THE State V Lovemore Maphosa

### Preamble
HCC58/25
HCCR464/25
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HCC58/25

HCCR464/25

THE STATE

versus

LOVEMORE MAPHOSA

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 9,16,29 July & 19 September 2025

Assessors		1.Mr Manyangadze

2.Mr Kamanga

Criminal Trial

G.T Dhamusi, for the State

R. Mupita, for the accused person

MUZOFA J:

[1] The accused faces one count of murder in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State alleges that, the accused acting in common purpose with one Audrey Matsende caused the death of the deceased, Simbarashe Matanga by stabbing him and assaulting him all over the body with an iron bar with intent to cause his death or in circumstances where death was foreseeable but they persisted in their conduct.

[2] On the 11th of January 2025 the accused, the deceased and other patrons were carousing and whiling time drinking beer at Gomba Bar, Patchway Kadoma. The deceased was in the company of three friends. An altercation erupted between the deceased and Gilbert on the one side and the accused together with his friends on the other. The dispute was on the deceased’s presence at Gomba Bar. They were not wanted. The altercation degenerated into a fight and the deceased together with his friends fled, taking different paths.

[3] The accused and Audrey caught up with the deceased and assaulted him. The accused used an iron rod to assault the deceased several times all over the body. They then left.

[4] The accused denied the charge. He said he was indeed at the shopping center but did not involve himself with Audrey nor the deceased. He did not know the deceased at all.

The State case

[5] The evidence of seven witnesses was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as summarized on the summary of the state case.

[6] We summarize the relevant witnesses’ evidence only. Gilbert Mbano ‘Gilbert’, Freddy Mlahleki ‘Freddy’ and Shakemore Mudimu ‘Shakemore’ were deceased’s friends. Their evidence was similar in all material respects. They were at Gomba Bar on this fateful night. One Audrey (it was confirmed that his alias was Shortie) shouted that they did not want to see residents from Montana at Mazarita Shopping Centre. The Montana people were the deceased and his friends.

[7] The accused had an iron rod with a sharp end in his possession. He struck Gilbert several times with the iron rod. Gilbert then escaped. The accused and Audrey then chased after the deceased.

[8] The State also produced by consent an iron rod which was 1.1 meters long, about 2 centimeters in radius with a sharp end. The accused’s warned and cautioned statement was produced by consent. His response to the caution was:

“I do not admit to the allegations levelled against me. I never stabbed the now deceased. I only arrived where the now deceased was lying after he had already been injured. I do not even know who stabbed him.”

[9] The post mortem report was also produced by consent. It was recorded that death was due to hypovolemic shock, section of the deep femoral artery, stab wound in left thigh.

[10] Two witnesses gave evidence. The first one was Tawanda Masocha, ‘Tawanda’. Tawanda was a security guard at Mazarita Shopping Centre. He was near Gomba Bar around 2300 hours on the fateful day. He knew the accused prior to the commission of the offence as a local resident.

[11] As he stood by the veranda at Gomba bar, he saw the deceased running from the bar. One Shortie was hot on his heels. He caught up with the deceased and stabbed him. The deceased fell. The accused arrived armed with an iron rod. He assaulted the deceased all over the body and then stabbed him once on the thigh. The two then ran away.

[12] It is only then that he, together with others went to assist the deceased. The accused later joined them to assist the deceased. The accused removed his work suit jacket and tied the deceased’s wound. Thereafter the deceased was taken to hospital. He was pronounced dead on arrival.

[13] In company of the police, he went to the accused’s place of residence. When the accused saw the police, he ran away carrying his iron rod. The police chased him and recovered the iron rod.

[14] The second witness was Sifelani Ncube. He was the investigating officer. He was on duty on 12 January 2025.Around 0400hours he received a report of murder at Mazarita Shopping Centre. He proceeded to the scene together with other officers.

[15] The deceased had already been ferried to the hospital. He only observed some blood where the deceased was. It was near a butchery. There was a light, although he could not comment on its illumination intensity since they went to the scene during day time.

[16] They went to the accused’s residence being led by Tawanda. When the accused saw the police, he ran away carrying an iron rod. They pursued him for a kilometer. He tripped and fell. That is when they arrested him. The iron rod was recovered and the accused signed the exhibit seizure form. He also recorded statements from witnesses and the accused. Indications were made by witness Tawanda and the accused. The indications were reduced to a sketch plan which was produced in court.

The Defense Case

[17] The accused adopted his defense outline. In his evidence in chief, he explained that he operated a rented shop. He said Tawanda could have mistaken him for someone called Clever Zawa ‘Clever’ who was in the company of Shortie. He said there was bad blood between him and Gilbert due to the fight. He denied that the iron rod was recovered from him. He said it was in the shop where he rented. It was recovered by Tawanda from the shop.

