The State v Portifer Chunda

On 27 September 2015, the accused Portifer Chunda was working at Donbrooke Mine, Gweru, where his elder brother Tairod Chunda (aged 35) was employed as manager. In the early morning hours, the deceased ordered all workers to go underground, but the accused remained at the surface refusing to work. The deceased made two trips to the surface to persuade the accused to commence work, but he refused. When the accused eventually went underground, he sat down instead of working. The deceased ordered him to leave the mine shaft, but he refused. A confrontation ensued in which the deceased grabbed the accused by the collar and pressed him against the tunnel wall, tearing his t-shirt. During the altercation, the accused struck the deceased twice on the head with a mining chisel (a formidable iron tool weighing 1.472kg and 51cm long). The deceased fell, frothing at the mouth with dilated eyes. He was taken to Gweru Provincial Hospital and then referred to Parirenyatwa Hospital in Harare, but died in Norton en route. Post-mortem examination revealed brain damage, compound skull fracture, and head trauma as the cause of death.

• Whether the accused acted in self-defence when he struck the deceased with the chisel
• Whether the requirements for self-defence were satisfied
• Whether the accused's use of force was necessary and reasonable in the circumstances
• Whether the accused had constructive intent to commit murder

The accused was found guilty of murder with constructive intent and sentenced to 14 years imprisonment. The court considered mitigating factors including that he was a first offender, had a family to support (including the deceased's children), took care of funeral and medical expenses, had been in custody for 1 year 4 months, and would bear lifelong stigma. However, these were outweighed by aggravating factors including his defiance, the needless loss of life, and the need to deter violence at mine shafts.

For self-defence to succeed, five requirements must be satisfied: (1) there must be an unlawful attack; (2) the attack must be directed at the accused or a third party; (3) the attack must have commenced or be imminent; (4) the action taken must be necessary to avert the attack; and (5) the means used must be reasonable. Where an accused uses a formidable weapon such as a mining chisel to strike a person on the head, he must be taken to have foreseen the possibility of death resulting from such conduct, establishing constructive intent for murder. Self-defence is not available where the attack has not commenced and where the use of a deadly weapon against an unarmed person is entirely excessive and unreasonable.

The court observed that violence at mine shafts appears to be a recurring problem, stating: 'Those that work at the mines and now suddenly think that human life is worthless must be reminded that these courts will not tolerate animal behaviour. The courts will continue to impose lengthy terms of imprisonment against them until they respect human life and stop the violence that seems to define life at the mine shafts.' The court also noted that even where self-defence is exceeded, a partial defence reducing murder to culpable homicide may be available unless the excess was immoderate or entirely excessive, citing S v Ncube & Ors HB-303-16 and Feltoe's Guide to the Criminal Law of Zimbabwe.

This case is significant in Zimbabwean criminal law for: (1) illustrating the strict application of self-defence principles and the requirement that all five elements must be satisfied; (2) demonstrating that excessive force, particularly use of a deadly weapon against an unarmed person, defeats a claim of self-defence; (3) establishing that inconsistent accounts by an accused regarding the circumstances of an alleged attack will be rejected as self-serving; (4) emphasizing the sanctity of human life and the courts' role in deterring violence in mining communities through substantial custodial sentences; (5) confirming that constructive intent for murder can be established where a person uses a formidable weapon directed at the head, from which death could be foreseen.