The State v Sambulo Masuku

On 31 August 2018, the 18-year-old accused and the 17-year-old deceased, Antony Ginya, were drinking opaque beer at Umguza beer garden before proceeding to an Umguyo circumcision ceremony. Around midnight, after an earlier altercation involving a third party, the accused and deceased had a misunderstanding. The deceased, who was in possession of a machete, attempted to attack the accused but was restrained by Abongile Ndatshana. At a footpath in Mabhaleni village, Mbembesi, another confrontation occurred. The deceased again tried to attack the accused with the machete, but the accused disarmed him. The accused then struck the deceased three times on the head with the machete - twice while the deceased was facing him, and a third blow to the back of the head as the deceased was turning away and falling. The deceased sustained brain laceration, skull fractures, and chop wounds, and died from these injuries. His body was discovered the following morning.

• Whether the defence of self-defence (private defence) was available to the accused
• Whether the accused's use of force was reasonable and proportionate to the unlawful attack
• Whether the requirements under section 253 of the Criminal Law Codification and Reform Act were satisfied
• Whether the accused should be convicted of murder or the lesser charge of culpable homicide

The accused was acquitted on the charge of murder and found guilty of culpable homicide. He was sentenced to 3 years imprisonment, of which 1 year was suspended for 5 years on condition that he not be convicted of an offence involving violence during that period for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 2 years imprisonment.

Where an accused person is defending himself against an unlawful attack but uses force that is unreasonable in the circumstances and disproportionate to the attack, the defence of private defence will not result in an acquittal. Under section 254 of the Criminal Law Codification and Reform Act, if all requirements for defence of person under section 253 are satisfied except that the means used were not reasonable in all the circumstances, the accused shall be guilty of culpable homicide rather than murder. Once an attacker has been disarmed and is falling away, delivering further blows with a lethal weapon to the back of the head constitutes excessive force that exceeds the bounds of lawful self-defence. The objective test requires the court to assess whether, viewed objectively, the defensive steps taken were necessary and reasonable, not merely whether the accused believed them to be so.

The court expressed concern about young offenders aged 16-21 years resorting to the use of machetes and causing unnecessary loss of life. Makonese J observed that violence is not countenanced by the courts, and the behavior of young offenders carrying lethal weapons must be checked. The court noted it was an indictment on elders in society to allow young persons to consume alcohol at young ages and leave them to their own devices. The court emphasized that while it must keep young first offenders away from the polluting environment of prison, sentences must meet both the interests of the accused and societal expectations, or courts will lose credibility. The court stated that lengthy custodial sentences are not appropriate for young offenders, but wholly suspended sentences would trivialize serious offences. The sentence should be rehabilitative while protecting the sanctity of human life.

This case illustrates the application of sections 253 and 254 of the Criminal Law Codification and Reform Act (Chapter 9:23) regarding private defence/self-defence in Zimbabwean criminal law. It demonstrates that even where an accused person is entitled to defend themselves against an unlawful attack, the use of disproportionate or excessive force will result in a conviction for culpable homicide rather than an acquittal. The case reinforces that all requirements for self-defence must be satisfied, particularly that the means used must be reasonable and the harm caused must not be grossly disproportionate to the attack. The judgment also addresses concerns about youth violence and the use of weapons by young offenders, balancing rehabilitative considerations with the need to protect the sanctity of human life and maintain public confidence in sentencing.