The State v Tawanda Maphosa and Norbert Maphosa

The two accused, who were step-brothers, were charged with the murder of Manyowa Simango. First accused (Tawanda Maphosa) had lost a child in September 2019 and believed the deceased had caused the child's death through witchcraft. On 8 September 2019, both accused were drinking traditional brew at a fellow villager's home when the deceased arrived and later left. The accused followed her home. According to evidence, first accused picked up a stone and struck the deceased on the head, causing fatal injuries. Her body was discovered by a juvenile relative lying in a pool of blood with a deep wound stretching from the frontal to the occipital region of the head. First accused maintained an alibi that he was at his homestead with Maxwell Haisi. Second accused (Norbert Maphosa) testified that first accused asked him to accompany him to the deceased's home, where he witnessed first accused attack the deceased with a stone, after which he fled in fear and was threatened by first accused not to disclose the incident.

• Whether the first accused was guilty of murder as defined in s 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
• Whether the first accused had the requisite mens rea (actual intent) to kill the deceased
• Whether the alibi defence raised by first accused was credible
• Whether the second accused was a socius criminis (accomplice) or co-perpetrator liable under s 196A of the Criminal Law (Codification and Reform) Act
• Whether common purpose was established between the two accused

First accused (Tawanda Maphosa) was found guilty of murder with actual intent and sentenced to 20 years imprisonment. Second accused (Norbert Maphosa) was found not guilty and acquitted.

A person is not liable as an accomplice (socius criminis) to murder merely by being present at the scene of the crime, even with knowledge that a crime is being committed, unless the state proves that the accused had prior knowledge of the planned crime and aided, abetted, or participated in its execution. Common purpose must be established to hold multiple accused equally liable for murder. Actual intent to kill (dolus directus) can be inferred from the choice of weapon, the manner of attack, the nature and severity of injuries inflicted, and the circumstances surrounding a premeditated revenge killing. An alibi defence will be rejected where the accused's testimony is inconsistent, confused, and contradicted by independent evidence, and where the alibi witness fails to materialize despite opportunities provided.

The court observed that as education levels improve in society, belief in witchcraft should gradually disappear and people should accept death as a natural occurrence that can happen to anyone. The court noted that punishment should fit both the criminal and the crime, be fair to the accused and society, and be blended with mercy, citing S v V 1972 (3) SA 611 (AD). The court commented that death sentences for teenagers should only be imposed where the killing stems from interests of wickedness, and that factors such as youthfulness, psychological immaturity, and obsessive belief in witchcraft should weigh in favor of the accused. The court criticized the brutal, premeditated nature of the killing as reminiscent of medieval atrocities, describing it as a cold-blooded execution rather than merely reckless conduct creating risk of death.

This Zimbabwean case demonstrates the application of principles regarding accomplice liability and common purpose in murder cases. It clarifies that mere presence at a crime scene, even with knowledge of the crime occurring, is insufficient to establish liability as a socius criminis without proof of prior knowledge of the plan, assistance, or participation in the execution of the crime. The case also addresses the relevance of belief in witchcraft as a motive in murder cases, while emphasizing that such beliefs do not justify taking the law into one's hands. The judgment reinforces that revenge killings based on witchcraft beliefs, particularly when premeditated and executed with brutal force against defenseless victims, warrant severe punishment. The case illustrates proper assessment of alibi defences and the weight given to consistent, corroborated testimony.