the requirements for establishing criminal liability under the doctrine of common purpose
• Whether the accused's participation in the joint attack was sufficient to establish guilt for murder with constructive intent

The accused was found guilty of murder with constructive intent and sentenced to 15 years imprisonment. The court applied the sentencing principles from S v Zinn 1969 (2) SA 537 (A), S v Van Loggenberg 2012 (1) SACR 462 (GSJ), and S v Dodo 2001 (1) SACR 594 (CC), considering deterrence, prevention, rehabilitation, retribution, the personal circumstances of the accused (a mature 42-year-old adult), the seriousness of the offense, and the interests of the community.

Where two or more persons actively associate and participate in a joint unlawful enterprise involving violence against a victim, the doctrine of common purpose applies to impute the conduct of each participant to the others. A prior agreement to commit a crime may be express or implied and inferred from surrounding circumstances. When an accused joins in a fight in aid of another and participates in a violent attack on the victim by throwing stones that strike the victim, the accused is criminally liable for the death of the victim even if another participant delivered the fatal blow. The conduct of each participant in execution of their common purpose is imputed to the others. It is impermissible to separate individual attacks for purposes of determining liability where multiple perpetrators engage in a joint assault resulting in death. Active participation in the common criminal design with the requisite blameworthy state of mind establishes liability under the doctrine of common purpose, even in the absence of proof of a prior express agreement.

The court made extensive observations on sentencing principles, stating that punishment must fit both the criminal and the crime, be fair to society, and be blended with mercy. The court emphasized that sentencing must balance five functions: general deterrence, specific deterrence, possibility of correction/rehabilitation, protection of society, and retribution. The court noted that while deterrence and society's interests are important, offenders must not be 'sacrificed on the altar of deterrence,' citing S v Dodo that human beings have inherent worth and should be treated as ends in themselves, not merely as means to an end. The court observed that violent crime requires deterrent sentences, but these must remain proportionate to the offender's culpability and the gravity of the offense. The court also commented that the accused 'simply joined the fight without even asking why Forster was fighting the deceased,' suggesting a lack of provocation or justification for the accused's intervention.

This Zimbabwean High Court judgment is significant for its application and elaboration of the doctrine of common purpose in homicide cases, drawing extensively on South African jurisprudence. It demonstrates the cross-pollination of legal principles between Zimbabwe and South Africa, particularly in criminal law. The case establishes that where multiple perpetrators participate in a joint attack that results in death, each participant can be held liable for murder regardless of who delivered the fatal blow, provided the requisite common purpose is established. The judgment also provides guidance on the application of the common purpose doctrine in spontaneous violent encounters where one party joins an ongoing fight in aid of another, even without a prior express agreement. It reinforces that a prior agreement for common purpose liability may be inferred from surrounding circumstances and conduct, including active association in a joint unlawful enterprise.