The State v Richard Makuchete

On 10 May 2014, in rural Masvingo under Chief Chikwanda, Richard Makuchete (accused, aged 25) and his two brothers Bernard (21) and Rabson (23) were drinking traditional beer. A fight erupted when Bernard accused Edward Zvinowanda of having assaulted him previously and provoked a brawl. The deceased, Zvinowanda Zvinowanda (44), the accused's cousin, intervened to quell the fight. Bernard then accused the deceased of having destroyed his first marriage by taking his wife and causing continuous misfortunes. Later that evening around 19:00 hours, after the deceased and Edward walked their cousin Munyori home, the three Makuchete brothers confronted them near their homestead. All three brothers were armed with knobkerries and the accused also had a metal slasher. The accused struck Edward on the head with a knobkerrie which snapped, then struck him between the eyes with the slasher. The accused then turned on the deceased and together with his brothers assaulted him with knobkerries and the slasher for about 10 minutes until he went limp. The deceased died with one hand still in his trouser pocket. The accused and his brothers fled but were apprehended four days later. Medical examination revealed the cause of death was head injury with deep cuts on the forehead and bruises on the chest.

• Whether the accused was guilty of murder with actual intent
• Whether the accused's warned and cautioned statement was properly recorded and confirmed
• Whether the murder was committed in aggravating circumstances warranting death penalty or life imprisonment under s 47 of the Criminal Law (Codification and Reform) Act as amended by General Laws Amendment Act No. 2 of 2016
• Whether intoxication and youthfulness mitigated the accused's culpability
• Whether the sentence should run concurrently with a previous conviction for attempted murder

The accused Richard Makuchete was found guilty of murder with actual intent and sentenced to 25 years imprisonment. The court took into account the accused's previous seven-year sentence for attempted murder (relating to the assault on Edward) as a mitigating factor rather than ordering concurrent sentences.

A conviction for murder with actual intent requires proof beyond reasonable doubt that the accused intended to kill the deceased. An accused's version that contradicts their own warned and cautioned statement and defence outline, is incoherent and contradictory, and lacks rational explanation, may be rejected in favour of credible and corroborative State evidence. While premeditation may constitute an aggravating circumstance under s 47 of the Criminal Law (Codification and Reform) Act as amended, a murder arising from a single criminal episode driven by alcohol-induced lack of self-control and youthfulness does not necessarily constitute murder in aggravating circumstances warranting death penalty or life imprisonment. A previous conviction for a related offence may be considered as a mitigating factor in sentencing rather than grounds for concurrent sentences where the offences arise from the same incident but constitute separate crimes.

The court noted that in traditional African culture, the relationship between first cousins is closer than the English term "cousin" suggests, describing the accused and deceased as "brothers by blood." The court observed that fighting over an incident more than a decade old was irrational, suggesting the influence of alcohol. The court commented that it would have been irregular to order the sentence to run concurrently with the previous attempted murder conviction "for a number of reasons" without elaborating on those reasons. The court expressed that the accused's pursuit of the deceased's wife after the murder indicated continuing violent intent. Reference was made to S v Mudenda (HB 66-15) where a 30-year sentence was imposed for a jealousy-motivated killing, indicating the court considered a similar sentence appropriate but reduced it to 25 years considering mitigating factors.

This Zimbabwean High Court judgment demonstrates the application of the Criminal Law (Codification and Reform) Act as amended by the General Laws Amendment Act No. 2 of 2016, particularly regarding aggravating circumstances in murder cases. The case illustrates judicial discretion in distinguishing between premeditated murder and murder arising from a single criminal episode driven by intoxication and impaired judgment. It also clarifies that while a court may consider previous convictions as mitigation, ordering concurrent sentences for separate criminal incidents is irregular. The judgment emphasizes the importance of credible eyewitness testimony and the significance of contradictions between an accused's testimony and prior statements (warned and cautioned statements and defence outlines) in assessing credibility.