S v MTOMBENI 1992 (2) ZLR 104 (S)

Flynote

Criminal law — murder — murderous assault — victim only killed later by appellant trying to dispose of body — whether affects liability for murder

Headnote

The appellant and his accomplice went to a house in order to steal property. A female employee of the owner who knew the two men admitted them to the house. The two men set upon the woman and with actual intention to kill tried to strangle her with a belt. Thinking that they had killed the woman they proceeded to steal property from the house.

Sometime later the the appellant returned without his accomplice and set fire to the house in order to destroy the body so that there would be no evidence of the murder.

The appellant was convicted of murder by the trial court. On appeal, counsel for appellant argued that the appellant should not have been convicted of murder as at the time that death was caused by him he had no intention tokill.

Held, the appellant had been correctly convicted of murder, as there had been no snap in the chain of causation.

Held, the reasons why there is no snap in the causal chain in this situation are these:

Firstly, whether or not a person has decided in advance of a murderous attack that after the attack the person will dispose of the body, there is no question of the second act or event being treated as a new and independent act which snaps the chain of causation, provided that the two acts are so closely connected to each other as regards duration and method of performance that for all practical purposes they constitute a single transaction. Secondly, to find a person guilty of murder where he kills by the act of disposal of the body does not amount to an exception to the the principle that the mens rea must be contemporaneous with the actus reus. This is because the initial actus which was accompanied by mens rea operates as a sine qua non of the victim's death and the subsequent act does not break the chain of causation arising from the initial murderous assault.