The State v Fortune Makombe

On 18 May 2019 at around 20h00, the accused, the deceased (Jimmy Ncube), Morgan Fundira (bottle store owner), and Ndaba Ncube (deceased's brother) were at Zvope bottle store in Chiundura. When Fundira decided to close the bottle store, the accused became angry and threatened Fundira and Ndaba Ncube with death. The deceased and Ndaba left, with the accused following them. The accused threw bricks at them, causing Ndaba to flee. The accused then struck the deceased multiple times on the head with bricks, causing severe skull fractures and subarachnoid haemorrhage, resulting in death. The accused was 24 years old at the time, while the deceased was 59. The accused claimed he had been angered by the deceased's rude response to his inquiry about a theft case he had reported to the deceased in his capacity as a Neighbourhood Watch Committee member. The accused alternatively claimed he threw bricks randomly to ward off an attack by the deceased and Ndaba.

• Whether the accused was guilty of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23
• Whether the accused acted with actual intent to kill (dolus directus) or constructive intent (dolus eventualis)
• Whether the accused's version that he threw bricks randomly to ward off attackers was credible
• Whether voluntary intoxication could operate as a defence

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act, Chapter 9:23 (murder with constructive intent/dolus eventualis). He was sentenced to 15 years imprisonment, with the court taking into account 2 years of pre-trial incarceration and his age of 24 at the time of the offense.

Where an accused's version of events is shown to be not only improbable but demonstrably false beyond reasonable doubt, the court may reject it and convict based on the State's evidence. For a conviction of murder with constructive intent (dolus eventualis) under section 47(1)(b) of the Criminal Law (Codification and Reform) Act, it must be proven that the accused realized there was a real risk or possibility that his conduct may cause death but continued nonetheless despite that realization. The extent, severity, and location of injuries can be used to infer the manner in which they were inflicted and to reject an accused's version that injuries resulted from random actions. Material omissions in an accused's initial statement (such as a warned and cautioned statement) regarding key defensive facts (such as acting in self-defence or under threat) can be used to assess the credibility of explanations given later at trial.

The court observed that voluntary intoxication does not avail an accused as a defence to murder. The court made broader observations about youth violence, stating that "it appears youths these days have no qualms about resorting to violence. It is as if it is now a favourite past-time and the courts must send a loud and clear message that such behavior will not be tolerated." The court emphasized that "life is God given and lived once and as such it is sacred" and reiterated the need for society to respect the sanctity of life. The court noted that sentencing must be rational and fair, applying a humane approach that "has nothing to do with maudlin sympathy" but ensures punishment fits both the crime and the criminal while being fair to society. The court observed that the deceased was old enough to be the accused's father (59 versus 24 years old), implicitly commenting on the need for respect for elders.

This case demonstrates the Zimbabwean High Court's approach to distinguishing between actual intent (dolus directus) and constructive intent (dolus eventualis) in murder cases. It reinforces the principle that where an accused's version is shown to be improbable and demonstrably false (applying R v Difford), it may be rejected. The case also illustrates the court's approach to assessing credibility where an accused gives explanations during trial that materially differ from statements made shortly after the incident. The judgment emphasizes the sanctity of life and the courts' consistent message against youth violence. It also demonstrates the application of sentencing principles requiring rationality, fairness, and a balance between the interests of the offender and society, following S v Harington and S v Rabie.