State v Stella Tembo

On 30 January 2018, the 35-year-old accused Stella Tembo struck her 81-year-old step-father, Mbalama Shumba, twice on the head with a metal bar. He died from his injuries on 2 February 2018. The accused claimed she had been raped by the deceased three times in the week leading up to the attack. However, her descriptions of the alleged rapes were unusual - she described experiencing sexual intercourse while in a trance-like or dreamlike state, feeling immobilized and unable to resist. She reported these incidents to her mother and village elders, who admonished the deceased but were uncertain whether her complaints referred to physical rape or to "mubobobo" (a form of supernatural sexual violation in traditional beliefs). The accused claimed that after a third similar experience, she confronted the deceased at his hut and struck him in self-defence when he allegedly tried to attack her. The State's case was that she attacked him with a metal bar weighing 3.2 kg. The deceased, before his death, told his son that the accused had attacked him after accusing him of sleeping with her, with no mention of a fight. The post-mortem revealed death from subarachnoid haemorrhage and skull fracture due to blunt force trauma.

• Whether the accused was raped in the physical sense or experienced sexual encounters only in a dreamlike state
• Whether the accused acted in self-defence as defined in section 253 of the Criminal Code
• Whether provocation could serve as a partial defence to murder
• Whether the accused intended to kill the deceased
• Whether the accused suffered from diminished responsibility or non-pathological incapacity due to severe emotional stress
• The appropriate sentence for culpable homicide in the circumstances

The accused was found guilty of culpable homicide in terms of section 49 of the Criminal Code (not guilty of murder as charged). She was sentenced to 5 years imprisonment, of which 2 years was suspended for 5 years on condition that she does not commit an offence involving violence on the person of another during that period for which she is sentenced to imprisonment without the option of a fine. Effective sentence: 3 years imprisonment.

For self-defence under section 253 of the Criminal Code to succeed, there must be an actual imminent attack, not merely a perceived or imagined threat. Sexual encounters experienced only in dreamlike or trance-like states, without objective physical evidence, do not constitute rape in the legal sense sufficient to justify a claim of self-defence when the alleged perpetrator is later attacked. A person who initiates a confrontation and attack cannot claim self-defence. Severe emotional stress arising from genuine but mistaken beliefs can constitute "non-pathological incapacity" or diminished responsibility, which is mitigatory in sentencing but not a complete defence to culpable homicide. Culpable homicide under section 49 of the Criminal Code is the appropriate conviction where the accused negligently caused death without intention to kill.

The court noted the cultural belief in "mubobobo" (supernatural sexual violation using magic) prevalent in Zimbabwe but emphasized that under section 98 of the Criminal Code, courts shall not take judicial notice of practices associated with witchcraft, though expert evidence may be led. The court observed that the accused may have been suffering from a condition akin to sleep epilepsy, though psychiatric examination was not pursued. The court expressed sympathy for the accused's emotional state, noting that if she genuinely believed she was being raped in her dreams, the psychological toll would have been severe. The court commented on the difficulty village elders faced in addressing complaints that blend traditional beliefs with modern legal concepts. TSANGA J emphasized that while most rapes go unreported, it is unusual not to report rape to police where one has fatally attacked someone because of it, particularly where the accused claimed she wanted to protect the deceased from imprisonment initially but then killed him. The court noted the importance of not trivializing loss of human life through inadequate sentences such as fines alone.

This case is significant in Zimbabwean criminal law for several reasons: (1) It addresses the intersection of traditional beliefs (mubobobo - supernatural sexual violation) with modern criminal law concepts of rape and self-defence; (2) It applies the principle of "non-pathological incapacity" from S v Gambanga, recognizing that severe emotional stress (not rising to mental disorder) can constitute diminished responsibility as a mitigating factor in sentencing; (3) It clarifies that self-defence under section 253 of the Criminal Code requires an actual imminent attack, not a perceived or imagined threat; (4) It demonstrates judicial sensitivity to cultural beliefs while maintaining that criminal liability must be based on objective evidence of physical acts rather than subjective dreamlike experiences; (5) It balances the seriousness of taking human life against mitigating factors including the accused's genuine but mistaken belief in rape, her status as a widow with minor children, and her first-offender status; and (6) It reinforces that individuals cannot take the law into their own hands even when they believe they have been wronged, particularly where community structures (village elders) were available to address complaints.