The State v Farai Kapenga and Innocent Kapenga

On 14 April 2017 at Samakande Village, Chief Katerere, Nyanga, the two accused were charged with murdering Kizito Bulawayo. The background involved a dispute where the deceased's wife had assaulted the 2nd accused's mother over allegations of an extramarital affair with the deceased. On the evening in question, the deceased and his brother Ward were walking home when the 2nd accused confronted the deceased about why his wife had assaulted his mother. According to the State's case, the 2nd accused tripped the deceased and sat on his chest, assaulting him. Ward intervened to restrain the 2nd accused. The 1st accused then arrived armed with a mattock and struck the deceased twice on the head. The 2nd accused then kicked the prostrate deceased with his booted feet. The 1st accused also assaulted Ward with the mattock. A witness, Tongai Lovemore Kambadza, arrived and restrained the 1st accused. The deceased was taken to hospital but was pronounced dead on arrival. Post-mortem examination revealed a fractured skull base. Both accused raised defences of private defence, claiming they were acting to protect the 2nd accused from assault by the deceased and Ward. The court rejected these defences.

• Whether the accused were guilty of murder with constructive intent under s 47(1)(b) of the Criminal Law Codification and Reform Act
• Whether the defence of private defence under s 253 of the Criminal Law Code was available to the accused
• Whether the 2nd accused could be held liable as a co-perpetrator under s 196 of the Criminal Law Code despite not delivering the fatal blows
• Assessment of witness credibility where versions were mutually exclusive

Both accused were convicted of murder as defined in s 47(1)(b) of the Criminal Law Codification and Reform Act [Chapter 9:23]. Each accused was sentenced to 18 years imprisonment.

For the defence of private defence under s 253 of the Criminal Law Code to succeed, the requirements must be met objectively: (1) the attack must have commenced or been imminent; (2) the accused's conduct must have been necessary to avert the unlawful attack; (3) the means used must have been reasonable in all circumstances; and (4) harm must be caused to the attacker, not an innocent third party. Where an accused arms himself with a lethal weapon and attacks a victim who poses no threat and is not assaulting anyone, private defence is not available. Under s 196 of the Criminal Law Code, a person who initiates an assault and then approves of and associates himself with another's fatal attack on the victim (by continuing to assault the victim after fatal blows are delivered) may be convicted as a co-perpetrator of murder, even if he did not deliver the fatal blows himself. For murder with constructive intent under s 47(1)(b), it must be established that the accused realized there was a real risk or possibility their conduct might cause death but continued to engage in that conduct despite the risk.

The court emphasized that when assessing private defence claims under s 253(2) of the Criminal Law Code, courts should not take an "armchair approach" but must appreciate and understand the circumstances of the accused, adopting a robust attitude and not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence (citing S v Ntuli 1975 (1) SA 429 (A) at 436D). However, this does not prevent the court from rejecting a defence of private defence where the evidence clearly shows its requirements were not met. The court noted that murder is a serious crime due to the sanctity of human life, and it is made worse where committed in circumstances where there is no justification. Courts are enjoined to pass sentences that send the message that society abhors such crimes. The court expressed gratitude to defence counsel for their mitigation submissions, noting they said all that could be said in such a case, though aggravating factors outweighed mitigating ones.

This case is significant in Zimbabwean criminal law for its application of s 196 of the Criminal Law Codification and Reform Act regarding co-perpetrator liability. It demonstrates that an accused who initiates an assault and then associates himself with another's fatal actions (by kicking the victim after fatal blows were delivered) can be held liable as a co-perpetrator for murder even without delivering the fatal blows himself. The case also provides guidance on when private defence will not be available, particularly where the deceased posed no threat and was actually preventing violence. It illustrates the court's approach to assessing credibility where versions are mutually exclusive, emphasizing the importance of independent corroboration. The case reinforces that murder with constructive intent (dolus eventualis) applies where accused persons realize there is a real risk their conduct might cause death but continue regardless.