Edson Dzipe v The State

The accused, Edson Dzipe, was a shoe vendor who had previously received assistance from the police regarding goods that had been lost by a person to whom he had entrusted them. The police ordered compensation for the accused. On 26 May 2025, around 6pm at the corner of Fife Street and 5th Avenue, the accused was confronted by the deceased, Somabala Khumalo, who was dissatisfied with what had transpired at the police station regarding his friend Simbarashe. The deceased wanted to assault the accused and started insulting him, saying he wanted to "teach him a lesson." The deceased kicked and assaulted the accused, causing him to fall down. When the accused got up and asked to be left alone, the deceased kicked him a second time. The accused held the deceased's leg and the deceased fell down. The deceased followed the accused and struck him in the face with a clenched fist, whereupon the accused hit him back with a fist on the mouth. The deceased fell down and subsequently died from injuries sustained in the fall. The accused was arrested and charged with murder, pleading not guilty and raising the defence of self-defence.

• Whether there was sufficient evidence at the close of the State case to put the accused on his defence in terms of section 198(3) of the Criminal Procedure and Evidence Act
• Whether the State had disproved the defence of self-defence raised by the accused
• Whether the accused's conduct satisfied the requirements for self-defence as a complete defence under sections 253 and 254 of the Criminal Law (Codification & Reform) Act
• Whether the accused was required to give evidence to establish his defence of self-defence at the discharge application stage
• Whether the means used by the accused to avert the unlawful attack were reasonable in all the circumstances

The accused, Edson Dzipe, was found not guilty of murder and acquitted in terms of Section 198(3) of the Criminal Procedure and Evidence Act, having acted in lawful self-defence.

Where an accused raises the defence of self-defence in a murder trial, the burden remains on the State to disprove that defence and does not shift to the accused. At the close of the State case, when considering a discharge application under section 198(3), the court must evaluate only the evidence led by the State (including any warned and cautioned statement) to determine whether it has established a prima facie case. The accused is not required to give evidence to establish self-defence at this stage. Where the State's own evidence, including the accused's cautioned statement, indicates that the accused was unlawfully attacked first and used reasonable means to defend himself, and the State has not led evidence to negative the defence of self-defence, the court is obliged to acquit under section 198(3). The word "shall" in section 198(3) is peremptory and mandatory. For self-defence to succeed under sections 253-254 of the Criminal Law (Codification & Reform) Act, the court must consider whether the means used were reasonable in all circumstances, taking due account of the circumstances in which the accused found himself, including any stress or fear operating on his mind. Where the accused used only his hands to defend against a physical attack involving kicking and punching, and there is no evidence of alternative means available, the means used are reasonable.

The court observed that "death may occur suddenly, and one has to be very careful," noting the tragic circumstances where an ordinary business transaction and marketplace dispute escalated to a fatal outcome. The court noted that the transaction at the police station regarding lost goods was not part of the trial but was mentioned only to explain how the events leading to trial arose. The court made general observations about the interpretation of the word "shall" in statutory provisions, citing Pio v Franklin NO and Another 1949 (3) SA 442 (C) at 451, stating that "shall" is to be considered peremptory unless other circumstances negative this construction. The court also noted the evolution of the discharge provision from the previous section 188(3) which used "may" as opposed to the current "shall" in section 198(3), indicating a shift from discretionary to mandatory acquittal where the requirements are met.

This case reinforces important principles in Zimbabwean criminal procedure and substantive criminal law applicable to South African jurisprudence. It confirms that: (1) the mandatory nature of section 198(3) discharge applications (similar to section 174 of South Africa's Criminal Procedure Act); (2) the burden of proof remains on the prosecution throughout, including when self-defence is raised, and does not shift to the accused; (3) an accused is not required to give evidence to establish self-defence at the discharge stage - the court must evaluate whether the State has disproved the defence based on the State's own evidence; (4) the court must consider the accused's cautioned statement as part of the State's case; and (5) the application of the statutory requirements for self-defence, including reasonableness of means used, must be evaluated in light of all circumstances including the accused's knowledge, capability, and any stress or fear operating on his mind. The case demonstrates proper application of the test for discharge at the close of the State case and the legal principles governing self-defence in homicide cases.