The State v Never Ngwenya

On 23 September 2016, the accused and the deceased (Japhet Moyo, a relative of the accused) were at a beer drink at Evelyn Zulu's homestead. The deceased was pulling Milton Sibanda's private parts while he slept. The accused brought the deceased to order, which led to an altercation that almost resulted in a fist fight. They were restrained, and the accused left for his homestead. The deceased, who was drunk, followed the accused to his homestead to confront him. At the gate, the deceased asked the accused's wife about the accused's whereabouts and threatened to stab her and burn down the accused's huts. The accused had hidden behind a hut. When the accused heard the deceased forcing open the gate, he picked up a log and threw it in the direction of the gate, hitting the deceased on the forehead. The deceased sustained a laceration and bled from the nose and mouth. He was taken to a clinic and died the following day (24 September 2016) while being transferred to Victoria Falls hospital.

• Whether the accused's conduct in assaulting the deceased was wrongful or justified as self-defence
• Whether the requirements for the defence of self under section 253 of the Criminal Law Codification and Reform Act were met
• Whether the accused acted reasonably in the circumstances when throwing the log at the deceased

The accused was found not guilty of murder and was acquitted.

Where an accused person is faced with an imminent unlawful attack, has attempted to avoid confrontation by retreating, and is confronted by a persistent, aggressive, and drunken assailant who threatens harm to the accused, his family, and property, the accused is justified in using force to avert the attack, provided the means used are reasonable in the circumstances. An accused person is not required to abandon his homestead and family to avoid an unlawful attack. The reasonableness of defensive action must be assessed from the perspective of the accused at the time of the incident, not with the benefit of hindsight. All five requirements of section 253 of the Criminal Law Codification and Reform Act must be met for self-defence to constitute a complete defence to a charge of murder.

The court made several observations regarding the assessment of self-defence cases. MOYO J cautioned against taking an "armchair approach" when evaluating whether an accused acted reasonably, noting that it is easy after the event to identify alternative courses of action. The court also observed that drunken persons pose a serious threat and that drunkenness makes individuals more irrational and dangerous rather than less so, rejecting the notion that a drunk aggressor is harmless. The court commented that people are killed "day in and day out at these beer drinks by drunken people," highlighting the real danger posed by intoxicated aggressors. The court also expressed sympathy for the unfortunate loss of life while maintaining that the accused's actions were justified in the circumstances.

This case illustrates the application of the statutory defence of self-defence under section 253 of the Criminal Law Codification and Reform Act in Zimbabwe. It reinforces the principle that courts must assess the reasonableness of an accused's actions from the perspective of the accused at the time of the incident, rather than with hindsight. The judgment emphasizes that an accused is not required to flee from his own property when faced with an unlawful attack, and that drunkenness of an aggressor does not diminish but may actually increase the threat posed. The case demonstrates a sympathetic approach to accused persons who take defensive action after exhausting reasonable alternatives to avoid confrontation.