The State v Tungamirai Madzokere and 28 Others

On 29 May 2011, members of the MDC-T political party gathered at Glenview 4 Shopping Centre to celebrate "T-Shirt Visibility Day." Police, led by Inspector Petros Mutedza, were dispatched to disperse the gathering as it was considered unlawful for non-compliance with security regulations. The police initially succeeded in dispersing the group at Glenview 4, but the group relocated to Glenview 3 Shopping Centre. When police followed to disperse them again, they met with violent resistance. The crowd attacked the police with stones, resulting in the death of Inspector Mutedza. Twenty-nine accused persons, alleged to be MDC-T members or supporters, were charged with murder (alternatively or concurrently with public violence) on the basis of common purpose.

• Whether the State established a prima facie case against each accused person at the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act
• Whether liability for murder could be established on the basis of the common purpose doctrine as codified in s 188 of the Criminal Law (Codification and Reform) Act
• What level of association or participation with a group committing a crime is required to establish liability under the common purpose doctrine
• Whether evidence from undisclosed police informers (hearsay) could be relied upon to establish a prima facie case
• Whether defences of alibi raised by various accused persons were adequately investigated and rebutted by the State

Seven accused persons (Tungamirai Madzokere, Yvonne Musarurwa, Last Mayengehama, Lazarus Mayengehama, Pheneas Nhatarikwa, Edwin Muingiri, and Paul Nganeropa Rukanda) were placed on their defence. Twenty-one accused persons were found not guilty and acquitted at the close of the State case. No verdict was entered for Rebecca Mafukeni (deceased).

At the close of the State case under s 198(3) of the Criminal Procedure and Evidence Act, the test is whether there is evidence upon which a reasonable court acting carefully might convict, not whether guilt is proven beyond reasonable doubt. Under the common purpose doctrine (s 188 of the Criminal Law (Codification and Reform) Act), liability attaches to those who associate themselves with a group pursuing an unlawful purpose where: (a) they actively participate in furtherance of that purpose, or (b) they fail to dissociate themselves from the common unlawful purpose. Once an accused admits presence and association with a group committing a crime, the onus shifts to that accused to prove the association was innocent and that they dissociated themselves from the unlawful conduct. Hearsay evidence from undisclosed police informers, without the informers testifying in court, is inadmissible and cannot establish a prima facie case. The State must adequately investigate and rebut alibis raised by accused persons; failure to do so may result in discharge at the close of the State case.

The court commented that the dictum in S v Bhaiwa regarding striking out prejudicial unproven statements from the State summary was not meant to require striking out every factual statement the State fails to prove, but only those deliberately planted without intention to prove them. The more convenient approach, per Attorney General v Bennett, is to simply regard such evidence as worthless. The court criticized police conduct in arresting Cynthia Manjoro (accused 10) as "bait" to capture her boyfriend when they knew she had no involvement, describing this as "unprofessional and smacking of high handedness." The court also noted that "a real man does not flee from danger leaving his woman in trouble that he has created" in reference to the fleeing boyfriend. The court observed that at 44 years of age, one accused was "no longer a youth" though this was not determinative of liability.

This case provides important guidance on the application of the common purpose doctrine in South African/Zimbabwean criminal law, particularly in cases of political violence involving large groups. It clarifies that: (1) mere presence at a scene or political affiliation is insufficient to establish liability—there must be evidence of active participation, encouragement, or failure to dissociate from the common unlawful purpose; (2) hearsay evidence from undisclosed informers cannot establish a prima facie case; (3) the State bears the burden of investigating and rebutting alibis before trial proceeds; (4) each accused in a group prosecution must be individually assessed; and (5) the threshold at closure of the State case is whether a reasonable court might convict, not whether conviction is certain. The case demonstrates judicial independence in a politically charged context and reinforces procedural protections for accused persons.