The State v Prayer Mpofu and Gamelihle Ndlovu

On 27 May 2025, the two accused and one Edwell Mpofu (still at large) had a misunderstanding with the deceased who had accused them of stealing his goats. Around 2100 hours (9pm), accused 1 and accused 2 went to the deceased's home and force-marched him to Edwell's home. At Edwell's home, all three took turns assaulting the deceased with various weapons including a sjambok, knobkerrie, and knife. Accused 2 assaulted the deceased twice on the stomach with a knobkerrie when he tried to escape. Edwell stabbed the deceased twice on the head with a knife. The deceased eventually lay motionless. The following day, accused 1 returned to Edwell's home and assisted in burying the body in a shallow grave and setting it on fire. Accused 2 fled to Bulawayo after confiding in one Sibusisiwe about what had happened. The postmortem report revealed blunt abdominal trauma with intestines protruding, signs of black smoke inhalation in the trachea and lungs, and that the body was burnt and covered in mud. Both accused were aged 26 and 31, first offenders with minor children, and contributed 6 head of cattle as compensation to the deceased's family.

• Whether the accused's warned and cautioned statements (confessions) were corroborated and admissible
• Whether the defence of compulsion under section 243 of the Criminal Law (Codification and Reform) Act was established
• Whether the doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act applied to hold both accused liable as co-perpetrators
• Whether the accused had the requisite mens rea for murder

Both accused were found guilty of murder as charged under section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Accused 1 (Prayer Mpofu) was sentenced to 20 years' imprisonment. Accused 2 (Gamelihle Ndlovu) was sentenced to 20 years' imprisonment. The court applied the presumptive penalty of 20 years and found no reason to deviate below that sentence given the aggravating factors.

The binding legal principles established are: (1) Under section 196A of the Criminal Law (Codification and Reform) Act, where two or more persons act in association to commit a crime and each has the requisite mens rea (whether intention, knowledge, or realization of real risk), they may be convicted as co-perpetrators regardless of who actually inflicted the fatal blow. (2) For confessions to be admissible and reliable, there must be evidence outside the confession showing it is true and corroborated by other ascertained facts. (3) The defence of compulsion under section 243 requires proof of: (a) a threat of death, serious bodily injury or financial loss; (b) reasonable belief the threat was imminent or had begun; (c) the threat was not brought about by the accused's own fault; (d) reasonable belief that escape was impossible and the conduct was necessary; and (e) no more harm was done than reasonably necessary. All requirements must be met. (4) Voluntary participation in an assault, failure to dissociate oneself from the criminal enterprise, and continuing involvement despite awareness of the risk of death establishes liability for murder under common purpose. (5) The presence of black smoke inhalation in the trachea and lungs can indicate the victim was still alive when burnt, as dead bodies do not breathe.

The court made several non-binding observations: (1) The court remarked on the callousness of the accused in possibly burning and burying the deceased while he was still alive, as evidenced by black smoke inhalation - "A dead body does not breathe for it to inhale black smoke." (2) The court observed that the use of darkness to cover the crime suggested premeditation - going to the deceased's home late at night "when no one was still up and about to see what was happening" indicated they knew what was going to happen. (3) The court commented that Edwell conveniently became "the fall guy" because he was yet to be accounted for, suggesting the accused fabricated their defence by shifting blame. (4) The court described accused 1's explanation that he had "lost power" all day after learning of the death but miraculously regained strength to bury and burn the body as inherently implausible. (5) The court expressed that the sustained assault by three people on one helpless individual demonstrated they appreciated a life could be lost "but were not concerned." (6) The court noted the "callousness" and complete disregard for bodily integrity shown by the accused was "to be deplored."

This case is significant in Zimbabwean criminal law jurisprudence for its application of the doctrine of common purpose under section 196A of the Criminal Law (Codification and Reform) Act. It demonstrates how co-perpetrators can be held equally liable for murder even when the actual perpetrator of the fatal blow cannot be identified, provided each accused had the requisite mens rea (intention, knowledge, or realization of real risk). The case also provides important guidance on: (1) the corroboration of confessions through forensic and physical evidence; (2) the stringent requirements for establishing the defence of compulsion under section 243; and (3) the evidential weight of warned and cautioned statements when corroborated by objective evidence. The judgment reinforces that passive presence and failure to dissociate oneself from criminal conduct can establish liability under common purpose.