The State v Luke Mupfumwa

On 19 June 2017 at Headlands Hotel, the deceased Winchester Karichi was watching a pool game between Tawanda Chiruka and an opponent. The deceased remarked that the opponent had played a nice shot, which angered Chiruka who believed the comment caused him to lose the game. A scuffle ensued between Chiruka and the deceased. After the altercation died down and parties separated, the accused Luke Mupfumwa handed an okapi knife to Chiruka upon request. Chiruka then used this knife to stab the deceased in the lower left side of the stomach, causing fatal injuries. The accused and Chiruka were colleagues from the same rural home who worked together in brick moulding. After the stabbing, Chiruka called the accused and informed him that he had stabbed someone, and they fled the scene together. At the time of trial, Chiruka was still at large.

• Whether the accused acted with common purpose and in concert with the actual perpetrator Tawanda Chiruka in committing murder
• Whether the accused possessed the requisite mens rea (direct or constructive intention to kill) when he supplied the okapi knife
• Whether the accused was conscious of what Chiruka intended to do with the knife
• Whether the accused's conduct established him as a co-perpetrator under section 196A of the Criminal Law (Codification and Reform) Act
• Whether the State proved its case beyond reasonable doubt

The accused Luke Mupfumwa was found not guilty of murder and acquitted.

For a person to be convicted as a co-perpetrator under section 196A of the Criminal Law (Codification and Reform) Act, the State must prove: (1) that the accused was physically present with the actual perpetrator when the crime was committed; (2) that the accused knowingly associated with the commission of the crime; and (3) that the accused possessed the requisite mens rea, being either intention to commit the crime, knowledge that it would be committed, or realization of a real risk or possibility that such a crime would be committed. The mere supply of an instrumentality (weapon) used to commit a crime, in the absence of evidence establishing consciousness of its intended criminal use and common purpose, is insufficient to establish co-perpetrator liability. Where the evidence permits multiple reasonable inferences, including an innocent explanation, and the State has not excluded reasonable doubt, the accused must be acquitted.

The court observed that the accused's possession of a dangerous and prohibited okapi knife, while potentially constituting a separate offense, could not form the basis for conviction as he was not charged with that specific crime. The court also noted that even the competent verdict of culpable homicide could not be sustained in the absence of evidence of fracas or commotion at the time the knife was handed over, which would be necessary to establish negligence on the part of the accused. The court reiterated established principles from South African and Zimbabwean jurisprudence regarding burden of proof, citing R v Difford 1937 AD 370, R v M 1946 AD 1023, S v Makanyanga 1996 (2) ZLR 231, and S v Kuiper 2009 (1) ZLR, emphasizing that the accused has no duty to prove innocence and that even an improbable explanation must be acquitted if it is reasonably possibly true.

This case is significant in Zimbabwean criminal jurisprudence as it clarifies the requirements for establishing co-perpetrator liability under section 196A of the Criminal Law (Codification and Reform) Act. It emphasizes that mere association with the principal perpetrator and supplying an instrumentality used in a crime is insufficient to establish liability without proof of: (1) physical presence during the commission of the crime; (2) conscious association with the criminal act; and (3) the requisite mens rea. The judgment reinforces the principle that the State bears the burden of proving guilt beyond reasonable doubt, and that where multiple reasonable inferences can be drawn from the evidence, the accused is entitled to the benefit of the doubt. It also demonstrates the importance of temporal context - the fact that the knife was supplied after the altercation had subsided was crucial to negating the inference of common purpose.