The State v Garikai Zvawanda Tabarinda and Itai Manyoka

On 2 December 2016, accused 1 (Tabarinda), aged 43, set fire to a room at No 343 Fusire Road, Old Ascot, Gweru, where his former girlfriend Nancy Sibanda (28) and her cousin Cynthia Hlabangana (24) were sleeping. Tabarinda and Nancy had ended their relationship in October/November 2016, and Nancy had obtained a protection order against him due to his consistent abuse and harassment. On the night in question, after intercepting a love message on Nancy's phone, Tabarinda hired accused 2 (Manyoka, aged 32) to drive him in a Honda Fit vehicle. They purchased 9 litres of petrol at a service station. Tabarinda went to Nancy's new lodgings at around 0200 hours, broke a window pane, and threw molotov cocktails (petrol containers) into the room, followed by a lit match, despite seeing both women sitting on the bed. The two women sustained 60% and 55% burns respectively and died on 4 and 6 December 2016. After committing the arson, both accused went to nearby shops to drink beer, later visited the hospital where the victims were admitted, and fled when identified. Nancy gave a dying declaration identifying Tabarinda as her attacker before she died.

• Whether accused 1 committed murder with actual intent
• Whether accused 2 was an accomplice to murder or an accessory after the fact
• Whether the defence of compulsion was available to accused 2
• The applicability of aggravating factors under section 47(2) and (3) of the Criminal Law (Codification and Reform) Act
• Admissibility of dying declaration under section 254 of the Criminal Procedure and Evidence Act
• Whether accused 2 should be treated as a co-perpetrator under section 198(2) of the Criminal Law Code

Accused 1 (Tabarinda) was found guilty of two counts of murder with actual intent and sentenced to death. Accused 2 (Manyoka) was found guilty as an accessory to two counts of murder and sentenced to 15 years imprisonment. The two counts were treated as one for purposes of sentence.

The binding legal principles established are: (1) Under section 198(2) of the Criminal Law (Codification and Reform) Act as amended in 2016, for an assister to be liable as an accomplice under paragraph (a) (holding oneself available to give assistance), there must be evidence that the person was available to assist in the commission of the crime, not merely present in the vicinity; (2) A person who becomes aware of a crime after its commission and then assists the perpetrator to evade justice is an accessory under sections 205-206, not an accomplice; (3) A dying declaration properly recorded under section 254 of the Criminal Procedure and Evidence Act is admissible evidence and carries significant evidential weight, particularly when corroborated by other evidence; (4) The aggravating factors under section 47(2) and (3) apply where murder is committed in connection with unlawful entry and malicious damage to a dwelling by fire, where the murder was premeditated, and where multiple murders were committed in the same episode; (5) While an accessory to murder is technically liable to the same punishment as the actual perpetrator under section 210, courts retain discretion to impose differential sentences based on reduced moral blameworthiness and level of participation; (6) The defence of compulsion under sections 243-244 is not available where the accused voluntarily continued to associate with the perpetrator after becoming aware of the crime and had opportunities to disengage or report to police.

The court made several important non-binding observations: (1) Strong condemnation of gender-based violence and intimate partner abuse, stating that "when a woman says 'no', she means 'no'. She does not mean 'no but yes'"; (2) Criticism of archaic beliefs that treat women as objects of appropriation by men to be abused at will; (3) Commentary on the systematic nature of domestic abuse in this case, noting Nancy had tried multiple avenues to escape (moving houses, obtaining protection orders) but was persistently stalked; (4) Observation that accused 1's conduct demonstrated he believed that once he had chosen a woman he would not accept rejection, and that she could be "appropriated as a piece of chattel"; (5) Condemnation of the "coldness" and lack of respect for human life displayed by both accused, particularly in drinking beer near the scene while victims were dying; (6) The court described the death as "painful and defining" and condemned the "savagery and banditry" displayed. These observations reflect the court's recognition of femicide as a serious social problem requiring strong judicial response.

This case is significant in South African and Zimbabwean criminal jurisprudence for several reasons: (1) It demonstrates the court's application of the dying declaration provisions under section 254 of the Criminal Procedure and Evidence Act, showing strict compliance requirements and evidential weight; (2) It clarifies the distinction between accomplice liability under section 198 and accessory after the fact under sections 205-206 of the Criminal Law Code, particularly following the 2016 amendments to section 198; (3) It illustrates the application of aggravating factors in murder cases involving gender-based violence, domestic abuse, and femicide; (4) The judgment makes strong statements about gender-based violence and the rights of women to refuse relationships, emphasizing that "when a woman says no, she means no"; (5) It addresses the differential sentencing of co-accused based on moral blameworthiness and level of participation, while acknowledging that accessories are technically liable to the same punishment as perpetrators under section 210. The case exemplifies the scourge of intimate partner violence and femicide in southern Africa.