The State v Khetani Kasha and Isaac Kasha

On 13 June 2016, two brothers, Khetani Kasha (accused 1, the elder) and Isaac Kasha (accused 2, a juvenile), went to assist their father Shadreck Kasha to ferry sorghum from the fields using an ox-drawn scotch cart. Their 10-year-old nephew Hardlife Makwenyele accompanied them. A dispute arose between the deceased and accused 2 over exchanging a beast for donkeys and a cell phone. At the fields, while loading sorghum, accused 1 attacked the deceased with an axe, striking him on the back of the head and neck, causing decapitation and death. The body was concealed with grass. Accused 2 assisted by fetching grass to cover the body. Both accused lied to their mother that the deceased remained at the fields. The body was discovered the next day. Accused 1 claimed self-defence, alleging the deceased attacked him with a machete then an axe. Accused 2 denied participation. The key witness was the 10-year-old Hardlife who testified via closed circuit television, stating accused 1 attacked the deceased unprovoked while he was bending down loading sorghum.

• Whether accused 1 acted in self-defence when he killed the deceased with an axe
• Whether accused 1 had the requisite intent for murder (actual intent vs constructive intent)
• Whether accused 2 was an accessory to murder after the fact by assisting in concealing the body and the crime
• The credibility of the child witness Hardlife Makwenyele
• The criminal liability under section 206 of the Criminal Law (Codification and Reform) Act for rendering assistance after commission of a crime

Accused 1 (Khetani Kasha): Guilty of murder with actual intent in contravention of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Sentenced to life imprisonment. Accused 2 (Isaac Kasha): Guilty of being an accessory to the crime of murder in contravention of section 206(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Warned, cautioned and discharged.

A person who, knowing that another has committed a crime, renders assistance which enables the perpetrator to conceal the crime (such as covering the victim's body with grass to hide it) is guilty as an accessory to that crime under section 206(a) of the Criminal Law (Codification and Reform) Act, even if they did not participate in the actual commission of the crime. Multiple contradictory versions given by an accused person (in warned and cautioned statement, defence outline, and testimony) destroys credibility and can rebut a defence of self-defence. Actual intent to kill can be inferred from the manner of attack, including: premeditation (bringing and hiding the weapon beforehand), the nature of the weapon used (axe), the force applied (decapitation/severing the neck), multiple blows delivered, and post-offence conduct including concealing the body, destroying evidence, threatening witnesses, and lying repeatedly without remorse. A child witness of tender years can be a credible and reliable witness if their evidence is consistent, not exaggerated, free-flowing, and corroborated by other evidence, notwithstanding their age.

The court expressed concern about the prevalence of murder cases in Masvingo Province and stated that courts should send correct signals that the sanctity of human life must be respected at all costs. The court lamented the declining sense of morality among some young people who readily resort to extreme violence using lethal weapons at the slightest provocation or none, suggesting this may be due to inherent wickedness. The court noted that human blood is sacred and no one has the right to take another's life. The court observed that the level of education (Grade 7) of a 26-27 year old accused cannot be considered a mitigating factor, nor can that age be considered youthful for sentencing purposes in a murder case. The court expressed sympathy for the mother who lost her husband and now faced losing both her sons, understanding her protective stance toward the younger accused.

This Zimbabwean High Court judgment is significant for South African jurisprudence as it addresses several important principles: (1) the assessment of child witness credibility in serious criminal matters and the use of intermediary/closed circuit television to protect vulnerable witnesses; (2) the application of statutory provisions defining accessory liability after commission of a crime, specifically dealing with assistance in concealing evidence; (3) the rejection of fabricated self-defence claims through analysis of multiple contradictory versions given by an accused; (4) the importance of evidence establishing premeditation and actual intent in murder cases; (5) sentencing differentiation between principal offenders and accessories, particularly where the accessory is a juvenile; and (6) the court's emphasis on protecting the sanctity of human life and deterring violent crime involving lethal weapons. The case demonstrates rigorous analysis of witness credibility, particularly of child witnesses, and proper application of accessory liability principles that are similar in South African criminal law.