The State v Wellington Gurumombe

The accused was charged with the murder of Apronia Tenga on 27 January 2020. The State alleged that the accused caused the deceased's death by kicking and hitting her several times on the stomach with intent to kill or realizing the real risk of death. The deceased was heavily pregnant at the time. She allegedly reported to police officer Shuvai Machimbidza at Kilo Police base that she had been assaulted by her husband (the accused) after she found him with his paramour. The deceased stated she had been kicked on the stomach with booted feet and hit with clenched fists. The accused's brother, Washington Gurumombe, was contacted to assist the deceased seek medical attention, but the accused went instead. The deceased was taken home and died the next day. A post-mortem examination revealed the cause of death as acute anaemia, uterine rupture and severe abdominal trauma. The accused denied assaulting the deceased at any time.

• Whether the prosecution had proven the essential elements of murder
• Whether the statement made by the deceased to the police officer was admissible as a dying declaration under section 254(1) of the Criminal Procedure and Evidence Act
• Whether the common law exception of dying declarations remains applicable in Zimbabwe given legislative changes in England
• Whether the accused should be discharged at the close of the State case under section 198(3) of the Criminal Procedure and Evidence Act

The accused Wellington Gurumombe was discharged at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act. He was found not guilty and acquitted of the charge of murder.

A statement by a deceased person can only be admitted as a dying declaration under section 254(1) of the Criminal Procedure and Evidence Act if it was made "upon the apprehension of death"—meaning the declarant must have been under the belief of certain or imminent death when making the statement. Where such apprehension of death is not established, the statement remains inadmissible hearsay evidence. Where the State fails to prove an essential element of the offence charged (such as the link between the accused and the fatal assault), and the only evidence connecting the accused to the crime is inadmissible hearsay, the court must discharge the accused at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act.

The court made extensive obiter observations criticizing the dying declarations exception as an anachronism based on outdated religious assumptions that have no scientific grounding. The court noted that the rationale for admitting dying declarations (that people on the point of death will not lie due to fear of divine retribution) is incompatible with modern constitutional protections of religious freedom and the diversity of beliefs in contemporary society. The court observed that the English Criminal Justice Act 2003 abolished the common law exception of dying declarations, creating a paradox in Zimbabwean law where section 254(1) references English practice that no longer exists. The court called for urgent legislative reform to remove the reference to English law in section 254(1) and to establish independent Zimbabwean criteria for the admissibility of dying declarations, taking into account the criticisms of the concept. The court also noted that without the apprehension of death requirement, the entire foundation of the dying declarations exception collapses, as that fear of impending death is what supposedly provides reliability to such statements.

This case is significant in South African and Zimbabwean jurisprudence for its critical analysis of the dying declarations exception to hearsay evidence. The judgment highlights the problematic nature of section 254(1) of the Criminal Procedure and Evidence Act, which ties the admissibility of dying declarations to the practice in the English Supreme Court of Judicature—a practice that has since been abolished by the Criminal Justice Act 2003. The court's analysis reveals a legislative gap and calls for urgent amendment to remove the reference to English law and establish independent criteria for admissibility of dying declarations. The judgment also critiques the common law rationale for dying declarations (based on religious assumptions about truthfulness before death) as anachronistic and incompatible with modern constitutional protections of religious freedom and diversity. It reinforces the requirement that all essential elements of an offence must be proven before an accused can be convicted, and emphasizes the constitutional right of an accused not to be compelled to give self-incriminating evidence.