The State’s Closing Submissions

[18] After analyzing the witnesses’ evidence, the State urged the Court to find their evidence credible. On the other hand, reject the accused’s version as highly improbable.

[19] Of note is that Tawanda placed the accused at the scene and he was well known to the accused. There was no mistaken identity. Gilbert. Shakemore and Freddy saw the accused in the bar. The accused acted in common purpose with Audrey (Shortie). His conduct satisfies the requirements in S196A of the Criminal Code. He was not only at the scene; he also assaulted the deceased and stabbed him. He associated himself with Audrey’s conduct.

[20] The State urged the court to convict the accused on the lesser charge of culpable homicide since the accused did not set out to cause death, he was negligent.

Defense Closing Submissions

[21] The defence urged the Court to find the State witnesses not credible. In respect of Tawanda it was submitted that he was not clear as to who between the accused and Audrey administered the fatal wound. The accused assaulted the deceased when the deceased was already in jeopardy of death. As regards the investigating officer, he had no tangible evidence to link the accused to the offence except the recovery of the iron rod.

[22] We were urged to find the accused’s defense reasonable. He stuck to his defense from the warned and cautioned statement to the time he was in court. On the authority of S v M 1946 AD 1023 that,

“The court does not have to believe the defense story, still less does not have to believe in all details, it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true”.

[23] Mr Mupita submitted that the accused’s version must be found to be substantially true. He was consistent from the time of arrest, his evidence in chief and under cross examination. His conduct after the commission of the offence speaks for itself. He assisted the deceased and that conduct is not consistent with a guilty mind. The accused must be found not guilty and acquitted.

Factual and legal analysis

[24] Gilbert, Freddy and Shakemore’s evidence was admitted unchallenged. The import of admissions under s314 of the Criminal Procedure and Evidence Act is that the State need not prove the admitted facts. The corollary to the admission is that the other party cannot turn around and deny it, unless the formal admission is withdrawn first.

“314 Admission of fact

In any criminal proceedings the accused or his legal representative or the prosecutor may admit any fact relevant to the issue and any such admission shall be sufficient evidence of that fact. (Emphasis added).

[25] The rationale behind making formal admissions is to reduce the extent of disputation in a criminal trial. It curtails criminal proceedings. A formal admission is therefore generally regarded as binding on the maker. A party who would have ordinarily borne the duty to prove that particular fact is relieved of the need to do so. In S v Makhado 1999 (1) ZLR 467 (H) GILLESPIE J had the following to say regarding formal admissions of fact;

“The admissions sought and obtained from the accused are formal admissions as opposed to informal ones. That is to say, they are admissions of fact made in response to formal requests, as opposed to concessions contrary to his interest made by the accused in the course of his evidence. The former, once made, constitute proven fact concerning which no evidence need be led.” (emphasis added)

See also S v Dhliwayo 1987 (1) ZLR 1 (H) S v Mandwe 1993 (2) ZLR 233 (S).

[26] It was therefore an unnecessary exercise for the accused’s legal practitioner to expend much time cross examining Tawanda about the presence of the accused inside the bar, disputing that the accused assaulted Gilbert and chasing the deceased. We accept the facts as admitted.

[27] We wonder if Mr Mupita engaged the accused person before making these admissions. The accused hinted that Gilbert lied against him because there was bad blood between them. To that extent Gilbert should have given oral evidence so that his credibility maybe tested under cross examination.

[28] Tawanda’s evidence is beyond reproach. He knew the accused for about 5 to 6 years as a local resident. The accused himself confirmed that they knew each other very well. The real issue here is whether Tawanda’s evidence on identification of the accused is reliable.

[29] Tawanda was standing outside the bar doing his work. Outside the bar were floodlights which the accused confirmed. The deceased was attacked near the butchery; there was a light. The police officer confirmed the presence of a light at the butchery. Tawanda said he was about seven meters from the point where the deceased fell. The approach by our courts is to treat evidence on identification cautiously for obvious reasons. Courts have consistently rejected dock identification where the witness was unknown to the accused prior the commission of the offence, and there is no description of the accused. On the other hand, where the parties were known to each other the evidence is usually acceptable.

[30] The approach in S vs Mthethwa 1972(3) SA 766 (A-C) approved in S vs Dhliwayo and Another 1985(2) ZLR 10(S) at 107 A-D is instructive. In that case the Court highlighted the weaknesses inherent in human nature when it comes to identification particularly where the witness was unknown to the accused. It noted that courts must consider diverse factors that may assist it to come to a judicious decision on identification. The evidence on identification must be considered contextually together with the rest of the evidence.

[31] In this case Tawanda knew the accused, there was adequate illumination although the scene was mobile since the accused ran after the deceased. What is obvious is that when the accused exited the bar where the floodlight was, Tawanda could clearly see the faces of people who left the bar.

