The State v Sibongiseni Mpofu

On 17 May 2025, at Christine Ncube's homestead in Chief Mabhikwa, Lupane, the accused called his brother Siyabonga Mpofu and informed him that he had struck the deceased (his father's first wife, aged 72) on the head with an axe before setting her on fire. The brother and an uncle went to the deceased's home and found her bleeding from the head with burns all over her body. The hut showed blood stains, paraffin drops on the floor, and the smell of paraffin. The deceased told the witnesses that the accused had assaulted her and set her alight. She was taken to hospital where she succumbed to her injuries approximately one month later. The accused initially told his brother and father that he had gone to the deceased's home to ask for cooking oil, struck her with an axe, poured accelerant on her, and set her on fire. At trial, the accused changed his story, claiming the deceased had called him to send him to the grinding mill, that he refused, she made provocative remarks, and he feigned a blow with a log from the fire causing her to lose balance and fall into the fire.

• Whether the accused committed murder as defined in s47(1) of the Criminal Law (Codification and Reform) Act
• Whether the accused's version of events was credible and raised a reasonable doubt
• Whether the deceased's statement to witnesses constituted an admissible dying declaration under s254(1) of the Criminal Procedure and Evidence Act
• Whether there was causation linking the accused's conduct to the deceased's death
• Whether there were any defences available to the accused including provocation
• The appropriate sentence given the accused's youthfulness and the aggravating circumstances

The accused was convicted of murder as defined in s47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 16 years imprisonment.

A dying declaration under s254(1) of the Criminal Procedure and Evidence Act is admissible when: (1) the declarant is dead at trial; (2) the trial is for the murder or culpable homicide of that person; (3) the statement relates to the cause of death; (4) the declarant was dangerously ill and without hope of recovery when making the statement; and (5) the declarant would have been a competent witness. Death need not occur immediately after the statement is made. Murder is proven when the accused either actually intended to cause death or realized the real possibility that their conduct might cause death but continued nonetheless. An accused's spontaneous admissions made immediately after the incident, before having time to scheme or fabricate a defence, carry significant evidentiary weight. When an accused's trial version contradicts their earlier spontaneous statements and is shown to be both improbable and false, it provides no reasonable doubt even though the accused bears no onus to prove innocence. A victim being over 70 years of age is a statutory aggravating factor in murder sentencing.

The court observed that youthfulness (age 20) brings with it immaturity and thoughtlessness, warranting some measure of leniency in sentencing, citing S v Zaranyika & Ors 1995 (1) ZLR 270 (H). The court noted that the accused would live with the stigma of being labelled a murderer for the rest of his life and that killing his stepmother would likely haunt him. The court emphasized that it is taboo in Zimbabwean culture for a child to assault their parent, and cultural norms frown upon children who abuse or kill their parents. The court reiterated that courts have repeatedly urged society to respect the sanctity of life, which ought not to be taken away by another human being. The court noted it would not approach sentencing with a vengeful attitude, citing S v Ndlovu HB 14-96, and emphasized the need to be humane while ensuring the sentence is just and fair, citing S v Rabie 1975 (4) SA 865 A. The court observed that the psychological impact on the deceased's husband of 50 years and the accused's brother (who cried during testimony requiring an adjournment) demonstrated the devastating effect of the crime on the family.

This case demonstrates the Zimbabwean High Court's application of the dying declaration exception to hearsay evidence in murder trials, clarifying that death need not occur immediately for a statement to qualify as a dying declaration under s254(1) of the Criminal Procedure and Evidence Act. The case illustrates how courts assess credibility when an accused provides inconsistent versions of events, particularly when the initial version (given spontaneously before scheming) contradicts the trial version. The judgment also exemplifies the sentencing approach for youthful offenders convicted of murder, balancing the leniency afforded to youth and immaturity against aggravating factors including the victim's advanced age (a statutory aggravating factor when over 70), cruel manner of killing, and violation of cultural norms. The case reinforces the principle that belief in witchcraft does not constitute a defence to murder in Zimbabwean law.