The State v Isaac Mlambo

On 26 December 2013, at Ngundu Business Centre, the accused (a Mozambican national) and an accomplice who remained at large arrived and began indiscriminately firing firearms. The deceased, Trust Tapera Chibaya, a money changer and airtime vendor, was working at the business centre. The accused chased the deceased with a CZ pistol, demanding he surrender his small black bag containing cash. After the deceased complied and was ordered to empty his pockets, the accused shot him at arm's length. The deceased died on admission to Ngundu Clinic from penetrating trauma to the chest secondary to a bullet wound. The accused was apprehended by a pursuing crowd while clutching the deceased's bag and the firearm. The post-mortem examination was conducted by Dr S. Gomo on 27 December 2013. The accused denied the allegations, claiming his accomplice Mike Sithole was responsible for the shooting and that he was merely visiting Zimbabwe from South Africa and panicked when the shooting started.

• Whether the accused murdered the deceased with actual intent to kill
• Whether the accused could be identified as the perpetrator of the murder
• Whether there were any extenuating circumstances
• Whether the murder was committed in aggravating circumstances as defined by section 48(2) of the Constitution
• Whether the death penalty could be imposed in the absence of specific legislation defining 'aggravating circumstances' under the new Constitution

The accused was found guilty of murder with actual intent. The court sentenced the accused to death, finding no extenuating circumstances and that the murder was committed in aggravating circumstances as contemplated by section 48(2) of the Constitution. The accused was ordered to be returned to custody where the sentence of death shall be executed according to law.

Murder committed during the course of an armed robbery, where a defenceless and compliant victim is killed at arm's length after surrendering property, constitutes murder committed in aggravating circumstances warranting the death penalty under section 48(2) of the Constitution. The common law definition of "aggravating circumstances" developed through precedent remains applicable under the new Constitution without requiring new legislation. Where an accused is continuously observed from the commission of the offence until immediate apprehension with the murder weapon and stolen property in possession, strict identification parade procedures are not required as the identity of the perpetrator is not in dispute. Under the doctrine of common purpose, all participants in a planned violent criminal enterprise are liable for the foreseeable consequences of that enterprise, including murder committed by a co-perpetrator.

The court commended the "heroic conduct" of the witnesses Takaidza Mananavire (aged 23) and David Tsindikira who risked their lives to apprehend the armed accused, stating "They exhibited rare courage." The court expressed the view that "this case screams loudly for the imposition of death penalty" and suggested that the callous manner of the offence is "a passionate plea to this Court by those in the mould of the accused person or similarly inclined individuals to retain death penalty in this country despite all the noise that continues to be made against it." The court noted that while the State witness Freeman Chiware claimed not to have seen the accused assaulted upon arrest, "probabilitiesh favour the assault of the accused at the time of his arrest" given the gravity of his conduct, indicating the court's recognition that mob justice likely occurred even if not directly witnessed or admitted.

This case is significant in Zimbabwean jurisprudence for its interpretation of section 48 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 regarding the death penalty. The judgment represents a judicial position that courts can continue to impose the death penalty for murders committed in "aggravating circumstances" based on existing common law precedent, without waiting for new legislation to define such circumstances. The case affirms that murders committed during the commission of other serious crimes such as robbery constitute aggravating circumstances warranting capital punishment. It also provides guidance on the distinction between cases requiring careful identification evidence and cases where the accused's identity is not in dispute due to continuous observation and immediate apprehension. The judgment demonstrates the continued application of the doctrine of common purpose in criminal cases involving multiple perpetrators.