The State versus Witness Sibanda and Cleopas Dube and Melusi Mpofu

On 18 January 2010 at Golden Harmony Business Centre in Madlambuzi area of Matabeleland South Province, three accused persons (aged 41, 24, and 34 years) were charged with murdering Chebukani Khupe. The first accused suspected the deceased of stealing his 15 cattle. The second accused (Cleopas Dube) and third accused (Melusi Mpofu) arrived at the bottle store around 2pm, with the first accused (Witness Sibanda) joining them around 4pm after being called by the second accused multiple times. When the deceased arrived at the bottle store around 4pm, the first accused made threatening statements about getting his cattle back. Around 7pm, the three accused persons jointly assaulted the deceased. The first accused used a knobkerrie to strike the deceased repeatedly while asking about his cattle. The second accused grabbed the deceased by the elbows, pushed him against a wall, and later trampled on his chest and abdomen. The third accused held the deceased while the others assaulted him, smashed bottles, dragged the deceased approximately 9-10 meters by his belt, and stamped on his chest and abdomen. The assault lasted approximately one and a half hours. A 2kg granite rock was used to strike the deceased on the head, causing a large wound. The deceased was taken to a clinic in a wheelbarrow but died approximately 30 minutes after arrival. The post-mortem examination revealed multiple rib fractures that perforated both lungs, a ruptured liver, severe head wounds, multiple bruises, and swelling on the face and neck. Death was attributed to hypovolemic shock resulting from perforated lungs and ruptured liver.

• Whether the three accused persons acted with the requisite intent to murder
• Whether the accused persons acted in common purpose in assaulting the deceased
• Whether self-defense or provocation applied to any of the accused
• Whether the psychiatric examination of the second accused affected his criminal responsibility
• Whether the trial could proceed with one assessor after the death of another assessor

All three accused persons were convicted of murder with actual intent. Each accused was sentenced to 33 years imprisonment, with 3 years deducted for time already spent in custody awaiting trial. Effective sentence: 30 years imprisonment for each accused.

Where multiple accused persons act in common purpose in a sustained and brutal assault on a victim, each participant can be convicted of murder with actual intent regardless of the specific role each played, provided each made a material contribution to the assault and death was a substantial certainty. The doctrine of common purpose applies where accused persons act in concert toward a common unlawful objective. Extra-curial statements made shortly after events and later confirmed before a magistrate carry significant weight and will be preferred over subsequent contradictory defense testimony presented at trial. Participants in vigilante or mob justice who take the law into their own hands and kill a person they suspect of committing a crime are guilty of murder, regardless of whether the victim actually committed the suspected offense or whether police failed to act on reports.

The court observed that the accused persons were "extremely lucky" to have escaped capital punishment and also lucky to have escaped life imprisonment. The court noted that vigilante justice and primitive mob justice would be "a recipe for chaos in a modern society." The court commented on the inordinate delay of three years caused by waiting for the psychiatric examination report, which was ordered in March 2011 but only made available in February 2014. The court expressed its dim view of group murders. The court noted that even if the accused had proof that the deceased stole the cattle, they would have had no right to take the law into their own hands. The court observed that the accused assaulted the deceased "as if the accused persons were killing a snake" when describing the use of the 2kg granite rock on the deceased's head.

This case is significant in Zimbabwean criminal law for demonstrating the application of common purpose doctrine in murder cases. It illustrates how multiple participants in a gang assault can each be held liable for murder with actual intent even where different accused played different roles in the assault. The case also addresses procedural issues including the continuation of a High Court trial with one assessor following the death of another assessor (in terms of section 8 of the High Court Act), and the procedure for psychiatric examination under the Mental Health Act where mental capacity is raised as a defense. The judgment emphasizes that vigilante justice and mob violence will not be tolerated, and that suspects cannot take the law into their own hands even where they believe a crime has been committed against them. The case demonstrates the courts' dim view of group murders and brutal killings, while stopping short of imposing capital punishment or life imprisonment.