The State v Frank Mbano and Godfrey Mbano and Mlamuli Mgezelwa

The three accused persons were mine workers at Masiziba Mine in Ngulubeni area of Plumtree. On 21 April 2013, they were drinking alcohol at Majojo Business Centre together with the deceased, Mpumelelo Moyo (aged 26), who was also a mine worker. A fight erupted when the deceased and Cosmas Maphosa assaulted Edmore Ndlovu (a colleague of the accused) and accused two. Accused two called accused one, who had been at his girlfriend Fidelia Nyoni's home, to inform him of the assault. Accused one then left his girlfriend's home without notice. Later that night, the deceased was found dead near Manyosi Ngwenya's homestead with severe head injuries. The three accused persons returned to the mine compound with bloodstained clothes and confessed to Fidelia Nyoni that they had killed a person. They forced her to abscond with them to avoid detection, traveling to Bulawayo and then to Inyathi where they confessed to their mother. They surrendered to police on 7 May 2013, more than two weeks after the incident. The deceased died from extensive subarachnoid haemorrhage, multiple skull fractures, and blunt force trauma to the head.

• Whether the accused persons murdered the deceased
• Whether the conviction could be based on circumstantial evidence
• Whether confessions made to a third party (not police) could support a conviction
• Whether all three accused participated in the murder
• The applicable standard for conviction based on circumstantial evidence
• The weight to be given to evidence of a witness who was initially arrested as a suspect

All three accused persons were found guilty of murder with constructive intent and each sentenced to 16 years imprisonment (with credit for 4 years already spent in remand custody).

The binding legal principles established are: (1) A court may convict on circumstantial evidence where the inference of guilt is the only inference that can fairly and reasonably be drawn from proven facts, is consistent with those facts, and excludes beyond reasonable doubt every reasonable hypothesis of innocence. (2) Under section 273 of the Criminal Procedure and Evidence Act, a court may convict on the basis of a confession made by an accused person (including confessions to third parties, not just police) even without confirmation, provided the offence has been proved by competent evidence other than the confession. (3) A person who was kidnapped by perpetrators after a crime to prevent her from reporting to police is not an accomplice but a victim, and her evidence need not be treated with the caution applicable to accomplice evidence. (4) Flight from the scene, coupled with confessions to third parties and attempts to conceal evidence, can support an inference of guilt where combined with other circumstantial evidence showing means, motive and opportunity.

The court made observations about the problem of loss of life at mine compounds in Zimbabwe, stating that mine workers clearly have no respect for human life and that courts have a duty to uphold the sanctity of human life by imposing sentences that reflect society's revulsion at such conduct. The court also commented on the aggravating factors including: directing blows at the most vulnerable part of the body (the head); attempting to dispose of the body; kidnapping an innocent pregnant woman; lack of contrition by contesting the matter; and high moral blameworthiness. The court noted mitigating factors including: first offenders; youth (accused one was 24, accused two was 21); consumption of large quantities of alcohol impairing judgment; provocation in that the deceased started the fracas; and eventual surrender to police (though not at their own instance).

This case provides important guidance on: (1) the application of the test for conviction based on circumstantial evidence in Zimbabwean criminal law, reaffirming the principle that the inference of guilt must be the only reasonable inference and must exclude every reasonable hypothesis of innocence; (2) the use of confessions made to third parties (not police) as evidence under section 273 of the Criminal Procedure and Evidence Act; (3) the treatment of evidence from witnesses who were initially arrested as suspects but were actually victims; (4) the distinction between accomplices and victims for purposes of evaluating witness credibility; and (5) sentencing principles for murder in mine compound settings, emphasizing the need to protect the sanctity of human life and impose deterrent sentences.