The State v Mxolisi Ncube

On 15 October 2022, the accused Mxolisi Ncube stabbed the deceased Muzwiwake Sibanda once with a knife, causing injuries from which the deceased died. The accused did not dispute that he stabbed the deceased and caused the fatal injuries. The accused's version was that he intervened when the deceased was about to assault a young man, and the deceased then turned his aggression towards the accused while armed with a knife. The accused claimed he managed to seize the knife from the deceased and stabbed him in self-defence. The State witness Amkele Mguni (uncle of the deceased) testified that the accused confronted the deceased over allegations that the deceased was involved in a romantic relationship with the accused's girlfriend, and that the accused produced a knife and stabbed the deceased outside a shop. The accused was pursued by members of the public, apprehended, and brought back. The accused had been in custody for three years awaiting trial.

• Whether the accused acted in self-defence when he stabbed the deceased
• Whether the requirements for a complete defence under section 253 of the Criminal Law (Codification & Reform) Act were satisfied
• Whether the means used by the accused to avert the unlawful attack were reasonable in all the circumstances
• Whether a conviction for culpable homicide was appropriate under section 254 of the Criminal Code
• Assessment of the credibility of a single State witness
• Appropriate sentence for culpable homicide in circumstances involving self-defence

The accused was found not guilty of murder but guilty of culpable homicide. He was sentenced to 2 years imprisonment (being 5 years imprisonment less 3 years already served in pre-trial custody).

Where an accused person is defending himself against an unlawful attack and successfully disarms his attacker, the attacker is no longer a danger once disarmed, and the use of the seized weapon to stab the now-disarmed attacker is not reasonable in the circumstances. While this satisfies most requirements for self-defence under section 253 of the Criminal Law (Codification & Reform) Act, the unreasonableness of the means used results in a partial defence under section 254, reducing murder to culpable homicide. In assessing the credibility of a single witness who is a relative of the deceased, courts must exercise caution, particularly where the witness introduces material allegations at trial (such as the cause of the dispute) that were never mentioned during the investigation. Where such evidence creates reasonable doubt, the court must accept the accused's version of events.

The court observed that had the accused been properly charged with culpable homicide from the outset rather than murder, his defence would have amounted to a plea of guilty to culpable homicide, potentially avoiding the three-year pre-trial detention. The court noted that culpable homicide is a very serious offence involving the reckless loss of life, and prosecution is necessary to protect human life. The court distinguished the case from State v Gladys Mutopa HB 127-17 where a 65-year-old accused received a wholly suspended sentence, noting that the present accused was a young man who had a "sinister contribution" to the offence by engaging in a fight with the deceased. The court emphasized that the State's decision to prosecute for murder rather than culpable homicide contributed to the accused's lengthy incarceration while awaiting trial.

This case illustrates the application of the statutory defence of self-defence under Part XIII of the Criminal Law (Codification & Reform) Act [Chapter 9:23] in Zimbabwe. It demonstrates the distinction between a complete defence under section 253 and a partial defence under section 254, where all requirements for self-defence are met except that the means used were not reasonable. The case clarifies that once an attacker has been disarmed and is no longer a danger, using force against them (such as stabbing them with the weapon just taken from them) is not reasonable and reduces murder to culpable homicide. The judgment also illustrates the cautious approach courts must take when evaluating the evidence of a single witness, particularly when that witness is a relative of the deceased and introduces new allegations at trial that were not previously mentioned during investigations. The case provides guidance on sentencing for culpable homicide in self-defence contexts, balancing the seriousness of the offence with mitigating factors including provocation, self-defence elements, and time already served in custody.