The State v Brian Khona

On 25 January 2021, the accused (aged 56) and the deceased Conelious Khona (aged 70), who were brothers residing at the same homestead, became involved in an altercation. The deceased confronted the accused about letting cattle out of the kraal. The deceased assaulted the accused with a fist on the head, and they began exchanging blows. When the deceased fell to the ground, the accused struck him once on the head with a log. The two were restrained and the deceased was escorted away, but he returned armed with two knobkerries and followed the accused to the fields. The accused then picked up two stones and threw them at the deceased, striking him on the chest and back. Both parties had no visible injuries at the time. After a few days, the deceased complained of headaches and chest pains. He was taken to hospital on 29 January 2021 and died on 4 February 2021. The post mortem report listed the cause of death as intracranial haemorrhage, blunt head trauma, and assault.

• 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's actions constituted culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act
• Whether the accused was entitled to rely on self-defence and whether the force used was proportionate
• What is an appropriate sentence for culpable homicide in the circumstances

The accused was found not guilty of murder and found guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 3 years imprisonment wholly suspended for 5 years on condition that he 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.

Where an accused person is under an unlawful attack and responds with force, they may not rely on self-defence if the force deployed is excessive and disproportionate to the threat faced. A person acts negligently and is guilty of culpable homicide where it is objectively foreseeable or within the range of ordinary human experience that their actions would lead to death, and where they either negligently failed to realize that death may result from their conduct, or realizing that death may result, negligently failed to guard against that possibility. The test is whether a reasonable person placed in a similar situation would have avoided acting in the manner the accused did.

The court emphasized the sanctity of human life and stated that society frowns at the taking of another human being's life, and that courts must send a loud and clear message that the killing of a fellow human being will not be tolerated. However, the court also observed that in appropriate cases, particularly where there are substantial mitigating factors such as provocation by the deceased, the accused's ill-health, care responsibilities for elderly relatives, and being a first offender who pleaded guilty, a non-custodial sentence may meet the justice of the case. The court noted that the accused used stones picked at the scene rather than pre-planned weapons, and that both parties had no visible injuries immediately after the altercation, factors which suggested a lower degree of culpability.

This case illustrates the application of the principles of self-defence and proportionality in Zimbabwean criminal law. It demonstrates that while a person may be entitled to defend themselves against an unlawful attack, the use of excessive or disproportionate force negates the defence and may result in criminal liability for culpable homicide rather than murder. The case also shows the court's approach to sentencing in culpable homicide cases where there are significant mitigating factors, including provocation, ill-health, and the accused's role as a caregiver. The judgment emphasizes the sanctity of human life while recognizing that non-custodial sentences may be appropriate in certain circumstances of culpable homicide.