The State versus Qhubekani Mpofu

On 8 July 2016 at Cross Dete, the accused and deceased were friends working as touts who spent the day drinking beer together. When a Bravo bus arrived traveling from Bulawayo to Victoria Falls, both rushed to the bus with vendors. While unloading goods, the accused and deceased quarreled over a dollar, with the accused threatening to assault the deceased, stating "Today I am going to beat you up and skin you like a goat." When someone shouted alerting others of an oncoming motor vehicle, the accused, who was holding the deceased by his shoulders, pushed the deceased directly into the path of the oncoming vehicle when it was barely 3 metres away. The deceased was struck by the vehicle and sustained blunt abdominal trauma and a fractured left femur. He was taken to the Intensive Care Unit at Mpilo Hospital where he underwent several operations before dying on 17 August 2016, approximately 40 days after the incident. The post-mortem report indicated death due to septicaemia and blunt abdominal trauma from the traffic accident. The deceased had previously had an amputation above his right elbow and had defaulted TB treatment in 2015.

• Whether the accused intentionally caused the death of the deceased, constituting murder
• Whether the accused's conduct amounted to reckless negligence constituting culpable homicide
• Whether the post-mortem evidence established a causal link between the accused's conduct and the deceased's death
• The appropriate sentence for culpable homicide in circumstances bordering on murder with constructive intent

The accused was found not guilty of murder but guilty of culpable homicide. He was sentenced to 10 years imprisonment, with 2 years suspended for 5 years on condition that he does not commit any offence involving violence or causing death during that period for which he would be sentenced to imprisonment without the option of a fine. Effective sentence: 8 years imprisonment.

Where an accused pushes a deceased into the path of an oncoming vehicle and the deceased dies from injuries sustained, but the post-mortem evidence does not definitively establish that death resulted solely from the injuries caused by the accused's conduct (due to other contributing health factors), and where evidence from the vehicle driver is absent, the appropriate conviction is culpable homicide rather than murder. A reasonable person in the accused's circumstances would have foreseen the possibility of the deceased being injured or dying when pushed into oncoming traffic. Extreme recklessness that borders on murder with constructive intent warrants a substantially lengthy custodial sentence for culpable homicide.

The court commented on the need for measured and diplomatic language when cross-examining witnesses to uphold court dignity, cautioning defense counsel against labeling witnesses as "liars" in undeserving circumstances, as determining truthfulness is within the court's province. The court noted this case arose at a time of general public outcry about the conduct of touts in Zimbabwe, and that sentences must convey the correct message to those of like mind. The court observed that the accused's lack of remorse manifested in his instructing counsel to characterize honest witnesses as liars. The court also noted that earning the stigma of being a murderer is itself a form of punishment the accused will live with.

This Zimbabwean High Court case illustrates the distinction between murder and culpable homicide where extreme recklessness is involved but technical evidentiary challenges prevent a murder conviction. It demonstrates how courts assess credibility of witnesses, the importance of post-mortem evidence establishing causation in homicide cases, and the weight given to aggravating factors such as lack of remorse and extreme negligence in sentencing for culpable homicide. The case also reflects judicial concern about violence by touts and sends a message through an "unusually long sentence" for culpable homicide to deter similar conduct.