The State v Success Dube

On 1 January 2021 at approximately 0100 hours, the accused and deceased were celebrating New Year's Day at Phokuhle Nyoni's homestead at Dromoland, Inyathi. Earlier that evening, Imanathi Ndlovu had assaulted the deceased with a fist over an issue involving a girl, causing a small cut on the deceased's forehead. Phokuhle Nyoni reconciled the two parties. The accused, who was moderately drunk, interjected and told Imanathi he should have beaten the deceased heavily. At around 0400 hours, after others had retired to bed, the accused together with his co-accused Vusumuzi Moyo and Clement Moyo took the deceased to Mtshoko Dam (approximately 150 metres away) where they assaulted him with an axe and bricks on the head. The deceased died as a result of injuries sustained in the assault. His body was discovered by Livious Ndlovu on the edge of the dam the following day. The accused was arrested and confessed to having attacked the deceased in a confirmed warned and cautioned statement recorded on 9 January 2021.

• Whether the State proved that the accused intended to cause the death of the deceased
• Whether the State proved that the accused foresaw death as a real risk or possibility but continued with his conduct despite that risk
• Whether the accused should be convicted of murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Application of the doctrine of common purpose

The accused was found guilty of murder in terms of section 47(1)(b) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). He was sentenced to 15 years imprisonment, of which 2 years was suspended for 5 years on condition that he is not convicted of an offence involving dishonesty for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 13 years imprisonment.

Murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act is established where: (1) the accused causes the death of another person; (2) the accused realizes there is a real risk or possibility that his conduct may cause death; and (3) the accused continues to engage in that conduct despite the risk or possibility. Under the Criminal Code, it is not necessary to specify whether an accused has been convicted under section 47(1)(a) or (b), as killing with either intention constitutes murder. The doctrine of common purpose applies where multiple persons participate in a violent assault resulting in death - it is immaterial who delivered the fatal blow when all participants were aware of the risk of death and continued with their conduct. Evidence of careful planning, isolation of the victim, use of lethal weapons, and excessive force are relevant factors in determining whether the accused foresaw the real risk or possibility of death.

The court observed that those who needlessly bring about the death of others over trivial cases should expect stiff sentences from the courts. Courts do not condone the use of violence in the resolution of disputes. The court noted that the accused 'fought a battle which was not his' and 'cried more than the bereaved' by involving himself in a dispute that had already been reconciled between the deceased and Imanathi. The court remarked that the accused showed 'inherent wickedness' and sought to mislead the court by fabricating a defence of coercion. The court emphasized that sentences must serve the ends of justice, must not be so harsh as to break the offender, must not trivialize the offence, but must be equitable. For youthful offenders, sentences should have a rehabilitative effect. The right to life is constitutionally protected and no one is entitled to take that right away.

This case demonstrates the application of section 47(1)(b) of the Criminal Law (Codification and Reform) Act in Zimbabwean criminal law, which provides for murder where the accused realizes there is a real risk or possibility that his conduct may cause death but continues despite that risk. The case illustrates that under the Criminal Code, it is no longer necessary to distinguish between actual and constructive intent as was required under common law. The judgment also demonstrates the application of the doctrine of common purpose in cases involving multiple assailants, holding that it is immaterial which participant delivered the fatal blow when all were willing participants in a joint criminal enterprise. The case reinforces the principle that courts will impose deterrent sentences for violent crimes and will not tolerate vigilante justice or violence in dispute resolution.