The State v Paul Dube and Jinogo Dube

On 20 April 2005 at Paul Dube's homestead at Mucklenuck Scheme, the deceased Livison Nyoni approached the first accused's bar in an intoxicated and aggressive state. The deceased threw stones at the window, hurled insults, and approached the entrance carrying stones and a metal bar. The first accused (Paul Dube), Van Dube, and John Nleya were drinking beer inside. According to the state witness Van Dube, when the deceased entered armed with stones and iron bars, they initially hid in corners. The first accused then took a carved wooden stool he had been sitting on and hit the deceased on the head behind the right ear. The deceased staggered, fell on all fours, then later left. The deceased subsequently died. A post-mortem report revealed a scalp haematoma and noted that the deceased had also been stabbed with a knife on the chest. The second accused (Jinogo Dube) was not implicated in any assault on the deceased.

• Whether the first accused caused the death of the deceased
• Whether there was a causal link between the assault with the stool and the death despite a subsequent stabbing
• Whether the defence of self-defence was available to the first accused
• Whether the second accused had a case to answer
• Whether the first accused had the requisite intention for murder or acted negligently
• The appropriate treatment of single witness testimony

The first accused was found not guilty of murder but convicted of culpable homicide. He was sentenced to 3 years imprisonment. The second accused was discharged at the close of the state case in terms of section 198(3) of the Criminal Procedure and Evidence Act.

The binding legal principles established are: (1) In assessing single witness testimony, there is no rule of thumb; the court must weigh the evidence and decide whether it is satisfied the testimony is truthful despite any shortcomings (applying Sauls and others 1981 (3) SA 172 (A) and S v Banana 2000 (1) ZLR 607 (SC)). (2) For causation in homicide, if at the time of death the original wound is still operating and a substantial cause of death, the death results from that wound even if another cause was also operating; only if the second cause is so overwhelming as to make the original wound merely part of the history may it be said that death does not flow from the original wound (applying S v Tembani 2002 (2) ALL SA 373). (3) All four requirements of self-defence under section 253 of the Criminal Law Codification and Reform Act must be met: (i) unlawful attack commenced or imminent; (ii) conduct necessary to avert attack and accused could not otherwise escape; (iii) means used must be reasonable in the circumstances; and (iv) harm caused must not be grossly disproportionate and must be directed at the attacker. (4) An accused who denies committing an assault cannot successfully establish self-defence as they deprive themselves of the opportunity to explain the circumstances justifying their conduct.

The court made several non-binding observations: (1) That discrepancies between a state summary and witness testimony should not affect credibility assessment as the summary is prepared by someone else (citing Ephias Chigova v The State 1992 (2) ZLR 206). (2) That if the defence wished to challenge which specific assault caused death, they should have called the doctor for cross-examination rather than admitting his evidence. (3) That beer drinking should be "mercy making" (likely meaning merry-making) and courts must send a message that people who become nuisances do not deserve to be killed - they have a right to life and should be dealt with by appropriate authorities. (4) That every life is sacred, including the lives of those who sometimes become a nuisance, emphasizing the sanctity of life principle. (5) That there would be chaos in society if courts sent a message that nuisance persons deserve to be killed. (6) That the usual sentence for culpable homicide is seven to ten years imprisonment.

This case is significant in Zimbabwean criminal law for: (1) its application of South African jurisprudence on single witness testimony and the principle that corroboration is not essential where a witness is credible and reliable (S v Banana 2000 (1) ZLR 607 (SC)); (2) its treatment of causation in homicide cases where multiple assaults occur, applying the adequacy theory and holding that if the original wound remains a substantial operating cause of death, subsequent intervening acts do not break the causal chain unless they are overwhelming; (3) its strict application of the requirements for self-defence under section 253 of the Criminal Law Codification and Reform Act, particularly the requirement that the accused could not otherwise escape or avert the attack; and (4) its holding that an accused who denies committing an assault cannot later successfully raise self-defence as this undermines their ability to establish the necessary elements of the defence.