The State v Felix Muteve

On 2 July 2016, at Sam Marange's car park in Kuwadzana, Harare, the deceased Jemias Bangu was found in Tererai Muteve's car park late at night and was suspected of being a thief. The accused Felix Muteve (first accused) was charged jointly with four others for murdering the deceased by assaulting him with blunt objects and an umbrella stick. The four co-accused were discharged at the close of the state case. The key witness, Maxwell Rafemoyo, testified that he was minding the car park when the deceased was discovered leaning against a wall, intoxicated. The accused assaulted the deceased twice on the head with a guava tree switch (80cm long by 5cm diameter), causing bleeding and injury to the temple. Despite protests and suggestions that the deceased had simply lost his way due to drunkenness, the accused insisted the deceased was a thief and should be detained overnight. The deceased was held at the car park and subjected to further assaults by multiple people. The deceased attempted to escape before daybreak but was recaptured, and suffered fractures to his limbs. The deceased died from hypovolemic shock, haemoperitoneum, and liver laceration caused by the assaults. The post-mortem also revealed scalp bruises, brain oedema, and multiple fractures to limbs. The accused denied assaulting the deceased and claimed he was asleep in a vehicle he was guarding and only witnessed a mob assaulting the deceased.

• Whether the witness Maxwell Rafemoyo was an accomplice and whether his evidence should be treated with caution
• Whether Maxwell Rafemoyo's oral testimony contradicted his police statement and whether it should be discarded
• Whether the court could convict on the evidence of a single witness
• Whether the accused was guilty of murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Whether the accused formed common purpose with other assailants
• The appropriate sentence for murder where the accused displayed reckless conduct resulting in death

The accused Felix Muteve was found guilty of murder in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 20 years imprisonment.

A witness who reports a crime to police and is not implicated by the accused in the commission of the offence is an informant and not an accomplice. Evidence of a witness may be accepted despite inconsistencies with an earlier police statement where the witness provides a credible explanation for the omissions, such as threats. A court may convict on the evidence of a 'single witness' where there is corroborating evidence aliunde such as a post-mortem report. An accused who assaults a victim and then insists on detaining that victim, refusing to release him and thereby exposing him to further assaults by others, is criminally responsible for the victim's death both through direct assault and through common purpose with other assailants. Reckless conduct that realises the risk of death constitutes murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. Vigilante justice and 'taking the law into one's own hands' resulting in death warrants substantial custodial sentences to deter such conduct and protect the sanctity of human life.

The court observed that once a suspected thief had been apprehended, the captors ought to have taken him to police immediately or at the very least informed police to collect him, rather than detaining him overnight. The court emphasized that human life is sacrosanct and that once lost it is not replaceable, which is why courts must guard this God-given gift jealously. The court noted that while capital punishment was not warranted in the circumstances, a sentence must send the correct message that taking the law into one's own hands and causing loss of human life will not be tolerated. The court also made observations about the brutal nature of the assault, noting that the deceased was subjected to torture through the fracturing of his limbs while in the offender's captivity, which disabled him and caused life-threatening injuries.

This case is significant in Zimbabwean criminal law for several reasons: (1) It clarifies the distinction between an accomplice and an informant/witness in criminal proceedings; (2) It affirms that a court may accept oral testimony that differs from a police statement where the witness provides a credible explanation (such as threats); (3) It demonstrates the application of common purpose liability in murder cases where an accused person's conduct facilitates or encourages assaults by others; (4) It emphasizes the principle that 'taking the law into one's own hands' through vigilante justice will not be tolerated and that human life is sacrosanct; (5) It illustrates how reckless conduct causing death can constitute murder under section 47(1)(b); and (6) It shows the court's approach to sentencing in cases involving vigilante violence and mob justice, balancing the need for deterrence against mitigating factors.