The State v Gerald Tshuma

On 14 September 2023, the accused stabbed the deceased to death at Progress Kiosk, Purpose Mine Esigodini. The State's case was that the accused arrived at the kiosk where the deceased was already seated on the veranda. Without any prior exchanges, the accused suddenly attacked and stabbed the deceased, uttering obscenities and stating he would kill him. The accused then fled into the darkness. State witnesses included Portia Ngwenya (the kiosk owner who witnessed the stabbing), her husband Promise Mpofu (who was awakened during the incident), and Dedani Moyo (who was present at the scene). The deceased died shortly thereafter. The accused fled and was arrested approximately a week later in Gweru rural area. The accused raised a defence of self-defence, claiming the deceased had attacked him first, kicked his beers, throttled him, and threatened him with a knife, which he grabbed and used to stab the deceased. The accused was married with two children and a first offender. His family paid compensation of USD 3,500 to the deceased's family, including cattle.

• Whether the accused murdered the deceased with actual intent
• Whether the accused acted in self-defence as provided for in section 253 of the Criminal Law Code
• What is the appropriate sentence for murder with actual intent considering mitigating factors

The accused was found guilty of murder with actual intent and sentenced to 20 years' imprisonment.

The binding legal principle established is that the defence of self-defence under section 253 of the Criminal Law Code is only available to a person who was the victim of an unlawful attack and who then defended himself or herself. An accused person who was the initial aggressor cannot rely on this defence. The requirements for self-defence include: (1) the defence must be directed against the attacker; (2) the defence must be necessary to avert the attack; and (3) the means used must be reasonable in the circumstances. An accused who initiates violence cannot turn around and claim to be acting in self-defence when the victim responds or when the accused inflicts harm on the victim.

The court made obiter observations on sentencing principles in murder cases, noting that while sentences should be fair and just rather than excessive, savage and draconian, and should be blended with mercy (citing S v [case name] 1972 (3) SA 611 (A) at 614), any leniency extended to an accused must be founded on acceptable principles and must not lead to injustice. The court also observed that payment of compensation to the deceased's family, while demonstrating remorse, cannot bring back the deceased or fully address the harm caused to the deceased's children who will remain fatherless. The court referenced S v Mukumba and Another HH276/2023 for the principle that people should not take the law into their own hands.

This case clarifies the application of the defence of self-defence under section 253 of the Criminal Law Code in Zimbabwean criminal law. It establishes that an accused person who was the initial aggressor cannot benefit from the statutory defence of self-defence. The case also demonstrates the approach to sentencing in murder cases where there are significant mitigating factors including compensation paid to the victim's family, the accused being a first offender, and genuine remorse, while maintaining that such factors cannot override the need for a sentence that reflects the gravity of unlawfully taking a human life. The judgment reinforces the principle that citizens must not take the law into their own hands.