The State v Austin Ncube

On 30 December 2012, the accused Austin Ncube (aged 17) and others including his younger brother Nkosiyalinda Ngwenya were at a borehole in Ngoma area, Gwanda, looking for donkeys. The deceased Zenzo Ncube and Honest Siziba arrived also looking for donkeys. After initially leaving, the deceased and Honest returned to the borehole. As they were leaving again, the deceased called Nkosiyalinda, who refused. The deceased then chased, caught, and dragged Nkosiyalinda by the leg, felling him to the ground. The accused intervened and queried the deceased's actions. The deceased responded by asking what the accused would do about it, then walked away. The accused confronted the deceased face to face, then pretended to walk away. After passing the deceased, the accused turned back, drew an okapi knife, and stabbed the deceased once from behind at the back of the neck. The deceased died from the injury. The accused had a previous grudge with the deceased who had insulted him on Christmas Day, five days earlier. Honest Siziba was carrying a stick but never used it or threatened anyone.

• Whether the accused acted in self-defence under section 253 of the Criminal Law Codification and Reform Act [Chapter 9:23]
• Whether the accused had actual intention to kill or legal intention
• Whether the force used was reasonable and proportionate to the threat
• Whether the unlawful attack was imminent or ongoing at the time the accused stabbed the deceased

The accused was found guilty of murder with actual intent and sentenced to 8 years imprisonment, taking into account that he was 17 years old at the time of the offence, the provocation by the deceased attacking his brother, his 1.5 years already spent in remand prison, and his truthfulness and contrition.

Self-defence under section 253 of the Criminal Law Codification and Reform Act is not available where: (1) the unlawful attack has ceased and the attacker is retreating; (2) the accused's conduct is not necessary to avert an attack that has already ended; (3) the means used are unreasonable and grossly disproportionate to the harm caused or threatened by the initial unlawful attack. A person acts with actual intention to kill where, in the process of engaging in an activity (here, stabbing someone at the back of the neck with an okapi knife causing spinal cord injury), they foresee death as a substantially certain result of that activity and proceed regardless of whether this consequence ensues, even if death was not their primary aim or objective.

The court noted with apparent approval that the accused told a version of events primarily similar to that of the state witnesses, which it took as evidence of truthfulness and contrition. This observation suggests the court's view on the weight to be given to an accused's candor in providing a truthful account, even when it does not support a complete defence. The court also observed the accused's young age (17 years) and the provocation he experienced from witnessing the attack on his younger brother, though these factors did not constitute a defence, they were relevant to sentencing as mitigating circumstances.

This Zimbabwean High Court case provides important guidance on the interpretation and application of section 253 of the Criminal Law Codification and Reform Act regarding self-defence. It establishes clear boundaries for when self-defence is available, particularly emphasizing that: (1) self-defence is not available once an unlawful attack has ceased and the attacker is retreating; (2) the response must be proportionate to the threat posed; (3) the necessity requirement is strictly applied - one cannot claim self-defence when confronting a retreating attacker. The case also illustrates the application of actual intention to kill under the second limb (foresight of death as substantially certain consequence), particularly relevant in cases involving vulnerable body parts like the neck and spinal cord. It demonstrates judicial consideration of youth as a mitigating factor in sentencing for serious crimes.