The State v Prosper Bhebhe

On 14 October 2019, the body of 21-year-old Aleck Mavhiya was discovered near Ntsukamini tuckshop in Khongwane village, Silobela. He had been viciously assaulted by Prosper Bhebhe (the accused) acting in common purpose with three accomplices - Mtokozisi Nyoni, Mpatisi Nyoni and Shepherd Nyoni (all fugitives). The deceased was attacked with sticks, stabbed with a knife on the forehead and thigh, and struck with an axe on the hip. The assault occurred outside the accused's tuckshop. Multiple witnesses saw the accused at the scene holding an axe, throwing stones at the deceased and at those trying to help, and discouraging bystanders from interfering. The accused told one witness to "stay out of it". Blood spatters were found on the walls of the accused's shop. Post-mortem revealed the cause of death was subarachnoid haemorrhage, brain contusion and head trauma. The accused denied participation, claiming he only collected his axe after the assault to secure his tools. At trial, he was 49 years old, a businessman with seven children, and a first offender.

• Whether the accused participated in the murder of the deceased despite not being seen directly striking him
• Whether the doctrine of common purpose applied to make the accused liable as a co-perpetrator under section 196A of the Criminal Law (Codification and Reform) Act
• Whether the accused had the requisite mens rea for murder
• Whether the murder was committed in aggravating circumstances
• Whether the mandatory minimum sentence of 20 years imprisonment should be imposed

The accused Prosper Bhebhe was found guilty of murder in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to twenty (20) years imprisonment.

Under section 196A of the Criminal Law (Codification and Reform) Act, a person can be convicted as a co-perpetrator of murder even without directly inflicting the fatal blow, provided the State proves: (1) the accused was present at or in the immediate vicinity of the crime scene in circumstances which directly or indirectly implicate them in the commission of the crime (s196A(2)(a)); and (2) the accused had the requisite mens rea, namely intention, knowledge, or realisation of a real risk or possibility that the crime would be committed (s196A(1)). Presence at a violent crime scene with a weapon, coupled with conduct discouraging intervention and encouraging the assault, is sufficient to establish common purpose liability. The conduct of the actual perpetrator is deemed to be the conduct of every co-perpetrator. For sentencing purposes, murder is committed in aggravating circumstances under s47(4)(a) when weapons are used, gratuitous violence is employed, or it constitutes a gang murder, even if the specific factors in s47(2) and (3) are not present, as s47(5) and the Criminal Procedure (Sentencing Guidelines) Regulations 2023 extend the list of aggravating factors. Once aggravating circumstances are found, the mandatory minimum sentence of 20 years imprisonment applies unless exceptional circumstances justify departure.

The court noted that witness Barton Mutembu could be forgiven for the quality of his evidence given he was "between a rock and a hard place" as the accused was his father-in-law. The court observed he had reason to be "economical with the truth" but nevertheless accepted his core testimony about seeing the accused with an axe. The court also made general observations about the brutality of the attack, describing it as "akin to a scene out of a horror movie" and stating the offender "usurped God's role" in taking life. The court commented that the offender exhibited "a good measure of impunity" and lack of remorse during testimony. The court noted that the victim impact statement from the deceased's brother called for 50 years imprisonment but was authored in the past tense, making its current relevance unclear. The court observed that given the offender's age (49), he would emerge from prison "in the afternoon of his life" after serving 20 years.

This case is significant in Zimbabwean criminal law for its detailed application of section 196A of the Criminal Law (Codification and Reform) Act concerning the liability of co-perpetrators. It demonstrates how the common law doctrine of common purpose has been codified in Zimbabwe and clarifies that: (1) the State need not prove all three factors in s196A(2) simultaneously - proof of one or more suffices; (2) direct participation in the fatal act is not required if presence at the scene in implicating circumstances is established; (3) conduct such as discouraging intervention, throwing stones, and hovering with a weapon can constitute sufficient association with a common criminal purpose; (4) the factors in s47(2) and (3) are not exhaustive of aggravating circumstances for murder - s47(5) allows courts to find additional factors; (5) use of weapons, gratuitous violence, and gang murder are aggravating circumstances under the 2023 Sentencing Guidelines Regulations. The judgment provides comprehensive guidance on assessing co-perpetrator liability and determining appropriate sentences for murder in aggravating circumstances.