The State v Tinashe Ngwerume and Nkulumo Dube

On 23 October 2023 at approximately 10:30 hours at More-Better-Days compound in Christon-Bank, Charles Sanudi (deceased) was fatally stabbed. The first accused (a 15-year-old juvenile) and second accused, together with four others (two of whom absconded trial), were artisanal miners who went to More-Better-Days to confront Tatenda Mapulani. Three days prior, Mapulani had assaulted the second accused with a catapult, injuring his mouth and causing him to lose a tooth. When the group confronted Mapulani, he fled toward a mountain, passing through the deceased's homestead. The deceased, who was unknown to the accused persons, was at his home when he was stabbed in the neck and thigh. He called for help to Josephine Tofirapo, who found him bleeding. He died shortly thereafter. A postmortem examination concluded death was caused by hemorrhagic shock, left femoral vein section, and stab wound. The first accused claimed he was pursuing Mapulani to effect a citizen's arrest and did not stop at the deceased's residence. The second accused claimed he did not pursue Mapulani but remained at the shops approximately 50 meters from the crime scene. No witness saw who actually stabbed the deceased, only that pursuers gathered around him before he cried out for help.

• Whether the State proved beyond reasonable doubt that either accused person murdered the deceased
• Whether either accused was present at the crime scene when the murder was committed
• Whether the doctrine of common purpose as codified in section 196A of the Criminal Law Code applied to hold the accused liable as co-perpetrators
• The reliability of identification evidence in circumstances where the witness did not see the accused's face
• Whether preparatory conduct and association with the actual perpetrator was sufficient to establish liability under common purpose

Both the first accused (Tinashe Ngwerume) and second accused (Nkulumo Dube) were found not guilty of murder and acquitted.

For the doctrine of common purpose (as codified in section 196A of the Criminal Law Code) to apply, the victim must have died in pursuance of the common intent shared by the accused persons. Where the common intent was to exact revenge on a specific target (Tatenda Mapulani), and an unrelated third party (the deceased) was killed by unidentified members of the group, common purpose liability does not automatically attach to all members of the group, particularly those not present at the crime scene when the killing occurred. Identification evidence based solely on recognition of a person's gait while they are running away with their back turned, at a distance of 30 meters with partially obstructed vision, from a witness who had limited prior acquaintance with the accused, is unreliable and insufficient to ground a conviction. The State bears the burden of proving beyond reasonable doubt both the presence of the accused at the crime scene and the requisite mens rea for murder. Where this cannot be established, the doctrine of common purpose cannot be used to bridge evidentiary gaps.

The court made several non-binding observations: (1) It noted the second accused's claim of having a premonition that a murder would occur, questioning whether it would be safe to convict on the basis of such a premonition even if believed. (2) The court observed that had the intended victim (Tatenda Mapulani) been killed instead of the deceased, it could "easily have concluded" that the two accused persons were liable as co-perpetrators. (3) The court noted that no one was clear as to why the deceased was killed, observing that he was not the only person who spoke to Tatenda Mapulani as he fled. (4) The court commented on the State's failure to call witnesses who were present at the bar where the initial confrontation occurred, which could have clarified disputed facts about what transpired when the accused persons first encountered Mapulani. (5) The judgment implicitly criticized the investigation for failing to recover any weapons or to secure testimony from several material witnesses who did not come to court.

This case provides important guidance on the application of Zimbabwe's codified common purpose doctrine under section 196A of the Criminal Law Code. It establishes that for common purpose liability to apply, the victim must have been killed in pursuance of the common intent shared by the accused persons. Where the common intent was directed at a different person (the intended victim who escaped), and an unintended third party is killed by unknown members of the group, common purpose liability may not attach to those who were not present at the actual crime scene. The case also reinforces established principles regarding the careful scrutiny required for identification evidence, particularly where identification is based on limited observations such as gait recognition from a distance while the person is running with their back turned. It demonstrates the high standard of proof required in criminal cases and the courts' unwillingness to convict based on unsafe identification evidence or on speculative application of common purpose principles. While decided under Zimbabwean law, the case may have persuasive value in South African law given the similar approach to common purpose and identification evidence in both jurisdictions.