The State v Agent Ndlovu

The accused and the deceased were biological brothers residing together at their late father's homestead in Village Mhlupheki, Chief Malisa, Zhombe. After their father's death in 2012, the deceased ejected their mother from the homestead. The accused and deceased had a frosty relationship, not sharing food and living separately despite residing in the same homestead. On 4 February 2019, the deceased questioned the accused about a recent visit to their mother and asked why he did not leave to stay with her. After a neighbor (Peter Ncube) left, a quarrel resumed. The deceased threw a hoe handle at the accused, hitting him, and then stood up as if to retrieve his own axe from inside the house. The accused, believing the deceased was going to attack him with an axe, picked up his own axe and struck the deceased once on the back of the head. The deceased died from the injuries sustained (subdural haemorrhage, skull fracture and head trauma).

• Whether the accused was acting in self-defence when he struck the deceased with an axe
• Whether all requirements for the defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act were satisfied
• Whether the means used by the accused to avert the attack were reasonable in the circumstances
• Whether the accused had a duty to flee from his own homestead
• Whether the accused should be convicted of murder or culpable homicide

The accused was found not guilty of murder but guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act. He was sentenced to 7 years imprisonment, of which 2 years were suspended for 5 years on condition that he does not commit an offence involving assault or physical violence on another person during that period, resulting in an effective sentence of 5 years imprisonment.

Where an accused person is defending himself against an unlawful attack at his own home or residence and all requirements for self-defence under section 253 of the Criminal Law (Codification and Reform) Act are satisfied except that the means used to avert the attack were not reasonable in the circumstances, the accused shall be convicted of culpable homicide rather than murder in terms of section 254 of the Act. A person has no duty to flee from his own home or place of residence when attacked there, as it is his last refuge or "castle" where he may protect himself against unlawful attack. In assessing the reasonableness of defensive action, courts must avoid an "armchair critic" approach and must consider that a person under sudden attack has only seconds to make a decision and cannot be expected to weigh all advantages and disadvantages calmly.

The court made observations about the deceased being a bully who had ejected the mother from the homestead, was older than the accused, used to assault the accused, and did not want the accused to reside in their late father's homestead despite the accused having nowhere else to go. The court noted that the relationship between the brothers was not cordial, with each gathering his own food and not sharing. The court emphasized the sanctity of human life and that society frowns upon the taking of human life, particularly with a dangerous weapon like an axe used on the head. The court noted that even if the accused was mistaken in believing the deceased was reaching for his axe, such belief was reasonable on the facts of the case under section 255 of the Criminal Law (Codification and Reform) Act.

This case illustrates the application of section 254 of the Criminal Law (Codification and Reform) Act, which provides for a partial defence to murder where self-defence is established but the means used were disproportionate. The case reinforces important principles in Zimbabwean criminal law regarding self-defence, including: (1) the principle that a person has no duty to flee from their own home when unlawfully attacked (the "castle doctrine"); (2) the need to avoid an "armchair critic" approach when assessing whether defensive action was reasonable; (3) the recognition that a person under sudden attack cannot be expected to weigh all advantages and disadvantages calmly; and (4) the application of the objective test for reasonableness while considering the subjective circumstances faced by the accused. The case demonstrates judicial recognition of the dynamics of domestic conflict and bullying while still emphasizing the sanctity of human life and proportionality in defensive responses.