The State v Shanan Makunde

On 13 September 2011 at Village Balapa, Lower Gweru, the accused, then aged 16 years, was returning from a church service with friends when he encountered the deceased, Mkhumbuzi Bhebhe, aged 20 years. The deceased confronted the accused and his friends, accusing them of placing thorns in the mortar he had prepared for moulding bricks. An altercation ensued in which the deceased slapped the accused on the face. The two exchanged blows, but the deceased overpowered the accused due to his age and size advantage. After struggling for approximately 5 minutes and being overpowered, the accused produced a short sharp knife blade and stabbed the deceased once in the left side of the chest. The deceased walked a few metres, fell down, got up and tried to walk again but fell. He was ferried home by witnesses but was unable to speak and was groaning. He died that same day. The post-mortem revealed the cause of death as haemorrhagic shock, perforated heart, and stab wound.

• Whether the accused had the requisite intent to kill (dolus eventualis) to sustain a conviction for murder
• Whether the accused acted in self-defence or under provocation
• Whether a conviction for culpable homicide was appropriate given the circumstances
• Whether the accused's age and the fact that he was overpowered were relevant mitigating factors

The accused was found not guilty and acquitted on the charge of murder. The accused was convicted of culpable homicide in accordance with his limited plea. He was sentenced to 6 years imprisonment with labour, with 2 years imprisonment suspended on the usual conditions.

Where an accused person, particularly a juvenile, is confronted, assaulted, and physically overpowered by a deceased person who is the aggressor, and the accused responds by stabbing the deceased with a weapon, resulting in death, the requisite intent for murder (dolus eventualis) may not be established. In such circumstances, where the State concedes that the evidence supports only a conviction for culpable homicide, and where the accused tenders a limited plea to that lesser charge, the court may properly convict the accused of culpable homicide rather than murder. The fact that the deceased was the aggressor and that the accused was overpowered are material considerations in determining whether the accused possessed the necessary intent to kill.

The court's acceptance of the State's concession and the limited plea suggests judicial recognition that youthful offenders who react violently when overpowered in a confrontation initiated by the deceased may lack the deliberate intent required for murder. The court implicitly acknowledged that the context of provocation, the age disparity, and the physical disadvantage of the accused were relevant factors that negatived the inference of murderous intent. The relatively lenient sentence (with partial suspension) further reflects the court's view that while the accused's conduct was unlawful and caused death, the culpability was substantially reduced by the circumstances of provocation and self-preservation.

This case illustrates the distinction between murder and culpable homicide in Zimbabwean criminal law, particularly where the accused is a juvenile who was provoked and overpowered by the deceased. It demonstrates the court's approach to accepting limited pleas where the State concedes that the requisite intent for murder (dolus eventualis) has not been proven. The case also shows the consideration given to mitigating factors such as the accused's age, the fact that he was the victim of aggression, and that he was physically overpowered before using the weapon. The acceptance of the limited plea reflects a pragmatic approach to cases where provocation and self-preservation, rather than murderous intent, appear to have motivated the accused's actions.