The State v Kudakwashe Mtethwa

On 30 January 2009, the 28-year-old accused was charged with two counts of murder. The first deceased was Meck Mtethwa (66 years old), the accused's biological father, and the second deceased was Freddy Mtethwa (23 years old), his half-brother in a polygamous marriage. The incident occurred at the family homestead in village Chikwangwadza, Chief Nyamhondo, Mberengwa Communal Lands. The accused brought food to him by his wife but instructed his half-sister Charity to return it. When Charity went to pick up the plates, the accused scratched her with a knife on her chest and then assaulted her with a sjambok. When the father (first deceased) intervened and asked the accused about the knife, the accused stabbed him multiple times (8 times) in the chest and left armpit area. When the second deceased tried to restrain the accused, he was stabbed once in the abdomen with a 7cm wound causing intestines to protrude. The accused gave three different versions of events: an initial confession to police admitting the stabbings, a defense outline claiming self-defense and intoxication, and testimony denying his confession and defense outline.

• Whether the accused had the requisite intent to commit murder
• Whether the accused acted in self-defense
• Whether intoxication negated criminal capacity or intent
• Whether there were extenuating circumstances warranting a sentence other than death
• Assessment of credibility where the accused gave multiple conflicting versions

The accused was found guilty of murder with actual intent on both counts. The court sentenced the accused to death on both Count One (murder of Meck Mtethwa) and Count Two (murder of Freddy Mtethwa), with the sentence to be executed according to law.

Where an accused gives multiple conflicting versions of events, the court is entitled to prefer the version given closest in time to the events, particularly a confirmed extra-curial statement made when matters were fresh in the accused's mind. The infliction of multiple stab wounds to vulnerable parts of the body (8 stab wounds to the chest and a 7cm abdominal wound causing intestines to protrude) is sufficient evidence from which to infer actual intent to kill. Brutal, unprovoked attacks on family members using lethal weapons, where the accused was prepared to use violence, do not constitute extenuating circumstances. Where there are no extenuating circumstances in a murder case, the death penalty is the appropriate sentence under Zimbabwean law.

The court observed that the accused fared very badly when giving viva voce evidence and was clearly being untruthful and not worth believing. The court noted that the accused went so far as to deny that he had made his confirmed extra-curial statement, claiming it was a creation of the police, and even denied instructing his lawyer regarding the contents of his defense outline. The court commented that although the crimes may not have been premeditated, they were nevertheless committed in circumstances showing no extenuation. The court noted that the accused was carrying both a knife and a sjambok on his person, indicating he was prepared to use weapons in case of trouble.

This case is significant in Zimbabwean criminal law for its application of principles regarding: (1) the assessment of credibility where an accused gives multiple contradictory versions of events; (2) the weight to be given to confirmed extra-curial statements made when events are fresh versus later defenses raised; (3) the inference of intent to kill from the nature, location and severity of stab wounds; (4) the rejection of self-defense claims where there is no evidence of provocation or aggression by the deceased; (5) the stringent test for finding extenuating circumstances in murder cases involving brutal, unprovoked attacks on family members; and (6) the imposition of the death penalty where no extenuating circumstances are found. The case demonstrates the court's approach to cases involving intra-familial violence and murder.