The State v Ndabezinhle Mpofu and Others

On 16 January 2017, four accused persons planned at Marisha Bar in Bulawayo to commit robbery at SDA Pelandaba Primary School. They were armed with various weapons including a grinder, bolt cutter, knife, crowbar, and a pistol. On 17 January 2017 at approximately 03:00 hours, while breaking into school offices to steal laptops and cash, they were confronted by Burton Sikalonga, a security guard. The deceased shouted "thieves, thieves" and attempted to flee. Accused 1 and 2 chased him down, with accused 1 using a knife to stab him multiple times and accused 2 using a crowbar to assault him, causing multiple fractures. Meanwhile, accused 4 held the other security guard, Vusumuzi Tshuma, at gunpoint and robbed him of his cellphone. Accused 3 tied both guards together with a rope and shoelaces. The accused persons proceeded to ransack the school and church offices, stealing laptops, cash totaling over US$200, and T-shirts. They left the guards tied up on the ground. The deceased was rescued the following morning but died at Mpilo Hospital at 09:50 hours from blunt chest trauma, multiple injuries, and stabbings. The post-mortem report revealed severe injuries including multiple rib fractures, fractured arms, lacerations, and stab wounds. All four accused were arrested and the stolen property was recovered.

• Whether the accused persons acting in common purpose as co-perpetrators caused the death of the deceased
• Whether the accused persons had the requisite mens rea to commit murder
• Whether accused 1 used a knife to stab the deceased
• Whether accused 2 used a crowbar to assault the deceased
• Whether accused 4 intentionally armed himself with a pistol
• Application of the doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act
• Whether the murder was committed in aggravating circumstances as defined in section 47(2)(a)(iii) of the Code

Count One: Accused 1 and 2 found guilty of murder with actual intent; Accused 3 and 4 found guilty of murder with constructive intent. All four accused sentenced to imprisonment for life. Count Two: All accused found not guilty and acquitted.

When multiple accused persons act in common purpose to commit robbery while armed with dangerous weapons, all participants can be convicted of murder if death results from the use of those weapons, even if not all personally inflicted the fatal injuries. Under section 196A of the Criminal Law (Codification and Reform) Act, co-perpetrators who were present at the scene, engaged in preparatory conduct together, and participated in the criminal enterprise as a group are liable for the conduct of the actual perpetrator. Those who personally used dangerous weapons causing death have actual intent to murder. Those who knew dangerous weapons were present and realized their co-perpetrators might use them to kill, yet continued with the unlawful enterprise without dissociating themselves, are guilty of murder with constructive intent. The doctrine of common purpose links the fate and guilt of all participants in a criminal enterprise. A murder committed in the course of a robbery constitutes aggravating circumstances under section 47(2)(a)(iii) of the Criminal Law (Codification and Reform) Act, warranting severe punishment including life imprisonment.

The court observed that the accused persons' moral blameworthiness was very high as they acted out of sheer greed and allowed their love for money to transcend human life. The court emphasized that human life is a precious commodity and a pre-condition to the enjoyment of all other rights, and that courts have a duty to protect the sanctity of human life in homicide cases. Those who kill in order to enjoy ill-gotten property must be visited with the most severe penalties, with deterrence being the major object of punishment in such cases. The court noted the particularly brutal and degrading manner in which the deceased was incapacitated, suggesting he was tortured before death, and that leaving the victims tied up on a rainy night added to the humiliation and cruelty of the crime. The court also commented that accused 4's story about the origin of the firearm was "beyond any doubt false" and that the supposed owner "does not exist at all," highlighting the court's skepticism toward manufactured defenses.

This case is significant in Zimbabwean criminal law as it comprehensively applies the codified doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act. It demonstrates how co-perpetrators can be held liable for murder even when they did not personally inflict fatal injuries, provided they had the requisite mens rea and were associated in the criminal enterprise. The judgment clarifies the distinction between actual intent (for those who personally committed the violent acts) and constructive intent (for accomplices who realized the risk of death but continued with the common purpose). It also illustrates the court's approach to sentencing in cases of murder committed during robbery, emphasizing the sanctity of human life and the need for deterrence. The case reinforces that those who embark on criminal enterprises involving dangerous weapons share liability for foreseeable consequences, including murder, even if they personally withdrew from direct violence.