[32] Tawanda did not know what had transpired inside the bar. The accused could not pin a reason why Tawanda would lie against him. Under cross examination it was suggested that there was bad blood between the accused and Tawanda, he denied it. This is a tired question invariably put to every witness. It is meaningless if it is not followed up by the basis of the bad blood. Nothing was suggested to Tawanda for him to comment on the bad blood. We therefore find no reason for the said bad blood.

[33] He was candid in his evidence; he did not exaggerate his evidence. He even confirmed that accused returned and assisted the deceased. Had he been malicious he could have simply omitted that evidence or even denied that the accused assisted the deceased. Tawanda had no ulterior motive to falsely implicate the accused.

[34] On the other hand, the accused distanced himself from the bar. We do not accept his evidence. This is because Gilbert was in the bar, and the accused assaulted him. The accused admitted fighting with Gilbert; however, he opted not to tell the court why he fought with Gilbert. We can only accept the version given by Gilbert that this was a territorial fight.

[35] We also accept Sifelani, the Police Officer’s evidence in its totality. He did not know the accused prior to the commission of the offence. The accused himself did not give us a reason to reject his evidence we therefore accept that the accused tried to escape when the police arrested him at his residence. Secondly that he had his iron rod that Tawanda saw the previous night.

[36] We are alive to the fact that investigating officers also work under pressure to finalise cases or account for offences. At times they employ irregular means to deal with cases. Each case depends on its facts. We did not find evidence of any irregularities in this case. The accused’s warned and cautioned statement was recorded without undue influence. He denied the charge and the officer recorded it.

[37] Similarly, the sketch plan shows that the accused made indications. His indications were different from the witnesses’ indications. His indications showed where he was seated when the offence was committed. The accused signed the exhibit seizure form. It was not challenged.

[38] Per contra the accused did not strike us as a credible witness. Indeed, the accused need not prove his defence, but he must give a reasonable explanation. The court’s duty is to consider whether the explanation is reasonably possibly true.

[39] He said he was outside the bar. He did not tell us what he was doing. Gilbert placed him inside the bar. He said he did not see how the deceased was attacked. He came across the scene on his way home. According to his indications he was seated a short distance from where the deceased was assaulted. There are high probabilities that he must have seen what transpired. He simply intends to distance himself from the assault as much as possible.

[40] The accused forgot that lies have short legs. During cross examination he said Tawanda could have mistaken him for Clever who assaulted the deceased together with Audrey. The million-dollar question is how did the accused know about Clever’s involvement when he did not see how the deceased was assaulted. He said he came across the wounded deceased on his way home.

[41] His arrest also raises doubts on his innocence. He confirmed that he tried to run away from the police. Although running away from the police per se does not prove guilt but it raises a strong suspicion against the accused. On his part he gave a reason that he operated a shop illegally, so he was afraid of the police. Even if we accept the explanation, he could not successfully wish away the iron rod. He said it was in the shop and it was recovered from his rented shop by Tawanda. We were not told how Tawanda knew about the iron rod that was in his shop. Most crucially Sifelani the police officer said they searched his place at residence and not the shop. We therefore accept that the iron rod was recovered on him upon arrest.

[42] His conduct after the offence was committed was emphasised as evidence pointing to his innocence. He assisted the deceased. Can that conduct be evidence of an innocent person as propounded by Mr Mupita? This is an inference that requires further examination. The law on inferences is that there must be proved facts. The inference sought to be drawn must be the only one. Several inferences can be drawn from his conduct, that he did not commit the offence that is why he did not abscond, that a guilty conscience took him to the scene to assist the deceased and that he acted to confuse investigations. Since the inference sought to be drawn is not the only one, we cannot accept it. We are fortified in this conclusion by the witness evidence who saw the accused committing the offence.

[43] We have no doubt that accused acted in common purpose with Shortie. In the bar he responded to the invitation by Shortie against those from Montana. It was not disputed that the accused was from Mazarita. The deceased, Gilbert and friends were from Montana. He assaulted Gilbert. Thereafter he joined Shortie in pursuit of the deceased and assaulted him. The iron rod that he used was recovered from him upon arrest.

[44] It does not matter who administered the fatal blow. The doctrine of common purpose under SI 96A of the Criminal Code provides that if two or more people act together in fulfilment of a common intent, every act done by one of them in furtherance of that common intent is deemed at law to be the act of them all. See Chauke v S 2000 (2) ZLR 494 (S).

[45] The accused associated himself with Shortie by responding to the call to chase the Montana people. He assaulted Gilbert first, then joined Sortie to assault the deceased.

[46] It is trite that the State bears the onus to prove its case beyond reasonable doubt. In a murder case, the State must prove that the accused by his act of commission or omission unlawfully and intentionally caused the death of the deceased.

