The State v Esther Mapisa

The accused, an 18-year-old woman, was charged with murder under section 47 of the Criminal Law (Codification and Reform) Act. After a brief courtship, the deceased and church members approached the accused's grandmother with a marriage proposal in the Johanne Masowe Church tradition. A customary marriage ceremony was eventually conducted on 26 April 2011, although the accused claimed she had not genuinely consented and was coerced by her mother and grandmother. After the marriage, the accused was handed over to the deceased's home. She claimed the deceased raped her on four occasions. One week after the handover ceremony, the accused visited her grandmother in Kotwa for two nights. Upon her return to the matrimonial home on 9 May 2011, she prepared a meal for the deceased and laced it with termite killer poison she had taken from her grandmother's home. The deceased complained of a bitter taste, began vomiting, and died the following day at Kotwa hospital. A cat that ate the discarded food also died. The accused initially pleaded guilty but a not guilty plea was entered due to the charge being murder.

• Whether the accused had the requisite intention to kill (dolus directus) under section 47(1)(a) of the Criminal Law (Codification and Reform) Act
• Whether the accused acted in self-defence under section 253 of the Code
• Whether the defence of 'battered woman syndrome' applies in circumstances of repeated rape in marriage
• Whether the means used by the accused were reasonable and necessary to avert unlawful attack
• Whether forced marriage and marital rape constitute circumstances justifying homicide

The accused was found guilty of contravening section 47(1)(a) of the Criminal Law (Codification and Reform) Act - murder with actual intention to kill (dolus directus).

For self-defence under section 253 of the Criminal Law (Codification and Reform) Act to succeed as a complete defence to murder, the following requirements must be met: (1) the unlawful attack must have commenced or be imminent at the time of the defensive act; (2) the accused's conduct must be necessary to avert the attack and there must be no other means of escape; (3) the means used must be reasonable in all circumstances; and (4) any harm caused must not be grossly disproportionate to the harm threatened by the attack. Self-defence cannot be invoked where the accused had available alternatives to avoid the threatened harm, such as leaving the situation. Poisoning food when not under imminent attack, where the accused could have simply left the matrimonial home, does not satisfy the requirements of necessity and reasonabliness for self-defence, even in the context of alleged prior sexual violence.

The court made several non-binding observations: (1) The charge was not drafted with precision as it wrapped elements of both section 47(1)(a) and (b) in an omnibus approach, though no prejudice resulted; (2) The court criticized the State's failure to conduct forensic examination of the poison samples due to 'financial constraints,' questioning what such costs mean compared to the quest for justice; (3) The court noted that a witness subpoenaed to court should only be dismissed by the presiding officer, not by the prosecutor, in accordance with section 231 of the Criminal Procedure and Evidence Act; (4) The court acknowledged the prevalence of forced marriages, especially within certain churches, and noted that perpetrators of such acts are rarely held accountable; (5) The court observed that until the enactment of the Code, it was inconceivable in Zimbabwean law that a husband could rape his wife, implicitly recognizing the progressive nature of the codified law on marital rape; (6) The court noted that 'battered woman syndrome' is gaining currency as a defence but observed there is no medical classification to support its existence as a syndrome and no consensus in the medical profession that abuse results in a mental condition severe enough to excuse alleged offenders; (7) The court expressed understanding of the accused's predicament in not reporting rape to her grandmother, given traditional attitudes about conjugal rights in marriage.

This case is significant in Zimbabwean criminal law for several reasons: (1) It addresses the defence of self-defence in the context of domestic violence and alleged marital rape; (2) It considers the applicability of 'battered woman syndrome' as a defence in Zimbabwean law, acknowledging the concept but finding it inapplicable on the facts; (3) It confirms that marital rape is recognized as a crime under the Criminal Law (Codification and Reform) Act; (4) It clarifies the requirements for self-defence under section 253 of the Code, particularly the requirements of imminence, necessity, and proportionality; (5) It demonstrates judicial recognition of the complexities surrounding forced marriage and consent in traditional and religious contexts, while maintaining that such circumstances do not justify homicide where other options are available; (6) The case highlights tensions between customary marriage practices and individual autonomy, particularly for young women.