The State v Moses Ncube and Walter Moyo

The two accused persons were charged with murder in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. On 15 November 2017, during the early hours of the morning, the accused persons together with accomplices still at large broke into Marian Kajewe's residence at Block 80/2443 Mpopoma, Bulawayo, and robbed her. The deceased, a 39-year-old tenant at the same premises, responded to Kajewe's screams for help. As he went to assist, he encountered the accused persons and their accomplices leaving Kajewe's room. He was struck with a machete once on the neck and once on the back of the head, leading to his death. The robbery was elaborately planned over two days by six individuals: the two accused, Sisasenkosi Moyo (who lived at the premises and overheard about money), Sithandekile Moyo (sister of accused 2), and two accomplices Blessing Moyo and Mandlenkosi Moyo (still at large). The plan involved specific roles: some would enter and rob, accused 2 would stand guard outside, and communication would be coordinated. The robbers were armed with knives, a machete, and a metal garden bar. They attacked Kajewe, stabbed her twice, and robbed her of $60. The deceased was killed during the robbery. First accused claimed he remained in the yard and fled when he heard screaming. Second accused claimed he had a change of heart at the gate and left before the robbery occurred.

• Whether the accused persons could be convicted of murder based on the doctrine of common purpose despite not being the actual perpetrators who struck the fatal blows
• Whether withdrawal from the scene of a crime constitutes dissociation sufficient to afford a defence to murder
• Whether playing a subsidiary role in a planned robbery that results in murder affects criminal liability
• What sentence is appropriate for murder committed in the course of a robbery where the accused were found guilty of constructive intent

Both accused persons found guilty of murder with constructive intent. Each sentenced to 30 years imprisonment. The court also noted its displeasure with the first state witness Sisasenkosi Moyo, finding her unworthy of protection from prosecution under section 267(2) of the Code, and stated the state is at liberty to prosecute her.

When persons act in common purpose to commit a crime of violence such as robbery, each participant is criminally liable for all consequences including murder, even if committed by another participant, unless they positively dissociate themselves from the criminal enterprise. Mere withdrawal from the scene of the crime or playing a less active role does not constitute dissociation sufficient to afford a defence. To dissociate, a participant must do something positive to avert the danger which their recklessness has brought about. When embarking on a violent crime, all participants must be taken to have contemplated that the victim's reaction is unknown and that force including lethal force might be used. The linking of fate occurs at the planning stage - each participant's constructive intention to kill depends on decisions that may be made by armed companions during the commission of the offence. Under the doctrine of common purpose, withdrawal of services during commission of the offence does not break criminal liability once the participant has actively taken part in the criminal enterprise with knowledge of the risks involved.

The court observed that robbery cases leading to death are on the increase at alarming rates in Zimbabwe, with young people including women going to South Africa, copying what they see there and exhibiting reckless conduct toward life upon return. The court noted that makorokoza (illegal mining) societies exhibit similar patterns. The court emphasized that courts will not tire in their duty to protect society from criminals who plan to rob and take human life. The court noted that taking a non-combat role in a crime is different from dissociation, and while it does not necessarily entitle the participant to claim favours regarding conviction, playing a subsidiary role may in appropriate cases be rewarded by reduced sentences. The court expressed displeasure with witness Sisasenkosi Moyo for downplaying her role as the initiator of the robbery plan, lying about the first accused's participation, and concealing that the second accused was her boyfriend, finding her unworthy of protection under section 267(2) of the Code. The court observed that sentencing is a judicial officer's nightmare, and emphasized the importance of having information about the offender as a person to ensure the dual goals of protection of the community and rehabilitation of the offender are fulfilled.

This case is significant in Zimbabwean criminal law for its comprehensive application of the common purpose doctrine in the context of murder during robbery. It reinforces the principle that all participants in a planned violent crime are liable for the consequences, including murder, even if they did not personally inflict the fatal injuries. The judgment clarifies that mere withdrawal from the scene of a crime is insufficient to constitute dissociation - a participant must take positive steps to avert the danger created by their reckless conduct. The case also demonstrates judicial discretion in sentencing for murder with constructive intent during robbery, balancing the need to protect society from violent crime with mitigating factors such as subsidiary roles and absence of direct evidence of who inflicted the fatal blows. It provides important guidance on the application of sections 196, 196A, 196B and 200 of the Criminal Law (Codification and Reform) Act regarding defences based on dissociation from criminal conduct.