The State v Mqondisi Tshuma

On 17 July 2021, a traditional ceremony was held at Finito Ndlovu's homestead. The accused, aged 20 years, attended the ceremony uninvited. Around 4 a.m., the accused began misbehaving by opening pots and pouring beer into pots containing food. Finito Ndlovu instructed the deceased (Gift Ndlovu) and Lungisani Ndlovu to remove the accused from the homestead. As they attempted to remove him, the accused slapped the deceased twice with an open hand, then ran away to the bush. He returned running very fast, removed a press button knife from his pocket, and stabbed the deceased once in the stomach below the ribs on the left side. The deceased fell to the ground groaning and later died. The accused returned from the bush again, surrendered his knife, and apologised, saying he had wanted to stab the deceased on the buttocks. The post-mortem report showed that the deceased suffered a stab wound penetrating the abdominal cavity, causing abundant free blood in the abdominal cavity and laceration of intestines, leading to hypovolemic shock and death.

• Whether the accused unlawfully caused the death of the deceased
• Whether the accused had the requisite intention for murder
• Whether the defence of private defence (self-defence) was available to the accused under section 253 of the Criminal Law (Codification and Reform) Act
• Whether the accused should be convicted of murder with constructive intent under section 47(1)(b) of the Criminal Law (Codification and Reform) Act
• What is an appropriate sentence for a youthful first offender convicted of murder with constructive intent

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (murder with constructive intent). He was sentenced to 10 years imprisonment.

An accused cannot successfully raise the defence of private defence under section 253 of the Criminal Law (Codification and Reform) Act where: (1) he was not under an unlawful attack at the time of the fatal act; (2) he had escaped from any prior confrontation; and (3) he was the aggressor who returned armed to inflict violence. To establish murder with constructive intent under section 47(1)(b) of the Criminal Law (Codification and Reform) Act, the State must prove beyond reasonable doubt that the accused realized there was a real risk or possibility that his conduct may cause death but continued to engage in such conduct despite that awareness. Evidence that the accused used a lethal weapon to stab the victim in a delicate part of the body with severe force is sufficient to establish such realization. Recent fabrications and material inconsistencies between an accused's confirmed statement, defence outline, and testimony undermine credibility and may lead to rejection of the accused's version.

The court emphasized that society frowns upon the taking of another human being's life and that courts must send a loud and clear message that killing of a fellow human being will not be tolerated. The court noted that the prevalence of murder is such that cognisance is sometimes lost of the extreme consequences that flow from it - not only is a life ended, but the lives of family and friends are irreparably altered and damaged. The court observed that while the accused's youth, first offender status, and remorse (shown by returning, surrendering the knife, and apologizing) were mitigating factors, he could not be spared imprisonment given the gravity of the offence. The court noted that should a witness's account not be disputed in cross-examination, it indicates an acceptance of the evidence, which may be equated with tacit admission such that the evidence cannot later be doubted.

This case provides guidance on the application of the defence of private defence under section 253 of the Criminal Law (Codification and Reform) Act in Zimbabwe. It establishes that an accused cannot successfully invoke private defence where he was the aggressor and not under any attack at the time of the fatal act, even if he claims to have been assaulted earlier. The case also illustrates the court's approach to assessing credibility where an accused's versions differ across confirmed statements, defence outlines, and testimony. It demonstrates the application of the test for murder with constructive intent under section 47(1)(b), requiring proof that the accused foresaw death as a real risk or possibility but proceeded regardless. The case also shows the court's approach to sentencing youthful first offenders for serious crimes, balancing the gravity of murder against mitigating factors including youth, remorse, and lack of prior convictions.