The State v Phillip Mashava

On 31 July 2015 at Derust Farm Compound, Chipinge, the accused discovered his wife sitting in a compromised position with the deceased at a beer drink, with the deceased's hand in her skirt. The accused assaulted his wife with a hosepipe and took her home. Later that evening, the deceased came to the accused's homestead asking for the accused's wife. Despite being ordered to leave, the deceased resisted. The accused sharpened a machete and axe, and together with his nephew Simon Puranyemba Simango (still at large), assaulted the deceased with these lethal weapons. The deceased sustained deep cuts to the left shoulder (exposing blood vessels) and right wrist, from which he bled to death (hypovolaemia secondary to severe acute bleeding). The body was later recovered from a nearby river where it had been concealed.

• Whether the accused murdered the deceased with actual intention (dolus actualis)
• Whether the accused murdered the deceased with constructive intention/dolus eventualis
• Whether the defence of self-defence was available under s 253
• Whether the defence of provocation under s 239 of the Criminal Law (Codification and Reform) Act negated intention
• Whether the accused was guilty of culpable homicide under s 49(b)

The accused was found not guilty of murder but guilty of culpable homicide as defined in s 49(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 6 years imprisonment, of which 3½ years were suspended for 3 years on condition he does not commit an offence involving violence on another person for which he is sentenced to imprisonment without the option of a fine.

The binding legal principles are: (1) Provocation under s 239 operates as a partial defence that can reduce murder to culpable homicide where the accused reacted spontaneously and lost self-control in circumstances where a reasonable person would lose self-control; (2) The reaction to provocation must be sudden and at the spur of the moment, where the person temporarily loses power of self-control; (3) Self-defence is not available where disproportionate force is used - using lethal weapons (machete and axe) to ward off an assault with a small wooden bench exceeds the limits of self-defence under s 253; (4) A person is guilty of culpable homicide under s 49(b) where they create a dangerous situation by using lethal weapons but do not take steps to guard against death arising from that dangerous situation, thereby negligently causing death; (5) Loss of self-control caused by provocation negates the foresight required for dolus eventualis/constructive intention.

The court observed that sentencing is not an easy exercise as it involves striking a balance between the crime, the criminal and societal interests of justice while blending justice with mercy. The sentence must be neither overly harsh as to break the accused nor unduly lenient as to lose meaning. The court commented that no one has a right to take away another life for whatever reason, and that resorting to violence whenever angered would lead to lawlessness and anarchy. The court noted that while the deceased brought the situation upon himself by persistently pursuing the accused's wife at the accused's homestead, the accused ought to have reported the matter through proper channels rather than resorting to violence. The court also observed that all fellow villagers confirmed the accused was a person of good character not prone to violence, as evidenced by his lack of criminal record.

This case is significant in Zimbabwean criminal law (relevant to South African jurisprudence given similar legal principles) for its application of the partial defence of provocation under s 239 of the Criminal Law (Codification and Reform) Act. It illustrates how provocation can reduce murder to culpable homicide where there is evidence of sudden loss of self-control in circumstances where a reasonable person would lose self-control. The case demonstrates the distinction between murder with actual intention, murder with constructive intention (dolus eventualis), and culpable homicide based on negligence. It also clarifies the limits of self-defence, confirming that disproportionate force negates the defence. The judgment emphasizes that while provocation may negate intention, it does not excuse taking the law into one's own hands, and that violence as a solution to disputes will attract deterrent sentences.