The State v Power Mpaso

The accused, Power Mpaso, was charged with the murder of his uncle's wife, 54-year-old Spiwe Masadza, who he had been working for for about three months. On 10 November 2018, while returning from a garden in Mhokore extension, Chief Bushu area in Shamva, the accused tripped the deceased and struck her several times with a stone on the head in the presence of a young boy, Stallon Jacob. The deceased sustained severe head injuries and bled profusely. Stallon rushed to alert villagers, including Aleck Zuze and Washington Masadza. The deceased was found unconscious in a pool of blood and was rushed to Shamva hospital in an ox-drawn cart where she later died from the head injuries. The post-mortem report revealed multiple injuries including a swollen forehead, blood from nostrils, wounds on both temples, haematomas, and a fractured frontal skull. The cause of death was recorded as left subdural haematoma, blunt force head trauma, and assault. The accused made a confirmed warned and cautioned statement admitting to having struck the deceased six times on the head.

• Whether the accused had the actual intention to kill the deceased
• Whether the accused's defence of being possessed by a spirit at the time of the attack negated criminal liability
• Whether the warned and cautioned statement was made freely and voluntarily
• What constitutes appropriate sentencing for murder with actual intent under section 47 of the Criminal Law (Codification and Reform) Act

The accused was found guilty of murder in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 35 years imprisonment.

The binding legal principles established are: (1) Intention to kill can be inferred from objective circumstances including the repeated nature of an attack, the vital body part targeted, the weapon used, and the degree of harm inflicted, applying the subjective test under section 13(1) of the Criminal Law (Codification and Reform) Act. (2) Intention to kill need not be premeditated over a lengthy period but can be formed instantaneously. (3) Motive is irrelevant to criminal liability under section 13(2) of the Criminal Law (Codification and Reform) Act unless expressly provided for in legislation. (4) Where the aggravating circumstances outlined in section 47(2) and (3) of the Criminal Law (Codification and Reform) Act are not present, a determinate sentence of imprisonment rather than life imprisonment may be appropriate for murder with actual intent under section 47(4). (5) Persistent lies by an accused during trial are inconsistent with remorseful behavior and cannot be considered as saving the court's time for mitigation purposes.

The court made non-binding observations that: (1) Malingering is uncommon among prisoners if they think they can get away with it, citing S v Nyamukondiwa HH541/18. (2) It is ultimately very difficult to determine a person's motive for a given act, and motive is unrelated to the degree a person has harmed society. (3) Courts are enjoined to uphold the sanctity of life, and any crime which cheapens the value of human life and dignity of the person will invoke the full force of the law, citing State v Shoriwa HH576/16. (4) The court referenced the constitutional decision in Makoni v Commissioner of Prisons and Anor CCZ 8/16 regarding the interpretation of life imprisonment sentences, though this was not directly applicable to the case given the court's decision to impose a determinate sentence.

This case reinforces important principles in Zimbabwean criminal law regarding the inference of intention to kill from objective circumstances where an accused provides an unbelievable version of events. It clarifies the application of the subjective test for intention under section 13(1) of the Criminal Law (Codification and Reform) Act, demonstrating how intention can be inferred from the nature of the attack, weapon used, body part targeted, and degree of harm inflicted. The judgment also emphasizes that motive is irrelevant to criminal liability under section 13(2) unless expressly provided for in legislation. The case further provides guidance on appropriate sentencing for murder with actual intent where the aggravating circumstances listed in section 47(2) and (3) are not present, confirming that a determinate sentence rather than life imprisonment may be appropriate in such cases. It upholds the principle that courts must protect the sanctity of life and that persistent lying by an accused negates claims of remorse and cannot be considered as saving the court's time for mitigation purposes.