The State v Talent Bweronofa

On 8 May 2018, at Wanderer Mine in Shurugwi, the deceased Hardlife Delight Javangwe and Pasca Mlambo arrived at an underground mining tunnel where the accused and other artisanal miners were working. The deceased and Mlambo were carrying beer and the deceased appeared very drunk. A dispute arose between the accused and deceased about who had the right to mine at that point in time. The deceased poured beer on the accused and insulted him about his mother. The accused became angry and slapped the deceased several times with open hands on the face. The accused then picked up a chisel intending to assault the deceased but was disarmed by James Banya. The accused then picked up a stone and threw it toward the deceased. The deceased left, saying he was going to collect his mining syndicate members. He was accompanied by Pasca Mlambo. Shortly thereafter, the deceased's body was found 150 meters down a mine shaft. It was dark in the tunnel and miners were using head torches. The deceased had no torch. A post-mortem report showed the cause of death as severe subarachnoid haemorrhage, skull fractures, and head injury in unclear circumstances.

• Whether the accused's conduct caused or substantially contributed to the death of the deceased
• Whether the accused had the requisite mens rea for murder
• Whether the accused's conduct constituted factual and legal causation for the death
• Whether assault is a competent verdict on a charge of murder
• What is the appropriate sentence for assault committed under provocation

The accused was found not guilty of murder and found guilty of the lesser crime of assault in terms of section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 3 months imprisonment, wholly suspended for 3 years on condition that he does not within that period commit an offence involving assault or physical violence on another person for which he is sentenced to imprisonment without the option of a fine.

For criminal liability to be established under section 11 of the Criminal Law (Codification and Reform) Act, the accused's conduct must be both the factual cause (but for the conduct, the consequence would not have occurred) and the legal cause (a reasonably foreseeable consequence) of the death. Where there is no evidence that the accused's conduct caused the victim to fall into a mine shaft, and where intervening factors such as the victim's severe intoxication and inability to see in darkness provide a reasonable alternative explanation for the death, the accused cannot be held criminally liable for the death. However, conduct involving slapping, attempting to strike with a weapon, and throwing stones at another person constitutes assault. A conviction for assault is a competent verdict on a charge of murder under section 274 of the Criminal Law (Codification and Reform) Act.

The court observed that violence among artisanal miners is on the increase and courts must pass sentences that demonstrate such violence is unacceptable and must stop. The court also noted that in Zimbabwean society, an insult that mentions one's mother is considered very provocative, though this does not excuse violent responses. The court commented that accused persons should exercise restraint even when provoked, and that trying to 'put down fire by fire' is unacceptable in a civilised society. The court also remarked that there is no duty upon an accused person to give any reason why a state witness might falsely implicate him, citing S v Ipeleng 1993 (2) SACR 185 (T).

This case is significant in Zimbabwean criminal law for its application of the principles of causation in criminal liability, particularly the distinction between factual and legal causation under section 11 of the Criminal Law (Codification and Reform) Act. It demonstrates that conduct which may have temporally preceded a death does not necessarily constitute legal causation if the chain of causation is broken by intervening factors (in this case, the deceased's drunkenness and lack of lighting in the mine). The case also illustrates the court's willingness to consider alternative competent verdicts under section 274 of the Act, and the importance of assessing the credibility of witnesses and accepting a reasonably possibly true version from the accused. The judgment also addresses the growing concern about violence among artisanal miners while balancing this with appropriate sentencing considerations including provocation and pre-trial detention.