The State v Forbes Chimusoro and Gift Dzvuke and Nomore Chemambo

On 3 January 2012 at Mukaradzi Gold Panning site in Mt Darwin, the deceased Fidelis Namichila was drinking beer in the company of Memory Chikanda when he had a misunderstanding with the first accused Forbes Chimusoro. A fracas ensued and the second and third accused joined in. The three accused, together with others, assaulted the deceased using a sjambok, stick and blunt object all over his body and forehead. The deceased was then thrown into a disused mine shaft. The altercation occurred over Memory Chikanda, who was a common girlfriend to both the first accused and the deceased. The assault took place at night during a beer drink, and the gang discouraged anyone from using torches to light the scene. The deceased's body was later retrieved from the mine shaft with injuries. According to the post-mortem report (Exhibit 1) by Doctor Mapiye, the cause of death was depressed skull fracture following severe blunt trauma to the left skull. All three accused were gold panners known to each other and to civilian state witnesses prior to the incident.

• Whether the accused persons caused the death of the deceased
• Whether the accused persons had the requisite mens rea and actus reus to cause the death of the deceased
• Whether the state had disproved the alibi defences raised by all three accused
• Whether the state had proven beyond reasonable doubt that the accused were guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act

All three accused were found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Where accused persons raise defences of alibi in a murder case, the state bears the onus of disproving those defences, but the accused must fully disclose the alibi defence to enable proper investigation. Where an alibi defence is not fully disclosed and is disproved by credible evidence, and the state proves beyond reasonable doubt that the accused persons, acting with common purpose, assaulted the deceased and threw him into a mine shaft, continuing with their conduct despite the real risk or possibility of causing death, they are guilty of murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act. Accomplice witness evidence must be treated with caution and requires corroboration, but such evidence is not to be automatically discarded (applying State v Chohan 1981 (2) ZLR 237 SC). Minor variations in witness accounts regarding details of an assault occurring at night during a beer drink where torches were prohibited do not necessarily undermine the credibility of evidence establishing the accused's presence and participation.

The court observed that the omission of detail and specification of assault by witnesses, given the circumstances of occurrence at a beer drink at night with a crowd present and the gang's discouragement of torches, was understandable and did not exclude the participation of the three accused. The court noted that all three accused and civilian state witnesses were known to each other prior to the offence, and that after the murder the accused were accompanied to a traditional healer to seek cleansing because of the murder allegations, which circumstantially supported their involvement. The court also commented that the deceased, who was a gold panner and alcoholic, might theoretically have fallen into the disused pit in a drunken state (as suggested by the defence), but this possibility was rejected in light of the overwhelming evidence of assault and the medical evidence of severe blunt trauma causing depressed skull fracture.

This case demonstrates the Zimbabwean courts' approach to dealing with alibi defences in murder cases, emphasizing that accused persons must fully disclose alibi defences to enable proper investigation, and that the state bears the onus of disproving such defences. It also illustrates the application of section 47(1)(b) of the Criminal Law (Codification and Reform) Act regarding murder where accused persons realize there is a real risk or possibility that their conduct may cause death but continue despite that risk. The case further demonstrates the treatment of accomplice witness evidence and the need for corroboration, while clarifying that such evidence should not be automatically discarded. The judgment also highlights the application of the doctrine of common purpose in the context of group assaults resulting in death.