The State v Lazarus Togarepi

On 14-15 November 2015, the deceased Paradzanai Badza (aged 40) and accomplice Simbarashe Mutodi attempted to steal a car battery from Mupanduki's homestead in Matsvange Village. Simbarashe was caught while the deceased escaped to his home. The accused, Lazarus Togarepi, who was the acting Village Head, was called to the deceased's residence around 2300 hours. The accused entered the deceased's house through a window, encountered the deceased armed with a knife and knobkerrie, and called for help. His alleged accomplice Charles broke down the door, forcing the deceased outside. The accused and Charles then assaulted the deceased using switches, logs, open hands, fists and booted feet at the deceased's residence, en route to Mupanduki's homestead, and at Mupanduki's homestead. The assault continued from around 2300 hours until 0500 hours. The deceased sustained severe injuries including a depressed skull fracture, cervical spine fracture, multiple rib fractures, and bilateral periorbital haematomas. He could no longer walk and died while being transported to the police in a wheelbarrow. The accused was initially charged with murder jointly with Charles Chinhosva (who remained at large).

• Whether the accused caused the death of the deceased
• Whether the accused acted alone, with his accomplice Charles, or as part of a mob
• Whether the accused had the requisite intention for murder (actual or constructive intent)
• Whether the appropriate conviction should be murder, culpable homicide, or assault

The accused was found not guilty of murder but guilty of contravening section 49 of the Criminal Law (Codification and Reform) Act [Cap 9:23] (culpable homicide). He was sentenced to 5 years imprisonment, with 2 years suspended for 5 years on condition he does not commit any offense involving violence upon another person resulting in imprisonment without the option of a fine. Effective sentence: 3 years imprisonment.

Where an accused assaults a victim using prima facie non-lethal weapons (hands, fists, feet, switches) in a prolonged and brutal manner resulting in death, but it cannot be proved beyond reasonable doubt that the accused foresaw that death would result, the appropriate conviction is culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act rather than murder. The accused's negligent failure to guard against the possibility of death, rather than actual or constructive intent to kill, constitutes the mens rea for culpable homicide. An accused who provides multiple materially inconsistent versions of events (in warned and cautioned statements, defense outlines, and testimony) lacks credibility and such inconsistencies may be used against them.

The court observed that the matter involved a prolonged trial that could have been avoided had counsel properly applied their minds to the case and evidence from the outset, noting that the State eventually conceded to culpable homicide while the defense proposed assault. The court commented that being an unsophisticated rural person is difficult to appreciate as a mitigatory factor, as an adult village head should fully appreciate the unlawfulness of his conduct. The court noted that a person in a position of authority such as a village head should be exemplary and guide subjects to act within the law rather than taking the law into their own hands. The judgment emphasized that no life should be lost over a petty offense involving a used car battery. The court also noted the importance of the investigating officer's evidence regarding why witnesses were initially arrested as suspects and later became State witnesses, though this officer was unavailable having been discharged and relocated to Botswana.

This case demonstrates the application of culpable homicide principles in Zimbabwean criminal law where death results from a prolonged assault but constructive intent to kill cannot be proved beyond reasonable doubt. It illustrates the distinction between murder with constructive intent and culpable homicide, particularly in cases of mob justice or vigilante violence in rural communities. The judgment emphasizes that even where victims are suspected criminals, taking the law into one's hands and causing death through negligent assault warrants serious custodial punishment. The case also highlights the court's approach to assessing credibility where an accused provides multiple inconsistent versions, and the cautious treatment of accomplice evidence and witnesses who were initially suspects.