On 1 March 2013, at approximately 1945 hours, the accused Irvene Moyo (aged 22) and the deceased Charlton Ncube (aged 23) were at Dufuya Bar in Lower Gweru. The deceased was drunk and snatched two strops from the accused's pocket, questioning why he had them at that time of day. A misunderstanding ensued but was resolved when the deceased returned the strops. The deceased later walked out of the bar and called the accused, who ignored him. The deceased then pulled the accused and struck him with a fist on the mouth, causing the accused to fall. The deceased produced a knife and chased another person who tried to intervene. When the deceased returned and walked towards the bar, the accused picked up a stone and threw it at him, striking him on the left side of the head above the left ear. The deceased fell to the ground and died within minutes from the injuries sustained.
The accused was found not guilty of murder but convicted of the lesser charge of culpable homicide. He was sentenced to 5 years imprisonment, with 3 years suspended for 5 years on condition that he does not commit any offence involving violence during that period for which he would be sentenced to imprisonment without the option of a fine.
Where an accused person causes death through the throwing of a stone at the deceased's head but lacks the requisite intention to kill, the appropriate conviction is culpable homicide rather than murder. The determination turns on whether the accused acted negligently rather than with dolus (intent to kill). Even where the deceased initiated the altercation and assaulted the accused first, if the immediate threat has subsided (through third-party intervention) and the accused subsequently retaliates causing death, this constitutes negligent rather than intentional conduct warranting conviction for culpable homicide.
The court made strong observations about the prevalence of violence in society, stating: "Violence is now the norm in our society rather than the exception." The court urged society to heed the continued pleas by the courts for people to desist from any form of violence. These observations, while not necessary for the decision, reflect judicial concern about societal trends toward violence and the need for public awareness and behavioral change. The court also commented on the 5-year delay in bringing the accused to justice, treating this as a significant mitigating factor, though without making binding pronouncements on acceptable timeframes for prosecution.
This case illustrates the Zimbabwean courts' application of culpable homicide principles where death results from negligent conduct rather than intentional killing. It demonstrates the court's approach to differentiating between murder and culpable homicide based on the accused's mental state and the circumstances of the killing. The case also reflects the courts' ongoing concern about the normalization of violence in society and the need for deterrent sentences while balancing individual mitigating circumstances, including delays in the criminal justice system. The acceptance of a limited plea and the structured approach to sentencing culpable homicide cases provides guidance on factors courts consider in such matters.