The State v Nobert Nsingo and Nkosikhona Mpofu

On 23 June 2013, two accused persons together with three others at large were drinking beer at Ndwangu bottle store at Mbizingwe Business Centre. Two state witnesses (Lancelot Ndlovu and Pilate Dube) were sent to collect money from Mr Nkala. An altercation occurred between the witnesses and the accused persons, resulting in a scuffle. The witnesses lost the money and ran home. They reported the incident to the deceased Solomon Ndlovu (Lancelot's father), who returned with them to the shops to inquire about what had transpired. Upon arrival, the accused persons and their three accomplices attacked the deceased and the two witnesses using a catapult, causing them to flee in different directions. The deceased was chased, caught, and severely assaulted by all five attackers. He was beaten with stones and kicked while lying on the ground, bleeding from his head. The deceased died from his injuries at United Bulawayo Hospitals on 25 June 2013. The post-mortem report indicated the cause of death as head injury, lineal skull fracture, blunt force trauma, and homicide.

• Whether the two accused persons participated in the fatal assault on the deceased
• Whether the testimony of a single witness identifying the accused persons at the assault scene was sufficient for conviction
• Whether lies told by accused persons could serve as corroboration
• Whether the doctrine of common purpose applied to hold both accused persons liable for the murder
• Whether the accused persons had the requisite legal intention (constructive intent) to kill the deceased
• Whether the accused persons should be convicted of murder or culpable homicide

Both accused persons were found guilty of murder with constructive intent and each sentenced to 15 years imprisonment.

1. Under the doctrine of common purpose, when two or more persons associate in a joint unlawful enterprise, each will be responsible for acts of their fellows which fall within the common design, provided: (a) they were at the scene of the crime; (b) they were aware the crime was being committed; (c) they made their intention of common cause clear by some act of association; and (d) they had the requisite intention (actual or legal). 2. Corroboration of single witness testimony is not essential in criminal cases; all that is required is for the court to be satisfied that the witness is credible and reliable. A conviction can be founded on such evidence even without corroboration. 3. Lies told by an accused person can serve as corroboration if: (a) the lie is deliberate; (b) it relates to a material issue; and (c) it is clearly shown to be a lie by evidence other than that of the witness to be corroborated. 4. Murder with constructive intent (legal intention) is established when the accused continues to engage in an activity after foreseeing that there is a real risk that the activity will result in death. The test is whether the only reasonable inference from the facts is that the accused had such foresight, despite any denial. 5. Material discrepancies between an accused's confirmed warned and cautioned statement, defence outline, and evidence in court significantly undermine credibility.

The court noted that a concocted defence story "almost always falls apart," as demonstrated by the inconsistencies in the accused persons' various accounts. The court observed that an innocent person has no reason to lie and simply tells the truth, while the refusal to acknowledge obvious observations (such as noise, injuries, or knowledge of death) can point toward a guilty mind. The court also remarked that section 256(2) of the Criminal Procedure and Evidence Act requires that a confirmed warned and cautioned statement must be admitted by the court as evidence on its mere production by the prosecution without any further proof. While the court addressed the question of whether it was dealing with single witness testimony, it ultimately found this was not strictly necessary given that both state witnesses testified to the accused persons' participation in chasing the deceased and witnesses, making it part of one continuous transaction.

This case is significant in Zimbabwean criminal law for its comprehensive application of the doctrine of common purpose in a murder case involving multiple perpetrators. It clarifies that when multiple persons associate in a joint unlawful enterprise, each is responsible for acts of their fellows that fall within the common design. The judgment demonstrates the application of the requirements for common purpose liability established in Mubaiwa and another v The State 1992 (2) ZLR 362 (SC). The case also illustrates the proper approach to single witness testimony following Sauls and others 1981 (3) SA 172 (A) and its adoption in Zimbabwean jurisprudence, confirming that corroboration is not essential if the court is satisfied the witness is credible and reliable. Additionally, it demonstrates how lies told by accused persons can serve as corroboration under the principles in Katerere v S SC 55/91, provided the lies are deliberate, relate to material issues, and are clearly shown to be false by independent evidence. The judgment also clarifies the distinction between actual and legal (constructive) intention in murder, applying the test that legal intention exists when an accused continues an activity after foreseeing a real risk it will result in death.