The State v Mxolisi Nkomo

On 9 October 2019 at Polite Nkomo's homestead, Madlambuzi, the accused (aged 20) together with two accomplices, Trymore Nkomo (aged 15) and Life Ncube (aged 14), went to the homestead of Maina Moyo, an 82-year-old woman, with the intention to steal money. The accused used a kitchen knife to open the door to the deceased's bedroom. When the deceased, who was awake, lit a match stick, the accused grabbed her firmly by the neck and strangled her. The deceased struggled and eventually fell to the ground while the accused continued holding her neck tightly. The deceased gasped for breath. The accused instructed Life Ncube to continue holding the deceased's neck while they searched for money and ransacked the house. They stole R300 and some clothes belonging to Ashley Nkomo (the deceased's great-grandson). The perpetrators left the deceased lying on the floor. The following morning, Ashley discovered the deceased's lifeless body under the bed. Villagers tracked the assailants by following shoe prints and apprehended the accused wearing Ashley's clothes. The post-mortem report revealed death by mechanical asphyxia, neck constriction, and strangulation by hands, with haemorrhagic infiltrate of neck muscles and fracture of the hyoid bone.

• Whether the accused should be convicted of murder with actual intent or culpable homicide
• Whether the accused foresaw the death of the victim as a substantially certain consequence of his conduct
• Whether the murder was committed in aggravating circumstances as defined in section 47(2) and (3) of the Criminal Code
• Whether the accused was guilty of robbery as charged

The accused was found guilty of murder in aggravating circumstances as defined in section 47(2) and (3) of the Criminal Law (Codification and Reform) Act on the first count. On the second count, the accused was found guilty of robbery as charged. The accused was sentenced to 20 years imprisonment.

An accused may be convicted of murder with actual intent where, while pursuing another objective (such as robbery), the accused foresees the death of the victim as a substantially certain or substantially possible consequence of their conduct and proceeds regardless. The application of severe force causing strangulation, fracture of the hyoid bone, and continued constriction of the neck despite the victim gasping for air and collapsing, establishes that the accused foresaw death as a substantially certain result. Where murder is committed in aggravating circumstances as defined in section 47(2) and (3) of the Criminal Code (including during a robbery, involving physical torture, and against a victim over 70 years), the court must impose a sentence of not less than 20 years pursuant to section 47(4)(a), subject to consideration of mitigating factors.

The court expressed concern about the upsurge in cases of violent crimes, particularly robbery and murder, in Zimbabwe. Makonese J observed that human life was needlessly lost in this case - an 82-year-old lady died for a mere R300 and a few items of clothing. The court emphasized the need to protect the sanctity of human life by imposing appropriate sentences in each individual case. The court also noted that while the law permits capital punishment or life imprisonment for murder in aggravating circumstances, a fair and just sentence must strike a balance between societal expectations and the needs of the accused, particularly where the accused is a youthful offender. The sentence imposed should not merely condemn but should give the offender a chance to reform, thus serving rehabilitative purposes while meeting the interests of justice.

This case is significant in Zimbabwean criminal jurisprudence as it illustrates the application of the legal test for murder with actual intent as established in S v Mugwanda, particularly in the context of felony murder (murder committed during the commission of another crime, namely robbery). The case demonstrates that an accused can be convicted of murder with actual intent even where death was not the primary objective, if the accused foresaw death as a substantially certain consequence of their conduct and proceeded regardless. The case also highlights the court's approach to sentencing youthful offenders in cases of murder with aggravating circumstances under section 47(4)(a) of the Criminal Code, balancing the statutory minimum sentence of 20 years with mitigating factors such as youth and rehabilitative potential. The judgment reflects judicial concern about the increase in violent crimes and emphasizes the need to protect the sanctity of human life while maintaining proportionality in sentencing.