The State v Kholisani Nyathi and Nkosikhona Sibanda

On 22 April 2021, Elvis Dube (deceased 1) left home at approximately 6 pm with a Hisense cell phone. His body was discovered the next morning in an open space near Cowdray Park with multiple stab wounds and injuries to the head and neck. His cell phone was missing. The phone was later traced to Tendai Taderera, who bought it from Ntokozo Moyo, who testified he purchased it from both accused persons in April 2021 for USD20.00. On 13 May 2021, the accused persons encountered Joseph Mawa Moyo (deceased 2), a 63-year-old man. Accused 1 struck him twice on the head with an axe, and accused 2 searched him and stole his Techno cell phone. They sold this phone to Owen Ncube for USD10.00. Both accused were arrested and made confirmed warned and cautioned statements admitting to the second murder. Accused 1 was 28 years old with two minor children; accused 2 was 24 years old (23 at the time of offences) with three minor children. Both had no previous convictions.

• Whether the doctrine of recent possession could establish the accused persons' involvement in the murder and robbery of deceased 1
• Whether the accused persons' confirmed warned and cautioned statements constituted admissible confessions for the murder of deceased 2
• Whether the State proved the elements of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act beyond reasonable doubt
• Whether the accused persons acted with common purpose
• What is the appropriate sentence for murder committed in the course of robbery

Both accused were found guilty on Count 1 (murder of Elvis Dube) and Count 2 (murder of Joseph Mawa Moyo) as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each accused was sentenced to life imprisonment on Count 1 and life imprisonment on Count 2, with the sentence in Count 2 to run concurrently with Count 1, resulting in an effective sentence of life imprisonment for each accused.

1. The doctrine of recent possession applies in murder cases where theft is a component. Where three requirements are satisfied (goods were stolen; recently stolen; accused failed to give innocent explanation for possession), the court may infer the accused committed both the theft and the murder. 2. Deliberate lies by an accused on material issues can corroborate the State's case where the lies relate to material issues, the motive is realization of guilt and fear of truth, and the totality of evidence supports this inference. 3. A confirmed warned and cautioned statement under section 113 of the CP&E Act is admissible upon production without further proof (section 266(2)), and the onus is on the accused to prove it was not made freely and voluntarily. Consent to admission of such statements precludes later challenge. 4. A confession constitutes an unequivocal acknowledgment of guilt equivalent to a plea of guilty. Under section 273 of the CP&E Act, a court may convict on a confession alone provided competent evidence other than the confession proves the offence was actually committed. 5. Under the doctrine of common purpose, the conduct of each participant in execution of the common purpose is imputed to the others, making it immaterial who delivered the fatal blow. 6. Under section 47(1) of the Criminal Law (Codification and Reform) Act, it is not necessary to specify whether an accused is convicted under subsection (a) (actual intent) or (b) (constructive intent/dolus eventualis).

The court observed that murder committed in the course of robbery is inherently aggravating, involving premeditation, criminal resolve, brazen execution, attack on human victims with disregard for personal security, and forceful dispossession. Such conduct demonstrates contempt and callousness warranting reflection in sentencing (citing S v Madondo 1989 (1) ZLR 300). The court noted that while the accused were liable to the death penalty for murder committed during robbery, judicial restraint was exercised because accused 2 was 23 years old at the time of the offences (a youthful offender under 25), and the court did not wish to treat co-offenders differently. The court emphasized that courts will never tire of upholding the sanctity of human life and that society must be protected from wicked offenders by permanent removal from society. The court commented on the prevalence of murder leading to loss of appreciation for its extreme consequences, noting that murder ends not only the victim's life and all associated rights (dignity, equality, freedom, life itself), but irreparably alters and damages the lives of family and friends.

This case demonstrates the application of the doctrine of recent possession in murder cases where theft is a component, extending the principle from S v Kawadza and S v Moyo. It affirms that where an accused is found in possession of recently stolen property from a murder victim and cannot provide an innocent explanation, the court may infer guilt for both the theft and the murder. The judgment also clarifies the requirements for confessions under section 273 of the CP&E Act, emphasizing that a confession alone can ground a conviction provided competent evidence proves the offence was actually committed. The case illustrates the courts' approach to murders committed during robbery, treating them as particularly aggravated offences deserving severe punishment. It also demonstrates judicial restraint regarding the death penalty for youthful offenders (under 25 years at the time of offence). The judgment reinforces that under section 47(1) of the Criminal Law (Codification and Reform) Act, it is unnecessary to specify whether murder is committed under subsection (a) or (b).