The State v Last Scotch and Garikai Kamutotora

The two accused persons were charged with the murder of Henry Kativhu on 24 August 2008. It was alleged they assaulted the deceased with fists, open hands and booted feet at Johane Temba's Homestead, and then pursued him and continued assaulting him with sticks, inflicting fatal injuries. The post-mortem report indicated death was due to haemorrhage secondary to multiple lacerations caused by a sharp object. Both accused pleaded not guilty to murder but admitted fighting with the deceased in a drunken brawl arising from a long-standing grudge. They claimed the deceased, who was a neighbourhood watch policeman, was a village bully who started the fight without provocation. The accused admitted overpowering the deceased who then fled, but denied pursuing him. They contended that the deceased may have engaged in another fight with unknown villagers and fallen, hitting his head on a sharp object.

• Whether the accused had a case to answer at the close of the State's case
• Whether the accused should be discharged in terms of s 198(3)
• Whether the evidence established murder or a competent verdict
• Whether there was a causal link between the assault by the accused and the death of the deceased
• What the appropriate sentence should be for the assault conviction

Each accused person was sentenced to pay a fine of US$100.00 or in default of payment 30 days imprisonment. In addition, each received six months imprisonment, the whole of which was suspended for a period of five years on condition that the accused does not again, within that period, commit any offence involving assault for which he is sentenced to imprisonment without the option of a fine.

Where an accused is charged with murder but the State establishes a prima facie case only for a competent verdict (such as assault), it is inappropriate to discharge the accused at the close of the State's case in terms of s 198(3). The accused must be put on their defence. Where the State cannot prove the causal link between an assault and the death of the victim, a conviction for murder cannot be sustained, but conviction for assault based on the admitted conduct remains competent. In sentencing for assault offences, courts must balance mitigating factors with the need for deterrence, particularly where such offences are prevalent. Intoxication does not excuse criminal conduct and persons who commit assaults while drinking must face deterrent sentences to protect society.

The court observed that it was questionable for the State to persist with a murder charge when it had conceded there was no intention to kill and the evidence pointed in a different direction. The court commented that people must not hide behind alcohol consumption to commit unnecessary assaults which may lead to fatal consequences. The court distinguished the case from Mukomba (a case over which Bhunu J had presided) where negligence was involved, noting that the present case involved deliberate assault requiring a deterrent approach. The court noted that the accused were fortunate that no link could be proved between their assaults and the cause of death.

This case illustrates the application of competent verdicts in Zimbabwean criminal law where the evidence does not support the main charge but establishes a lesser offence. It demonstrates the court's approach to dealing with violent offences committed during drunken brawls and emphasizes that intoxication is not a defence or excuse for violent conduct. The case also highlights the importance of establishing causation in homicide cases - here the State could not prove the necessary link between the assault and death, resulting in conviction for the lesser charge of assault. The judgment reinforces the need for deterrent sentences for assault offences even where the accused are first offenders, balancing individual circumstances with societal protection.