The State v Ambition Calm Sibanda and Everson Mpofu

On 1 January 2016 at Lukona Business Centre, Inyathi in Matabeleland North Province, Zimbabwe, the deceased Ino Mpofu (aged 41) died from a stab wound. The accused, deceased, and other patrons had been drinking heavily from 31 December 2015 into the early morning of 1 January 2016 in a new year celebration. All parties were intoxicated. The deceased had been the aggressor throughout the evening, having assaulted the accused on multiple occasions. During the fatal incident, the deceased pulled the accused from a tuck-shop over a misunderstanding about a 10 cent coin and a box of matches, tripped him down, knelt on top of him, and strangled him by holding his throat with both hands. The accused then stabbed the deceased with an Okapi knife in the left ear, which broke, causing the deceased to die on the spot. The accused claimed he had earlier confiscated the knife from the deceased's pockets during an earlier scuffle, and that the fatal stabbing occurred accidentally when he stretched his left hand to ward off the deceased who was attacking him again.

• Whether the accused murdered the deceased in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act
• Whether the defence of self-defence as provided in section 253 of the Code was established
• Whether the defence of provocation as provided in sections 238 and 239 of the Code applied
• Whether the accused's version of events was reasonably possibly true given the state of intoxication of witnesses
• Whether the State proved its case beyond reasonable doubt

The accused was found not guilty and acquitted.

Self-defence can constitute a complete defence to a murder charge where: (1) the accused was under a serious threat of unlawful attack; (2) the accused's actions were taken to ward off that attack; (3) the force used was reasonable in the circumstances; and (4) the accused's explanation is reasonably possibly true. Courts must not adopt an armchair approach when evaluating self-defence claims but must consider the immediacy and gravity of the threat faced by the accused. Where the State's evidence is unreliable due to intoxication of witnesses and fails to exclude the accused's version beyond reasonable doubt, the accused is entitled to an acquittal on the basis of self-defence.

The court observed that provocation, when raised alone, provides only a partial defence as per sections 238 and 239 of the Criminal Law (Codification and Reform) Act. The court noted that in cases involving the possibility of capital punishment, evidence must be given with clarity and must reach the threshold of proof beyond reasonable doubt, and it is dangerous to rely on vague evidence from intoxicated witnesses in such cases. The court referenced G. Feltoe's observation that a person is entitled to take reasonable steps to defend himself against an unlawful attack, and that harm, and even sometimes death, may be inflicted on the assailant to ward off the attack. The court also noted that charges against the co-accused Everson Mpofu (who allegedly offered the knife to the accused) were withdrawn at the commencement of trial 'for some reason', without further explanation.

This Zimbabwean High Court case demonstrates the application of self-defence principles in homicide cases where intoxication affects witness reliability. It emphasizes that courts must not adopt an 'armchair approach' when evaluating self-defence claims, and that the accused must be given the benefit of doubt when the State's evidence fails to prove guilt beyond reasonable doubt. The case illustrates how self-defence can constitute a complete defence to murder charges when an accused acts to ward off an unlawful attack, even if death results. It also highlights the evidential difficulties in cases where key witnesses are intoxicated and the high standard of proof required in capital cases. While this is a Zimbabwean case, it reflects similar common law principles applicable in South African criminal law regarding self-defence under common law and the Criminal Law (Codification and Reform) Act.