The State v Lakela Sweswe

The accused, a 23-year-old female, was married to the deceased, aged 33 years, for 3 years. Two children were born of the union. The marriage was troubled, with the accused alleging frequent physical abuse by the deceased, which she had reported to Hillside Police Station on several occasions. On 8 June 2016 at around 1am, the deceased came home drunk and assaulted the accused. The accused claims the deceased tried to stab her with a kitchen knife during the altercation. The knife fell to the floor and the deceased briefly left the bedroom. The accused picked up the knife and waited behind the door. When the deceased returned and attempted to enter the bedroom, she stabbed him once in the neck with a kitchen knife measuring 24cm in length. The deceased collapsed, bleeding profusely. The accused poured water on him and went to bed. The next morning she discovered he was dead. After two days, she dragged the body to a disused room, covered it with a blanket, doused it with paraffin and set it alight. She then fled to the residence of the deceased's uncle, George Ncube, claiming the deceased had gone to South Africa. She was eventually handed over to police at Hillside Police Station.

• Whether the accused had the requisite intention (mens rea) for murder with actual intent
• Whether the defence of self-defence was available to the accused under section 253 of the Criminal Procedure and Evidence Act
• Whether the accused acted with actual intention (dolus directus) or legal intention (dolus eventualis) as defined in section 47(1)(a) of the Criminal Code
• The relevance of 'battered woman syndrome' and history of domestic violence in assessing criminal liability and sentencing

The accused was found guilty of murder with constructive intent and sentenced to 18 years imprisonment.

The defence of self-defence under section 253 of the Criminal Procedure and Evidence Act requires that an unlawful attack has commenced or is imminent, or that the accused believed on reasonable grounds that such attack had commenced or was imminent. The conduct must be necessary to avert the attack, and the means used must be reasonable and proportionate. Where an accused is not under imminent attack but waits and pounces on the victim, self-defence is not available. For murder with actual intention under section 47(1)(a) of the Criminal Code, the accused must intend to cause death or foresee that death is substantially certain to occur. Murder with constructive intent (dolus eventualis) applies where the accused does not have actual intention but realizes there is a real risk that death could result. The history of domestic violence and 'battered woman syndrome' are relevant considerations in assessing mens rea and in sentencing, though they do not constitute a complete defence where the elements of the offence are established.

Makonese J made observations about the scourge of domestic violence in society, noting that women suffer extreme levels of violence and emotional and physical abuse. The judge referenced the remarks of Tsanga J in State v Robert Tevedzai HH-206-18 regarding domestic violence. The court emphasized that while it does not condone violence in any form, the circumstances of domestic abuse bring into sharp focus the need to address this societal problem. The judge noted the existence of the Domestic Violence Act (Chapter 5:16) enacted to deal with domestic violence. The court observed that the accused was not a typical unsophisticated person but was educated to Ordinary level, articulate and able to narrate her version logically. The court also noted that the post-mortem examination was hampered by the fact that the body had been burnt beyond recognition, though haemorrhagic infiltration around the neck muscles was detected.

This case is significant in Zimbabwean criminal jurisprudence for its recognition of the 'battered woman syndrome' and the context of domestic violence as relevant factors in assessing criminal liability and sentencing, even where self-defence is not established. The judgment highlights the distinction between actual intention (dolus directus) and legal/constructive intention (dolus eventualis) in murder cases. It demonstrates the courts' willingness to consider the background of domestic abuse as a mitigating factor in sentencing, while maintaining that taking the law into one's own hands cannot be condoned. The case emphasizes the importance of the Domestic Violence Act and brings into sharp focus the scourge of domestic violence in society.