The State v Talent Nyamombe

On 23 December 2016, Benjamin Chandimhara (the deceased) was found dead in the accused's night club, Gute Bar, at Ziko Dema. The deceased had been drinking at the bar and became involved in altercations with other patrons, during which he damaged bar furniture. When the accused closed the bar early due to the commotion, the deceased remained inside while other patrons were asked to leave. The deceased's body was found with a shoe lace tied around his neck, partially suspended from a burglar bar. The accused claimed the deceased committed suicide after he offered him accommodation in the bar for protection from other patrons he had fought with. The pathologist found the cause of death to be asphyxia, bronchial aspiration and partial hanging, but could not find evidence of self-hanging. Witnesses testified that the accused prevented the deceased from leaving the bar, stating the deceased had previously damaged the accused's PA system without paying and would not get away with damaging furniture this time. The deceased had pleaded to be let go, and witness Nomsa Besa attempted to persuade the accused to release him.

• Whether the accused unlawfully and intentionally caused the death of the deceased
• Whether the death was suicide or homicide
• Whether the accused's defense of suicide was credible
• Whether the accused fabricated his defense
• What would be an appropriate sentence for murder

The accused was found guilty of murder as charged under section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 15 years imprisonment without any portion suspended (as suspension is prohibited by s 358(2) of the Criminal Procedure and Evidence Act for murder convictions).

Where an accused claims suicide but the pathological evidence shows partial hanging without evidence of self-hanging, where credible witnesses testify the accused prevented the deceased from leaving and made threats, where the accused's defense contains fabrications and contradictions, and where the accused had the opportunity and motive (anger over property damage), the court may properly infer that the accused caused the death by choking and hanging the victim. A bar owner who detains an intoxicated patron who damaged property and causes that patron's death by asphyxiation cannot escape liability by fabricating a suicide defense. The taking of human life in response to property damage, even repeat damage, is never justified and warrants a substantial custodial sentence that emphasizes the sanctity of human life.

The court observed that the case was poorly investigated by police, noting that no statements were recorded from the accused's brother or friend who were present, and no fingerprint evidence was collected from the window where the shoe lace was tied. The court noted that proprietors of liquor outlets should bear in mind that their business is fraught with risk of damage to furniture as patron behavior after consuming alcohol is predictably volatile. The court expressed that it was unfortunate and reflected total disregard for the sanctity of human life for defense counsel to suggest the deceased was the aggressor merely because he damaged furniture. The court commented that as a university graduate, the accused would have been expected to know better than to take the law into his own hands when he could have reported the matter to police or instituted a civil claim.

This case emphasizes the sanctity of human life in Zimbabwean criminal law and demonstrates that proprietors of licensed premises cannot take the law into their own hands when dealing with damage caused by intoxicated patrons. The judgment reinforces that resort to violence and self-help will not be tolerated, particularly when it results in loss of life. The case also illustrates the court's approach to fabricated defenses and the weight given to credible witness testimony and expert pathological evidence in determining whether a death was suicide or homicide. It demonstrates that even mitigating factors such as contributing to funeral expenses and supporting the deceased's children cannot outweigh the gravity of unlawfully taking a human life over property damage.