The State v Justin Ndlovu

On 20 June 2021 in Braeside, Harare, the accused and the deceased (Simbarashe Muzividzi) were drinking beer with colleagues. The deceased, who was heavily intoxicated and known as an alcoholic, became belligerent and demanded respect from the accused, claiming to be older. The deceased pushed and slapped the accused. Fearing further assault (as the deceased had a beer bottle), the accused slapped the deceased twice on the face and pushed him slightly to fend him off. The deceased staggered backwards and fell heavily, hitting his head on the hard ground. Later that evening, the deceased was arrested by police for robbery. Around 2200 hours, police noticed he was unwell (vomiting, unable to speak) and took him to Harare Hospital. He was later transferred to Parirenyatwa Hospital for a scheduled head operation. He died on 3 July 2021. The post-mortem showed death was due to intracranial hypertension, right parieto-temporal subdural hematoma and severe head injury. The accused and deceased were acquaintances with no prior bad blood between them.

• Whether the accused caused the death of the deceased with intent to kill or realising the real risk or possibility of death (murder)
• Whether the accused negligently caused the death of the deceased by failing to foresee that death might result from his conduct (culpable homicide)
• Whether a reasonable person could have foreseen that slapping and pushing the deceased could result in death
• The distinction between the intention to assault and the negligent failure to foresee death resulting from that assault

The accused was found not guilty and acquitted of murder. The accused was found guilty of the permissible verdict of assault as defined in s 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

For a conviction of culpable homicide based on an assault, it is insufficient to prove only that the accused intentionally assaulted the victim who subsequently died. The state must additionally prove that the accused negligently failed to foresee that death might result from the assault, or having foreseen the possibility, negligently failed to guard against it. The negligent failure to foresee death is a separate and distinct element from the intention to assault. Where a common assault involves minimal force (such as slapping with open hands and a slight push) on ordinary ground, a reasonable person could not be expected to foresee that such conduct would result in death. In such circumstances, even where death tragically results, the requirements for culpable homicide are not satisfied, though the accused may be convicted of the lesser offense of assault as a competent verdict.

The court observed that not every death resulting from an altercation must result in a murder charge, cautioning against reflexive charging decisions. Mutevedzi J noted that the deceased appeared to be a person "followed by controversy" and suggested the victim had "placed himself in harm's way" by being hopelessly drunk and aggressive, though the court clarified this did not mean he deserved harm. The court also commented on the problematic police conduct in arresting and detaining the injured deceased for suspected robbery rather than obtaining medical assistance, which may have contributed to the fatal outcome. The judgment criticizes the prosecution for allowing its judgment to be "clouded by the failure to distinguish the intention to assault from the failure to reasonably foresee death occurring as a result of that assault."

This case is significant in Zimbabwean criminal law (applicable to South African legal analysis due to shared common law heritage) as it clarifies the distinction between intentional assault and culpable homicide. It establishes that where death results from an intentional assault, conviction for culpable homicide requires proof that the accused negligently failed to foresee the possibility of death, not merely proof of the intentional assault. The case emphasizes that the mental element for culpable homicide is negligence regarding the consequence of death, separate from the intention to commit the underlying assault. It illustrates the application of the doctrine of competent verdicts where evidence fails to establish the charged offense but proves a lesser included offense.