The State v Bathethelele Ndlovu

On 5 May 2021 at around 1800 hours, the accused (aged 28), the deceased (aged 42), and one Josphat Ncube were drinking beer at Kwini line Tuckshop in Tsholotsho. The accused bought a two-litre bottle of opaque beer and sat alone some distance away from the deceased and Josphat Ncube. The deceased approached the accused and forcibly grabbed the bottle of beer and drank from it without permission. The accused, angered by this, grabbed his bottle back and walked a few metres away. The deceased followed the accused, grabbed him by both hands around his shoulders and chest, and called out to Josphat Ncube to come and deal with the accused. The accused and deceased wrestled, and the accused reached for a knife from his trousers pocket and stabbed the deceased once in the chest. The deceased loosened his grip and the accused fled. The deceased tried to give chase but collapsed to the ground, bled profusely from the wound, and died on the spot. The post mortem report listed the cause of death as acute anemia, cardiac and pulmonary laceration from a stab wound. The stab wound was 1.5 cm in length, located in the anterior thorax, penetrating the chest cavity at the level of the left 6th costal arch, and perforated the heart.

• Whether the accused was guilty of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act Chapter 9:23
• Whether the accused was guilty of the lesser offence of culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act
• Whether the accused acted in self-defence but used disproportionate force
• Whether the accused negligently failed to foresee that death may result from his conduct

The accused was found not guilty of murder and found guilty of the lesser crime of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 6 years imprisonment, of which 2 years imprisonment was suspended for 5 years on condition that the accused does not within that period commit an offence of which assault or physical violence on the person of another is an element and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. Effective sentence: 4 years imprisonment.

Where an accused person is under unlawful attack but responds by using disproportionate force - such as stabbing the attacker with a knife in the chest, perforating the heart - the accused acts negligently if it was objectively foreseeable or within the range of ordinary human experience that such actions would lead to death. In such circumstances, the accused is guilty of culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act, not murder, where the accused negligently failed to realize that death may result from his conduct or, realizing that death may result, negligently failed to guard against that possibility. A reasonable person placed in a similar situation would have avoided acting in the manner the accused did.

The court made observations emphasizing the sanctity of human life and the need for courts to send a loud and clear message that the killing of a fellow human being will not be tolerated by society. The court also noted that the accused used much force on a delicate part of the human body (the chest), damaging the heart of the deceased, which reinforced the seriousness of the offence despite the finding of culpable homicide rather than murder. The court observed that there was some measure of provocation and intoxication which were factored into mitigation, and that the deceased was much older than the accused and had initiated the confrontation by grabbing the beer and then physically restraining the accused.

This case illustrates the application of the law of culpable homicide in Zimbabwe, particularly in the context of self-defence claims where disproportionate force is used. It demonstrates how Zimbabwean courts apply the objective test for negligence in homicide cases, considering whether it was objectively foreseeable that the accused's actions would result in death. The case also demonstrates the sentencing approach in culpable homicide cases where there are both mitigating factors (provocation, intoxication, first offender) and aggravating factors (use of a lethal weapon, serious injury to a vital organ), and reaffirms the principle of the sanctity of human life. The case applies the Criminal Law (Codification and Reform) Act which is relevant to the understanding of homicide law in Zimbabwe and other jurisdictions with similar codified criminal law statutes.