The State v Preacher Ngwenya and Velile Lengelani Mpofu

On 10 July 2017 at Insuza, two accused persons (both commuter omnibus conductors) and the deceased Thulani Ncube (also a commuter omnibus conductor) were involved in a dispute arising from rival minibus crews regarding customers and route encroachment. Earlier in the day, a misunderstanding occurred at Insuza Business Centre. Later, when the accused persons found the deceased's vehicle parked by the roadside, they disembarked from their vehicle in a combative mood, despite their driver's pleas. The first accused armed himself with a knife and the second accused with an iron rod. They accosted the deceased at a fireplace. The first accused struck the deceased twice with a log from the fire. When the deceased fled, the second accused pursued him and struck him on the back of the head with an iron rod. The deceased fell and died instantly from subarachnoid haemorrhage, depressed skull fracture, and blunt force trauma resulting from the assault.

• Whether the first accused could be held liable as a co-perpetrator for the murder committed by the second accused under the doctrine of common purpose
• Whether both accused persons had the requisite legal intention for murder
• What form of intent was present (direct or constructive)
• Whether defences of self-defence or provocation were available to the accused persons

Both accused persons were found guilty of murder with constructive intent and each sentenced to 15 years imprisonment. The court considered mitigating factors including that both were first offenders, family men and breadwinners, the first accused had consumed alcohol, and the second accused attempted first aid and prayed for the deceased. However, aggravating factors included that they were aggressors who armed themselves, the deceased was non-violent and fleeing, and the loss of life was over a petty dispute that had already subsided.

An accused person who participates in prior violent conduct with a co-accused, arms themselves or is aware of weapons being carried, and engages in an unprovoked assault on a victim who subsequently flees and is killed by the co-accused, can be held equally liable as a co-perpetrator for murder under the doctrine of common purpose in terms of Section 196A of the Criminal Law Code and Reform Act [Chapter 9:23]. Where accused persons act recklessly by using weapons capable of causing death against a fleeing, non-threatening victim, and must have foreseen death as a real possibility from the nature of the weapons used and the manner of assault, they are guilty of murder with constructive intent.

The court observed that the dispute between the commuter omnibus crews was petty and had subsided by the time the accused persons accosted the deceased's group. The court expressed that it "frowns at the loss of life over petty disputes." The court also noted that both accused persons were youthful and that immaturity must have played a role in their conduct on the day in question. The court acknowledged some positive conduct by the second accused in attempting first aid and praying for the deceased after realizing the severity of the situation, though this was insufficient to avoid conviction.

This case demonstrates the application of Section 196A of the Criminal Law Code and Reform Act [Chapter 9:23] as amended by the General Laws Amendment Act No. 3 of 2016 regarding common purpose liability in murder cases. It establishes that an accused person can be held equally liable as a co-perpetrator even if they did not deliver the fatal blow, provided their conduct falls within the scope of participatory conduct. The case also illustrates the court's approach to constructive intent in murder cases where accused persons act recklessly with foresight of death as a real possibility. Additionally, it reflects the judiciary's strong stance against loss of life arising from petty disputes, particularly in the context of commuter omnibus crew rivalries.