The State v Lovejoy Chikonzo and Anderson Gunyani and Innocent Musemwa

On 19 March 2025, the first accused's wife, Shamiso Mudzingwa, was allegedly robbed of her cellphone, with the deceased Shepherd Taurayi Manenji (aged 36 years) being the prime suspect. On 22 March 2025 at around 23:00 hours, the three accused persons proceeded to the deceased's house in Kadoma to recover the cellphone. They were let into the house by the deceased's wife, who woke up the deceased. After Shamiso confirmed the deceased had robbed her, the accused persons interrogated him. The deceased denied the allegations. After searching the house without finding the cellphone, the accused persons force-marched the deceased for about two kilometers, demanding he show them where the cellphone was. Along the way, they took turns assaulting him with a sjambok (whip), and the second accused also used a log weighing about half a kilogram to assault him. Unable to extract information, they left the deceased by the roadside. On 23 March 2025, the deceased was found dead behind Kudakwashe Makaza's house. The post-mortem report concluded death was due to subdural hemorrhage, severe edema and head trauma resulting from the assaults.

• Whether the accused persons were guilty of murder or culpable homicide
• The degree of negligence in causing the death of the deceased
• The appropriate sentence for culpable homicide where accused persons took the law into their own hands and assaulted a suspect leading to death
• Whether a non-custodial sentence of community service was appropriate

Each accused person was sentenced to 4 years imprisonment, of which 1 year was suspended for 5 years on condition that they do not commit any offence involving the use of violence upon the person of another and/or negligently causing the death of another through the use of violence. Effective sentence: 3 years imprisonment for each accused.

Where accused persons acting in common purpose take the law into their own hands by force-marching a suspect and persistently assaulting him with weapons (sjambok and log) leading to death, they are guilty of culpable homicide with a high degree of negligence. The degree of negligence can be determined by considering the weapons used, the time taken assaulting the deceased, the parts of body assaulted, and the number of blows. Where members of the community play vigilantes and incessantly assault a suspect leading to death, this cannot constitute ordinary negligence. A custodial sentence is appropriate for culpable homicide where life is lost, as the public expects such a sentence and a non-custodial sentence would put the criminal justice system into disrepute and cause society to lose confidence in the justice delivery system.

The Court observed that it is wrong for legal practitioners to simply place bare averments before the Court without articulation or substantiation. The Court expects factors upon which submissions are based to be articulated to persuade the Court. The Court noted that it was taken aback by the defence relying on factually incorrect information in mitigation, emphasizing the importance of legal practitioners being prudent in their submissions. The Court also observed that community service is a noble form of sentence but is appropriate for minor offences, and one cannot say that two adult men assaulting another person occasioning death is a minor offence. The Court reiterated the principle that sentencing is a balancing process and the court must impose a sentence that fits the offender, the offence, and is fair to the interest of justice, with the interest of justice being represented by the public's perception of justice. The Court cited S v Richards in noting that the court must temper justice with mercy, which is the hallmark of a civilized society.

This case is significant in Zimbabwean criminal jurisprudence as it addresses vigilante justice and demonstrates the courts' approach to culpable homicide where members of the community take the law into their own hands. The judgment reinforces that where a gang attack on a suspect leads to death, the degree of negligence is high and warrants a custodial sentence. The case clarifies that community service is inappropriate for culpable homicide as it would bring the justice system into disrepute, even where mitigating factors exist. The judgment provides guidance on assessing the degree of negligence by considering weapons used, time taken assaulting the victim, parts of body assaulted, and number of blows. It emphasizes the principle from S v Richards that in culpable homicide, the accused is punished for carelessness/negligence rather than evil intent, with the aim of encouraging society to be cautious and wary of the safety of fellow human beings.