[47] The State must prove the mental element that the accused set out to cause death and he achieved his intention. The mental element can be inferred from the circumstances of the case, the weapon used, number of blows and the part of body targeted. In S v Mabhena HB 148/13 the accused assaulted the deceased with clenched fists and stabbed him once on the chest he was found guilty of the lessor charge of culpable homicide. On the other hand, in S v Mema HB143/13 cited by the state the accused stabbed the deceased thrice with a bayonet knife he was found guilty of murder with constructive intention.

[48] What runs through the cases is that one stab usually denotes a lack of intention to kill. In this case it cannot be said death was intended neither was it foreseeable and the accused took a conscious risk. The deceased was stabbed once on the thigh which is not a usual vulnerable part of the body. The accused was negligent in his conduct. His conduct did not show an actual intention or constructive intention to cause death.

[49] We agree with the State; the accused lacked the intention to kill.

[50] Accordingly, the accused is found guilty of the lessor charge of culpable homicide in contravention of s49 of the Criminal Law Code.

Sentencing Judgement

[51] In terms of s49 of the Criminal Law Code, culpable homicide attracts a life imprisonment or any definite period of imprisonment or a fine up to or exceeding level 14 or both. Statutory Instrument 146 of 2023 sets the presumptive penalty of 5 years where the offence was committed in aggravating circumstances and 3 years where there are mitigating factors.

[52] The degree of negligence in this case is moderate as submitted by both counsel for the accused and the state. The accused was armed with a dangerous weapon which was produced before the court. An iron rod with a sharp end like a spear. He stabbed the deceased once on the thigh. It is unfortunate that he ripped the femoral artery leading to excessive bleeding. He must have exerted considerate force to inflict the deep cut.

[53] It is a highly mitigatory that the accused assisted the deceased after the assault. We were told he removed his work suit jacket and bound the wound maybe to restrict the bleeding. He is a first offender with family responsibilities. He will live with the stigma that he killed a person which will take a long time to erase.

[54] The accused is fairly young and has a chance to be rehabilitated. In S v Chitsungo HH 228/23 the court in analyzing the importance of youthfulness held that:

“In mitigation we considered that the accused is a 23-year-old first offender. At the time that he committed the offence in 2020 he was 21 years old. As a youthful first offender he deserves to be treated with leniency. The objective is to rehabilitated him. As a youthful offender he needs another chance in life. It could be that he was influenced by immaturity and lack of experience of life when he committed the crime. He did not pose to think about the likely consequences of his intended action.”

[55] In the Chitsungo case (supra) the accused was sentenced to 10 years’ imprisonment of which 3 years’ imprisonment was conditionally suspended for 5 years. Effective 7 years’ imprisonment.

[56] The accused spent 7 months in custody which cannot be said to be a considerably long period but the court will take into account that, for 7 months his liberty was curtailed pending trial.

[57] In aggravation we took into account that this was an unprovoked assault. The deceased was simply drinking bear. The territorial fight was not something which must cost life. The accused and his friends were highhanded and downright bullies. Violence must not be a panacea to every alteration. The deceased had fled, why did they pursue the deceased and his friends except to demonstrate their prowess and violent disposition which is inherent within the artisanal community. The Court must play its part to punish those found on the wrong side of the law.

[58] The deceased was also  a young man who still had a life to live,he lost his life in one of the most unfortunate circumstances. A victim impact affidavit was produced which set out the hardships the death has caused to the family. The gangsterism spirit within the artisanal mining community must be tamed. The deceased was pounced upon by the two for a senseless reason. No one owns the claimed territory.

[59] A non-custodial sentence would be against the tenets of justice. A life was lost; communities do not know the legal niceties that differentiates culpable homicide and murder. What they know is that a person was killed by the accused. The interest of justice can only be met by imposing a custodial sentence. Despite being a first offender, he can still be incarcerated. See State v Zvioneso Chaira & Ors HH 829/18 (page 17) and State v Machamba 1992 (1) ZLR 102 (H).

[60] The sentence of 2- 3 years that was suggested by the defence, Mr Mupita counsel will certainly be repulsive to society considering the circumstances surrounding the commission of the offence. The aggravatory factors outweigh the mitigatory factors but for his age the sentence would perch slightly above the presumptive sentence where there are aggravating circumstances. A sentence of 9 years’ imprisonment with a portion suspended on condition of future good behaviour will meet the justice of the case.

[61] Accordingly, the accused is sentenced as follows;

“9 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition within that period the accused is not convicted of an offence involving violence or negligent causing the death of another upon which upon conviction he is sentenced to imprisonment without the option of a fine. Effective 7 years.”

The National Prosecuting Authority, the State’s legal practitioners

Mupita Law Chambers, the accused’s pro – deo legal practitioners