The State v Emmanuel Bhumure

On 5 September 2017 at approximately 1830 hours, the 28-year-old deceased was drinking alcohol at Red Tuck Shop (10km peg along Gweru-Harare highway) with workmates Spencer Masango and Jaffet Marufu. The accused (37 years old) was also present drinking with Prosper Gariyao. A misunderstanding arose between the accused and Prosper. The deceased approached the accused and advised him to stop fighting and arguing with Prosper. The accused was angered by this rebuke and refused to take the advice. The argument deteriorated, and the accused pulled out a flick knife and stabbed the deceased once on the left side of the chest. The deceased screamed, clutched his chest, and collapsed. He was transported by taxi to Gweru General Hospital where he died the following day from the stab wound. The post-mortem revealed the deceased died from haemorrhagic shock, haemopneumothorax, and a stab wound to the heart that perforated the right ventricle. The accused fled the scene and was later apprehended. During the same incident, the accused also stabbed Spencer Masango on the right buttock.

• Whether the accused had the requisite intention for murder (actual vs constructive intent)
• Whether the defence of provocation under section 239 of the Criminal Law Codification and Reform Act was available to the accused
• Whether the defence of self-defence under section 253 of the Criminal Law Codification and Reform Act was available to the accused
• Whether the defence of intoxication was available to the accused
• What constitutes sufficient provocation to make a reasonable person lose self-control
• Whether the use of force was proportionate and necessary in the circumstances

The accused was found guilty of murder with constructive intent and sentenced to 15 years imprisonment. The court considered mitigating factors including that the accused was a first offender with family responsibilities (married with 4 children), was HIV positive, had spent one year in custody pending trial, and tendered apologies. However, the court emphasized the need to protect the sanctity of human life under section 48(1) of the Constitution, the use of a lethal weapon, the reckless and indiscriminate nature of the attack, and the importance of making drinking places safe for citizens.

1. For the defence of provocation under section 239 of the Criminal Law Codification and Reform Act to succeed, the provocation must be sufficient to make a reasonable person in the accused's position and circumstances lose self-control completely. Mild verbal insults such as being called 'provocative' or 'talkative' do not constitute sufficient provocation. 2. For the defence of self-defence under section 253 of the Criminal Law Codification and Reform Act to succeed, there must be: (a) an unlawful attack that has commenced or is imminent; (b) conduct necessary to avert the attack with no other means of escape; and (c) proportionate means used to avert the attack. The defence is not available where the accused is the aggressor or could have simply walked away. 3. Murder with constructive intent (legal intention/dolus eventualis) is established where the accused: (a) has subjective foresight of death as a possibility (not probability); (b) proceeds regardless of the consequences; and (c) acts recklessly. An accused who stabs a victim without directing the blow at any particular body part but aims at the upper body demonstrates the requisite recklessness and foresight.

The court made important observations about public safety in drinking establishments, stating that 'drinking places are being turned into war zones' and that 'citizens are entitled to enjoy their leisure time at bars and such other places in the comfort of the fact that they will not be attacked or harassed by violent patrons.' The court emphasized that while sentences should not be retributive, lengthy custodial sentences are appropriate for violent crimes committed in public places. The court also noted that the accused's marriage had broken down as a direct consequence of the offence, with his wife leaving to live with her parents, demonstrating the wider social consequences of criminal conduct beyond the direct victims. The court observed that the accused raised false defences (particularly the claim that the deceased grabbed his testicles) in an attempt to avoid consequences, which went against him in sentencing considerations.

This case demonstrates the Zimbabwean courts' application of the codified defences of provocation and self-defence under the Criminal Law Codification and Reform Act. It establishes important principles regarding what constitutes sufficient provocation for a reasonable person to lose self-control, and when the defence of self-defence is available. The case reinforces that verbal insults of a mild nature do not constitute sufficient provocation, and that self-defence requires a genuine unlawful attack with proportionate response. The judgment emphasizes the constitutional protection of the right to life under section 48(1) of the Constitution of Zimbabwe Amendment (No 20) 2013, and the courts' duty to impose sentences that protect public safety, particularly in drinking establishments. It also illustrates the distinction between actual intent (dolus directus) and constructive/legal intent (dolus eventualis) in murder cases, confirming that reckless conduct causing death where the perpetrator foresees death as a possibility constitutes murder with constructive intent.