The State v Lucas Chawatama

On 12 April 2021, at Village 24, Mukosi Resettlement Scheme, Chief Nyajena Masvingo, the accused and the deceased (his brother-in-law, both aged 46) attended a communal gathering ("nhimbe") where villagers harvested rapoko and drank beer. After the gathering, the accused and the deceased's son Taruvinga Chikunda had a misunderstanding which resulted in a fight. Taruvinga reported the assault to his father (the deceased), who then teamed up with his son to confront the accused. During the ensuing altercation, the accused stabbed the deceased once in the neck with a knife, killing him instantly. Taruvinga's finger was also cut. The post-mortem revealed a single stab wound on the left carotid area, 1cm wide and 3cm deep, which severed the carotid artery, causing haemorrhagic shock and death. Both the accused and Taruvinga were intoxicated and could not coherently explain the cause of their initial altercation or provide clear accounts of how the stabbing occurred.

• Whether the accused acted in self-defence as provided for in section 253 of the Criminal Law (Codification and Reformed) Act
• Whether the means used by the accused to defend himself were reasonable and proportionate to the unlawful attack
• Whether the accused should be convicted of murder or the lesser offence of culpable homicide

Verdict: Not guilty of murder, but guilty of culpable homicide in contravention of section 49 of the Criminal Law (Codification and Reformed) Act [Chapter 9:23]. Sentence: 3 years imprisonment, of which 1 year is suspended for 5 years on condition the accused does not commit any offence involving violence upon another person or negligently causing death through violent conduct during that period, for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 2 years imprisonment.

Where an accused person uses force to defend himself from an unlawful attack but the means used are unreasonable and disproportionate to the attack, the complete defence of self-defence under section 253 of the Criminal Law (Codification and Reformed) Act is not available. However, a partial defence under section 254 may apply, reducing murder to culpable homicide where the accused was negligent in the manner of his defence. The use of a knife to stab a vital area such as the neck with severe force (severing the carotid artery) when defending against throttling and pulling of private parts constitutes unreasonable and disproportionate force, even where the initial attack was unlawful.

The court observed that the deceased was equally to blame for the tragic incident, as he should not have sought to resolve a minor dispute in a violent manner and became entangled in a dispute essentially between his son and the accused. The court noted that the accused would live with the stigma of having his brother-in-law's blood on his hands, which may weigh heavily on his conscience. In sentencing, the court emphasized that life is sacrosanct and that knives are lethal weapons. The court also considered mitigating factors including that the accused was a first offender, showed contrition, contributed to funeral expenses, paid seven beasts in compensation, and had five children (four minors) who relied on his labor.

This case illustrates the application of the partial defence to murder in Zimbabwean criminal law, particularly regarding self-defence that fails to meet the requirements of reasonableness and proportionality under section 253 of the Criminal Law (Codification and Reformed) Act. It demonstrates how courts assess the distinction between complete self-defence (which absolves criminal liability) and partial self-defence (which reduces murder to culpable homicide under section 254). The case also addresses the use of lethal weapons in self-defence situations and emphasizes the principle that while individuals have the right to defend themselves, they must do so in a manner that is reasonable and proportionate to the attack they face.