The State v Sibangilizwe Moyo

On 7 November 2012 at around 2100 hours, the accused was traveling from Samasi Village to Zenka Area in Nkayi using an ox-drawn scotch cart. The accused was leading the oxen while his son Brian (17 years) and his brother Mkhululi Moyo (37 years) sat in the cart. During the dark night journey, the accused saw a strange image on the road verges and buckets of water in the middle of the road, which caused him extreme fear and panic. He made a U-turn but encountered another similar image in his path. The accused attempted to communicate with the image and threw sand at it, but it attacked him by attempting to strangle him. His son and brother fled after claiming the image had jumped into their cart. The accused struck the image twice with his home-made axe, causing it to release its grip. The three sought shelter at a nearby homestead. A villager, Jackson Nyathi, later informed them that a villager had been killed. The deceased was described as a mentally unstable person from the village whose condition was regulated by medication. At the time of the incident, the accused genuinely believed he was being attacked by a goblin and was defending himself.

• Whether the accused had the requisite mens rea (intention) to commit murder at the time of killing the deceased
• Whether the defence of mistake of fact was applicable and valid in the circumstances
• Whether a genuine but unreasonable mistake of fact constitutes a complete defence to a charge of murder
• Whether the actus reus and mens rea existed simultaneously at the time of the killing

The accused was found not guilty and acquitted of the charge of murder.

A genuine mistake of fact constitutes a complete defence to murder even if the mistake is unreasonable, provided the court is satisfied the mistake was genuine. For a conviction of murder, both the actus reus (physical act of killing) and mens rea (intention to kill a human being) must exist simultaneously. If an accused genuinely believes he is attacking a non-human entity (such as a goblin) rather than a person, he lacks the necessary mens rea for murder and must be acquitted. The test for an essential mistake is whether the accused would have committed the crime if the facts had been as he believed them to be. While unreasonableness of a mistake may be considered in determining whether it was genuine, a mistake does not need to be reasonable to constitute a valid defence to crimes of intention. This principle is codified in section 233 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The court made non-binding observations about the persistence of belief in goblins and supernatural entities among many Zimbabweans and Africans generally, even in modern times. The court noted that both the accused and his brother appeared visibly terrified even while giving evidence in court, which the court found compelling evidence of the genuineness of their belief. The court also observed that the deceased's mental instability, which was regulated by medication, likely contributed to her unusual behavior on the night in question, making it "very likely that she behaved in the most unusual way, a behaviour that unfortunately cost her life." The court described the facts of the case as "most unusual" and noted the tragic nature of the incident where cultural beliefs and mental illness combined to produce a fatal outcome.

This case is significant in Zimbabwean (and by extension South African) criminal law as it demonstrates the application of the mistake of fact defence to murder charges. It affirms that a genuine mistake of fact, even if grossly unreasonable, constitutes a complete defence to crimes requiring subjective intention. The case illustrates how cultural beliefs (such as belief in goblins) can form the basis of a genuine mistake of fact defence. It also reinforces the principle that for a murder conviction, both actus reus and mens rea must exist simultaneously - the accused must intend to kill a human being at the time of the killing. The case provides practical guidance on how courts should assess the genuineness of a mistake, considering factors such as the demeanor of witnesses and the circumstances surrounding the incident. It serves as an important precedent for cases involving defences based on supernatural beliefs in African jurisprudence.