The State v Raighton Nkomo

On 16 July 2019 at around 8:00 pm at stand No. 6, Village 1 Lukona Kennilworth in Inyathi, Zimbabwe, the accused (aged 28) and the deceased (his 61-year-old father) had a misunderstanding at home. The deceased accused the accused of eating food at the homestead without contributing anything. The deceased picked up an axe intending to strike the accused. In response, the accused also picked up an axe and struck the deceased on the head. The deceased fell near the fireplace. The accused then dragged the deceased's body and placed his head onto the fireplace in an attempt to hide or conceal evidence. The deceased's body was discovered by the accused's brother the following morning. The post-mortem examination by Dr. Pesanai revealed that the cause of death was brain damage, compound skull fracture, chop wound, and assault. The burn to the scalp occurred post-mortem. The accused was arrested and charged with murder.

• Whether the accused was guilty of murder or culpable homicide
• Whether the accused's conduct constituted self-defence under section 253 of the Criminal Law Code
• Whether the means used by the accused to avert the unlawful attack were reasonable
• What was the appropriate sentence for culpable homicide in the circumstances

The accused was found not guilty of murder but guilty of culpable homicide as defined in section 49 of the Criminal Law Code. He was sentenced to 8 years imprisonment, of which 1½ years was suspended for 5 years on condition that he does not commit any offence involving assault on the person of another during that period for which he is sentenced to imprisonment without the option of a fine. The effective sentence was 6½ years imprisonment.

Where an accused person faces an unlawful and imminent attack with no avenue of escape, but uses unreasonable means to avert the attack, the accused may have a partial defence to murder under section 253 of the Criminal Law Code, reducing liability to culpable homicide under section 49. The reasonableness of the means used is assessed objectively, considering factors such as the relative ages of the parties, the weapon used, the part of the body targeted, and the force applied. Striking a 61-year-old person on the head with an axe with sufficient force to cause a compound skull fracture and brain damage constitutes unreasonable force, even when responding to an attack with the same type of weapon. Culpable homicide arising from violent conduct is a serious offence that invariably attracts a custodial sentence unless there are special mitigatory factors, because the sanctity of human life cannot be overemphasized and life once lost cannot be replaced.

The court observed that the accused was being punished not for evil intent, as he had no intent to kill, but for being careless (citing R v Richards 2001 (1) ZLR 129 (S)). The court commented that the fact the accused killed his own father was likely to weigh heavily on him and haunt him for the rest of his life. The court remarked that violence persistently rears its ugly head within society and a strong message must be sent that violence does not solve anything but only makes a bad situation worse. The court noted that people should respect the sanctity of life and society expects no less, and that courts would be failing in their duty if they did not impose exemplary sentences. The court observed that society expects children to respect their parents, and the accused showed lack of respect when he caused his father's death and dragged his lifeless body to the fire. The court noted that while the accused might have acted in the heat of the moment in striking the deceased, dragging the body and placing his father's head in the fire was callous and disrespectful. The court stated that but for the almost 2 years the accused spent in pre-trial incarceration, a sentence in the region of 10 years would have been appropriate.

This case illustrates the application of partial self-defence in Zimbabwean criminal law, where an accused person faces an unlawful attack but uses unreasonable force in response. It demonstrates how the doctrine of self-defence can reduce a murder charge to culpable homicide when the requirements for complete self-defence are not fully met. The case also provides guidance on sentencing for culpable homicide arising from violent conduct, emphasizing the sanctity of human life and the need for custodial sentences except where special mitigatory factors exist. It reinforces the principle that courts must balance mitigating factors (such as provocation by the deceased and pre-trial incarceration) against aggravating factors (such as loss of life and the use of violence) to arrive at an appropriate sentence.