The State v Tinashe Chikosha and Walter Nenyere

On 28 September 2013 at approximately 7pm at Agrifoods Bus Stop in Mbare, Harare, the deceased Kenneth Chakauya and his girlfriend Jane Ndaneta were waiting for transport. The two accused persons approached them, falsely claiming to be police officers and demanding they accompany them to the police station. The second accused snatched Jane Ndaneta's mobile phone and fled. When the first accused attempted to stab Jane Ndaneta with an okapi knife, the deceased intervened and was himself stabbed in the right arm. The slash-cut wound was 23 centimeters long, severing vasculature and nerves, causing hemorrhage and shock from which the deceased died within minutes. Members of the public apprehended the first accused, recovering the bloodstained okapi knife and the deceased's two mobile phones from him. The second accused was later arrested in Epworth, and Jane Ndaneta's stolen phone was recovered. Both accused had previously been convicted of robbery in the Magistrates Court in connection with this incident.

• Whether the first accused stabbed the deceased with the okapi knife
• Whether the second accused was acting in common purpose with the first accused in the commission of murder
• Whether murder was a reasonably foreseeable consequence of the agreed robbery
• Whether the second accused's flight from the scene constituted withdrawal from the common design
• Whether the accused persons had the requisite mens rea for murder under section 47(1) of the Criminal Law (Codification and Reform) Act

Both accused persons were found guilty of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Where two or more persons agree to commit robbery and actively associate in that joint unlawful enterprise, each is criminally liable for murder if one of them kills the victim during the robbery, provided the other participant(s) foresaw the possibility that death could result from their criminal conduct. The common purpose doctrine imputes the conduct of the person who inflicted the fatal blow to all participants in the common design. For consequence crimes arising from robbery, it is sufficient that the accused foresaw the possibility (not certainty) of death occurring. Running away from the scene while the common criminal purpose is being executed does not constitute withdrawal from the design. Murder committed during a robbery where the accused intended to kill or foresaw the possibility of death and continued with the conduct constitutes murder under section 47(1)(a) of the Criminal Law (Codification and Reform) Act.

The court made observations about the credibility of witnesses, noting that Jane Ndaneta had no motive to lie as the accused persons were unknown to her prior to the incident. The court also commented on the first accused's lack of credibility, noting he lied about material facts and contradicted himself during cross-examination, particularly regarding his alleged relationship with Jane Ndaneta whom he later described as merely "a prostitute who went around the beerhalls and bars dancing." The court noted the implausibility of the second accused's version that he agreed to commit robbery with someone he had known for only a few minutes without discussing how they would overpower the victims. The court also noted approvingly the extension of the common purpose doctrine in S v Nhlapo to situations where victims are killed by shots fired by their own colleagues during a robbery attempt.

This case is significant in Zimbabwean criminal jurisprudence for its comprehensive application of the common purpose doctrine in the context of murder arising from robbery. It reinforces the principle that where co-accused agree to commit robbery (a crime involving violence), each participant is criminally liable for murder if death results as a reasonably foreseeable consequence, even if only one accused inflicted the fatal blow. The case demonstrates that merely fleeing the scene does not constitute withdrawal from a common criminal design. It also affirms that the common purpose doctrine applies to consequence crimes and that foresight of the possibility (not certainty) of death is sufficient to establish the requisite mens rea. The judgment provides a clear application of South African precedents (S v Nhlapo, S v Madlala, S v Thebus) as adopted in Zimbabwean law (S v Chauke, S v Mubaiwa, S v Beaham).