The State v Faresi Manyowa

On 25 April 2007 at approximately 19h00, the accused, Faresi Manyowa, was involved in a domestic altercation with her husband, Stewart Pilate Mhlanga (the deceased). The couple had a history of domestic violence, with the deceased regularly physically abusing the accused, causing her to flee to her parents' home on at least five occasions. On the day in question, an argument arose when the deceased, who was debt-ridden, refused to answer a knock at the door and sent the accused instead. After the accused returned from delivering a message to her sister-in-law (who shared the same house), the deceased assaulted her. The sister-in-law, Mary Mudyanebanga, intervened briefly but the assault resumed after she left. During the attack, the deceased struck the accused, knocked her down, trapped her head between his legs, and pulled out her braided artificial hair, causing her excruciating pain. The accused first struck him with a cooking stick without effect, then reached for what she claimed she thought was another cooking stick but was actually a kitchen knife. She stabbed the deceased twice - once on the left side of the chest and fatally on the neck. The deceased released her, threatened to kill her if he caught her, and she fled to a neighbour's house still clutching the knife. The deceased was found lying dead outside the house in a pool of blood.

• Whether the accused was guilty of murder as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Whether the accused acted in lawful self-defence
• Whether the accused used excessive force in defending herself
• Whether the accused's claimed mistake of fact regarding the weapon she picked up was credible
• Whether the accused was guilty of culpable homicide under section 49(a) of the Criminal Law (Codification and Reform) Act

The accused was found not guilty of contravening section 47(1)(b) of the Criminal Law (Codification and Reform) Act (murder) but guilty of contravening section 49(a) of the Criminal Law (Codification and Reform) Act (culpable homicide).

Where an accused acts in self-defence in response to a physical attack but uses more force than reasonably necessary in the circumstances - specifically by using a deadly weapon (knife) with a fatal stabbing blow to the neck without warning - and fails to realize the risk that such action may result in fatal injuries, such failure constitutes negligence. In such circumstances, the accused cannot be convicted of murder under section 47(1)(b) of the Criminal Law (Codification and Reform) Act but is guilty of culpable homicide under section 49(a) of the Act. The test is objective: what would a reasonable person in the accused's position have realized regarding the risk of fatal injury, regardless of whether the accused subjectively appreciated that risk.

The court made observations about the credibility of the accused's evidence, noting inconsistencies regarding the lighting in the room and her claim of mistake of fact about the weapon. The court observed that the accused's immediate statement to the neighbour that "she had stabbed him" was inconsistent with a genuine belief that she had used a cooking stick. The court also noted that stabbing in common parlance is associated with sharp instruments rather than blunt ones, and that the nature of the wound was consistent with a stabbing motion rather than a striking blow. These observations informed the court's assessment of credibility but went beyond what was strictly necessary for the legal determination. The court also acknowledged the history of domestic violence and the lack of luxury of choice available to the accused in the midst of a murderous attack, showing some sympathy for her position while still applying the law regarding excessive force.

This case is significant in Zimbabwean criminal law jurisprudence as it illustrates the application of self-defence principles in the context of domestic violence. It demonstrates how courts assess the reasonableness and proportionality of force used in self-defence situations, particularly where there is a history of domestic abuse. The case clarifies that even where self-defence is established, the use of excessive force or negligent failure to appreciate the risk of fatal injury can reduce a murder charge to culpable homicide. It also demonstrates judicial scrutiny of claims of mistake of fact and the court's willingness to reject implausible defences while still recognizing mitigating circumstances arising from domestic abuse.