The State v Elizabeth Mbulayi

The accused and the deceased, Simbarashe Denhere, had been cohabiting as husband and wife for 6 years in a tumultuous relationship characterized by frequent fights over suspected infidelity. On 26 December 2013, after a day of drinking, the accused and deceased returned home moderately intoxicated at around 3:00 am. In their bedroom, they started quarrelling which escalated into a physical fight. A co-tenant, Munyaradzi Gwezuva, intervened and broke up the fight by positioning himself between them. While Munyaradzi held the accused down after she bit him on the neck, the accused grabbed a kitchen knife from a nearby table and, jumping over Munyaradzi, stabbed the deceased once in the left side of the chest. The deceased died from his injuries on the way to the hospital before the ambulance arrived. The knife penetrated the chest, cut through cartilage, and injured the aorta, causing massive internal bleeding.

• Whether the accused had the requisite intention to commit murder
• Whether the accused acted in self-defence as provided for in section 252-253 of the Criminal Law (Codification and Reform) Act
• Whether the accused was provoked to the extent that she lost self-control as contemplated in section 239 of the Code
• Whether voluntary intoxication negated the mens rea for murder under section 221 of the Code

The accused was convicted of murder with constructive intent in contravention of section 47(1)(b) of the Criminal Law (Codification and Reform) Act Chapter 9:23 and sentenced to 17 years imprisonment.

Self-defence under sections 252-253 of the Criminal Law (Codification and Reform) Act is not available where: (1) the unlawful attack had ceased when the defensive act was committed; (2) the accused had a reasonable opportunity to escape; (3) the means used were disproportionate to the threat; and (4) injury was caused to an innocent third party. Provocation under section 239 requires that the accused completely lost self-control and that a reasonable person in the accused's position would have lost self-control; contradictory evidence and conduct demonstrating retention of faculties negates this defence. Voluntary intoxication under section 221 does not negate mens rea where the accused was only moderately intoxicated and exhibited conduct demonstrating capacity to form the requisite intention. Murder with constructive intent is established under section 47(1)(b) where the accused realized there was a real risk that death may result from the conduct but continued regardless.

The court observed that there has been an alarming upsurge in murder cases arising from domestic violence over suspected infidelity. The court stated that where a marriage is frequently punctuated by violence, the appropriate remedy is divorce rather than taking the law into one's hands. The court noted the irony that the accused changed from lover to killer, demonstrating that "between love and hate, the dividing line is very thin indeed." The court emphasized its duty to uphold the sanctity of human life and to impose suitable deterrent penalties to curb such criminality among members of the public. The court also noted that character evidence is generally inadmissible.

This case illustrates the Zimbabwean courts' approach to domestic violence murders and the application of defences of self-defence, provocation, and intoxication under the Criminal Law (Codification and Reform) Act. The judgment emphasizes that the courts will impose deterrent sentences for murders arising from domestic violence over suspected infidelity, and that violence is not an acceptable means of enforcing sexual morality in relationships. The case demonstrates the stringent requirements for establishing self-defence, particularly the need for proportionality and the unavailability of escape. It also illustrates that voluntary intoxication will not constitute a defence where the accused retained sufficient capacity to form the requisite intention.