The State v Ngqabutho Khoza and Others

On 27 July 2019, nine members of the Zion Christian Church (ZCC) traveled to their church shrine near Beitbridge for an all-night prayer session. Three Zimbabwe National Army soldiers stationed at Beitbridge—Ngqabutho Khoza (1st accused), Emmanuel Kandidzanwa (2nd accused), and Oscar Mutambisi (3rd accused)—were on patrol duty armed with AK-47 rifles. The soldiers suspected the church members of being smugglers. Without proper identification, they confronted the group. The 1st accused fired two shots from his service rifle, with one bullet hitting Jevas Masvina (the deceased) in the back and exiting through the left side of his chest. The deceased died at the scene. The accused claimed they acted in the course of their duties, with the 1st accused alleging he fired a warning shot and that a second shot discharged during a tussle when someone tried to disarm him after he was struck by a stone. Church members testified they heard two gunshots, saw no boxes, and heard the name "Khoza" being called out. The deceased was found lying on his back holding a bible and church staff.

• Whether the 1st accused fired the fatal gunshots that killed the deceased
• Whether the 2nd and 3rd accused were liable for the deceased's death under the doctrine of common purpose
• Whether the accused acted with intention to kill (murder under section 47 of the Criminal Law (Codification and Reform) Act) or negligently (culpable homicide under section 49)
• The application of section 196A of the Code regarding liability of co-perpetrators acting with common purpose
• The appropriate sentence for culpable homicide considering the degree of negligence

All three accused were found not guilty of murder but guilty of culpable homicide in contravention of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each accused was sentenced to 8 years imprisonment, of which 3 years was suspended for 5 years on condition that they do not commit any offence involving violence or negligent killing of another during that period. Effective sentence: 5 years imprisonment for each accused.

For co-perpetrator liability under section 196A of the Criminal Law (Codification and Reform) Act to be established, the State must prove that accused persons acted in association with common purpose and each had the requisite mens rea, whether by intention, knowledge, or realization of risk. Active association can be implied from strategic positioning, shared planning, and coordinated conduct. The conduct of the actual perpetrator is deemed to be the conduct of every co-perpetrator where common purpose is established, even if not all directly contributed to the criminal act. Culpable homicide rather than murder is the appropriate conviction where, despite use of a lethal weapon causing death, the circumstances (darkness, mistaken belief, lack of identification of victims) negate proof of intention to kill beyond reasonable doubt, leaving only negligence. In sentencing for culpable homicide, the degree of negligence must be properly assessed from the circumstances on the ground, not merely from the fatal result. Trained persons in lawful possession of firearms bear heightened responsibility to apply the principle "if in doubt, do not fire" and sentences must reflect both individual circumstances and the need for general deterrence against unlawful use of lethal force.

The court made several non-binding observations: (1) It noted the principle of res ipsa loquitur ("the facts speak for themselves"), commenting that it could not have been coincidence that the surname "Khoza" was called out at the scene when one accused bore that name; (2) The court emphasized that the removal of the death penalty in Zimbabwe reflects appreciation for the sanctity of life as a God-given gift protected by the Constitution; (3) The court expressed that it "frowns at people who remove God given gift of life" and noted the tragic irony that the deceased died "clinging on to his bible and a church stuff"; (4) The court observed that trained soldiers and those legally possessing firearms "must never use them unless if it's a war set up"; (5) The court commented on the gap of six to seven years between the offense and trial, noting the State's characterization of this delay as showing "impunity"; and (6) The court noted that soldiers fall under "a special category of people in society" who are "trained to keep peace and mostly, provide safety of the generality of people," thus bearing heightened responsibility.

This case is significant in Zimbabwean criminal law for several reasons: (1) It clarifies the application of section 196A of the Criminal Law (Codification and Reform) Act regarding co-perpetrator liability and common purpose, particularly where not all participants directly commit the actus reus; (2) It demonstrates judicial willingness to hold state security forces accountable for unlawful use of lethal force, even when acting in the purported course of duty; (3) It illustrates the distinction between murder and culpable homicide where there is mistaken belief and limited visibility, emphasizing that negligent killing (even by trained soldiers) does not automatically constitute murder; (4) The case reinforces the sanctity of the right to life and imposes meaningful custodial sentences for culpable homicide involving firearms to achieve deterrence; (5) It admits res gestae evidence (calling out "Khoza" immediately after the shooting) as an exception to the hearsay rule; and (6) It provides guidance on sentencing for culpable homicide, emphasizing assessment of the degree of negligence and the special responsibility of those trained in firearms use.