The State v Tonderai Makuwaza

On 18 October 2011, the accused, then aged 21 years, was charged with murdering his 73-year-old grandmother, Jesman Chikande, at Chikande Homestead, Muranda Village, Chief Zimunya, Mutare, Zimbabwe. The deceased lived alone. On 19 October 2011, her body was discovered by her daughter-in-law, Esther Makiwa, with extensive injuries, blood stains, and a head wound. A post-mortem revealed the cause of death as cervical spine fracture due to assault, with gross bruising and nasal bleeding. The accused was arrested in January 2012 on stock theft allegations. During transport to the police post, he confessed to the murder, implicating three accomplices: Masimba Matanga, Tengurayi Kapangwa, and Moment Machigomora. He stated they killed the deceased for ritual purposes to collect blood, breast fluid, and pubic hair for a businessman who promised payment. On 14 January 2012, the accused made a detailed extra-curial statement under warn and caution, and on 15 January 2012, he conducted police to the scene and made indications. The accused had also confessed to his brother-in-law, Bernard Mukandi, three weeks after the murder. At trial, the accused denied the charges, claiming his confessions were obtained through assault and intimidation, though he conceded some information in his statement was accurate.

• Whether the accused's confession was made freely and voluntarily without undue influence
• Whether the accused's confession and indications were admissible in evidence
• Whether the accused was criminally liable for the death of the deceased
• Whether the accused was guilty of murder with actual intent or constructive intent

The accused was found guilty of murder with actual intent in contravention of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 20 years imprisonment. The court considered as mitigation that the accused was 21 years old at the time of the offence (a youthful offender) and that nine years had elapsed since the commission of the offence. Aggravating factors included that the murder was ritually motivated for financial gain, which society abhors. The court noted the accused was fortunate to avoid the death penalty due to his youth.

The binding legal principles established are: (1) A confession is admissible if proved to be made freely and voluntarily without undue influence; extensive detail and coherence in a confession, particularly regarding facts only the perpetrator would know, demonstrates genuineness even if police questioned the accused, provided the actual words were not placed in the accused's mouth. (2) Pointing out at a crime scene is an act proving the accused's knowledge of facts relating to the crime and is admissible evidence independent of oral confessions. (3) Under the doctrine of common purpose, each participant is judged on their own mens rea, and criminal responsibility is founded on acts associating the accused with the common purpose to kill, not necessarily acts causally linked to death. (4) Actual intent to kill is established where the accused knew death was a necessary and inevitable consequence of their planned actions, particularly in ritual murders where materials could only be collected post-mortem. (5) The actus reus combined with knowledge of inevitable fatal consequences demonstrates a decision to bring about the offense regardless of whether the accused desired the consequence.

The court made several non-binding observations: (1) Society abhors ritually motivated murders actuated by desire for wealth, and business people must be discouraged from using evil beliefs that human blood leads to riches. (2) The accused was fortunate to avoid the death penalty solely due to being 21 years old at the time of the offense, suggesting that but for his youth, capital punishment would have been appropriate in the circumstances. (3) The court noted sympathetically that the lengthy delay (nine years between offense and trial) meant that if tried earlier, the accused would have already served a substantial portion of his sentence. (4) Minor contradictions in witness testimony (such as Joseph Mukwawaya's evolving account) may result from passage of time and do not necessarily undermine the State's case when the primary evidence rests on confirmed confessions rather than witness statements.

This case is significant in Zimbabwean criminal law (and relevant to South African jurisprudence given the similar legal systems) for several reasons: (1) It comprehensively applies the principles governing admissibility of confessions under section 256 of the Criminal Procedure and Evidence Act, emphasizing that detailed, coherent confessions containing facts only known to perpetrators demonstrate genuineness. (2) It reaffirms the evidentiary value of pointing out and indications at crime scenes as proof of knowledge per S v Mbambo. (3) It applies the doctrine of common purpose in murder cases, holding that participants who associate themselves with the common purpose are liable even without directly causing death. (4) It addresses ritual murders motivated by financial gain, condemning such practices and affirming severe sentences. (5) It demonstrates how courts balance aggravating factors (ritualistic murder for profit) with mitigating factors (youth and delay in prosecution) in sentencing for capital offenses.