The State v Khulekani Ndlovu

On 14 January 2021 at around 1930 hours in Nyamazana Area, Tsholotsho, the deceased Ephraim Ndlovu (aged 26) and his cousin Hazel Moyo set out to confront the accused (aged 22) regarding an earlier assault by the accused on Hazel Moyo. Hazel Moyo was armed with a knobkerrie. They caught up with the accused along a footpath. The deceased grabbed the accused by the collar and demanded to know why he had assaulted Hazel Moyo. Hazel Moyo then struck the accused once on the shoulder with the knobkerrie. In response, the accused removed an okapi knife from his pocket and stabbed the deceased once in the chest. The deceased bled profusely, collapsed on the ground and died on the spot. The post mortem report showed the stab wound caused a fracture of the 3rd costal arch, laceration of the upper lobe of the lungs, and cardiac and pulmonary laceration, resulting in acute anemia and death.

• Whether the accused was guilty of murder as charged
• Whether the accused acted in private defence when he stabbed the deceased
• Whether the force used by the accused in self-defence was reasonable and proportionate
• Whether the accused acted negligently in causing the death of the deceased, thereby constituting culpable homicide

The accused was found not guilty of murder but guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 6 years imprisonment, of which 2 years was suspended for 5 years on condition that he does not commit an offence involving assault or physical violence on another person during that period, for which he is sentenced to imprisonment without the option of a fine.

Where an accused person acts in private defence against an unlawful attack but uses excessive and disproportionate force, resulting in death, he cannot be convicted of murder but may be convicted of culpable homicide. When an accused uses a lethal weapon to stab a victim in a delicate part of the body (the chest) with such force as to cause severe internal injuries including lung, cardiac and pulmonary laceration, in response to being struck once with a knobkerrie on the shoulder, this constitutes the use of excessive and disproportionate force. The test is whether a reasonable person placed in similar circumstances would have avoided acting in the manner the accused did. If death was objectively foreseeable from the accused's conduct and the accused negligently failed to realize or guard against that possibility, this constitutes culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The court emphasized the sanctity of human life and stated that society frowns upon the taking of another human being's life. The court noted that it must send a loud and clear message that the killing of a fellow human being will not be tolerated. The court observed that the type of violence displayed by the accused - using a lethal weapon with excessive force causing deep penetration and severe internal injuries - is unacceptable. The court also took into consideration mitigating factors including that the accused was a youthful first offender (23 years old), married with a pregnant wife and one minor child, had no savings or assets, had been in custody for approximately two weeks before trial, pleaded guilty to culpable homicide, and was defending himself against the deceased and Hazel Moyo when the incident occurred.

This case illustrates the application of the principle of private defence in Zimbabwean criminal law and the limits thereof. It demonstrates that while an accused person may be entitled to defend themselves against an unlawful attack, the use of excessive and disproportionate force in self-defence can negate a murder charge but still result in a conviction for culpable homicide. The case reinforces the principle that the right to self-defence does not extend to the use of lethal force that is disproportionate to the threat faced. It also emphasizes the courts' role in upholding the sanctity of human life while balancing mitigating factors such as provocation and self-defence. The judgment provides guidance on sentencing in culpable homicide cases where private defence is partially established but excessive force was used.