The State v Last Mbizi

The accused was charged with murder under s 47(1)(a) of the Criminal Law (Codification and Reform) Act for allegedly stabbing the deceased, Mika Adriana, with a knife in the abdomen on 23 August 2020 along Hunyani River in Mhangura. Both the accused and deceased were artisanal miners who worked together and slept at the same makeshift camp. On the fateful evening, both had consumed large amounts of intoxicating spirits and were heavily inebriated. A misunderstanding arose between them over cigarettes. The deceased suffered a fatal abdominal wound during a physical altercation with the accused. The deceased's intestines were protruding from his stomach. Before he died, the deceased told witnesses that the accused had stabbed him. The accused fled the scene. The deceased later died from his injuries. The accused pleaded not guilty, claiming that during a scuffle initiated by the aggressive deceased who charged at him with a glowing piece of wood, the deceased was accidentally injured by his own knife. No one actually witnessed the stabbing itself as it occurred at night in pitch darkness around 22:00-23:00 hours.

• Whether the accused stabbed the deceased or whether the deceased was injured by his own knife during the struggle
• Whether the statements made by the deceased before his death constituted admissible dying declarations
• The applicability of the dying declarations exception to hearsay evidence in Zimbabwean law following English law reforms
• Whether the requirements for admitting dying declarations in Zimbabwe needed development in light of gaps created by English law reforms
• Whether the prosecution proved its case beyond reasonable doubt in the absence of eyewitness testimony

The accused was found not guilty and acquitted of the charge of murder.

The binding legal principles established are: (1) Following English law reforms that abolished common law hearsay exceptions, including dying declarations, a gap exists in Zimbabwean law regarding requirements for admitting dying declarations that were historically dependent on English common law practice; (2) Courts have constitutional authority under s 176 to develop common law requirements for dying declarations in the interests of justice; (3) In addition to the traditional requirements for dying declarations (dangerousness of illness, hopelessness of recovery, death of declarant, trial for homicide, statement relating to cause of death, competence as witness), a new requirement is established: the dying declaration must be free from obvious imperfections before it can be relied upon as a basis for conviction; (4) A dying declaration from a heavily intoxicated person who was possibly the aggressor and had incentive to shift blame contains obvious imperfections and should not be relied upon without corroborating evidence; (5) Where the prosecution's case depends entirely on a dying declaration that contains such imperfections and there is no eyewitness evidence, the prosecution has not proven its case beyond reasonable doubt.

The court made extensive obiter observations criticizing the theoretical foundations of the dying declarations exception, describing as "puerile" and based on "outdated religious persuasions" the assumption that persons facing death cannot lie due to fear of divine retribution. The court noted that modern constitutional protections for religious freedom mean citizens hold diverse religious beliefs or none at all, making it inappropriate to base legal decisions on centuries-old religious assumptions with no scientific grounding. The court observed that mortally wounded individuals in excruciating pain may be prone to imagination, may focus only on their side of the narrative, and that witnesses receiving such declarations may be too discomposed to pay proper attention. The court also commented that the applicability of the dying declarations exception in Zimbabwe was "at best highly questionable and at worst impractical" and described the historical judicial acceptance of dying declarations as "the most arbitrary and brazen judicial shamelessness" where courts "simply conspired to agree" that impending death created truthfulness without any evidentiary basis.

This case is significant in Zimbabwean criminal law for developing the common law requirements for admitting dying declarations as exceptions to hearsay evidence. The judgment addresses a critical gap created by the abolition of common law hearsay exceptions in English law (through the Criminal Justice Act 2003) while Zimbabwean law remained dependent on pre-1927 English practice. The court exercised its constitutional power under s 176 of the Constitution to develop the common law by adding a new requirement that dying declarations must be free from obvious imperfections before being relied upon for a conviction. This represents an important safeguard against wrongful convictions based solely on statements made by deceased persons who may have been intoxicated, aggressive, or had incentives to misrepresent events. The case also demonstrates the courts' willingness to critically examine outdated legal principles based on religious assumptions rather than scientific evidence, particularly the presumption that persons facing death cannot lie.