The State v Sikhululiwe Ncube

The accused, a 33-year-old woman, was charged with the murder of her husband, Lovemore Ndlovu, aged 36, on 26 June 2010 at their home in Bulawayo. The deceased was a habitually abusive husband who regularly battered the accused when drunk. Police records showed numerous assault reports dating back to 2008, with the deceased always being the aggressor. The neighbourhood had nicknamed their house 'DRC' due to the endless combat action. On the fateful day, the deceased arrived home drunk at 1930 hours and began assaulting the accused with fists and boots. He locked the door to prevent escape and picked up a knife intending to stab the accused. A struggle ensued over the knife, during which the deceased was stabbed in the right side of his neck and later died. The only eyewitness, a 15-year-old nephew, testified he did not see the actual stabbing but observed both parties grappling over the knife with it pointing toward the deceased.

• Whether the accused unlawfully and intentionally killed the deceased
• Whether the defence of private defence (self-defence) was available to the accused
• Whether the requirements for self-defence were met: unlawful attack, attack commenced or imminent, action necessary to avert attack, and means used were reasonable
• Whether the fatal injury may have been accidental rather than intentional

The accused was found not guilty of murder and acquitted.

Where an accused person kills during an unlawful attack upon her person, the defence of private defence (self-defence) will succeed if: (1) there was an unlawful attack upon the accused; (2) the attack had commenced or was imminent; (3) the defensive action was necessary to avert the attack; and (4) the means used were reasonable in the circumstances. In assessing reasonableness, the court must consider the agony of the moment faced by the accused. Using the same weapon that the attacker intended to use against the victim constitutes reasonable means of defence and does not exceed the bounds of lawful self-defence. Self-defence excludes unlawfulness and justifies the actions of the accused, resulting in acquittal.

The court observed that even if the accused had not actively used the knife against the deceased, the fatal injury may have resulted from an accidental stabbing during the struggle for the weapon. The court also noted the severe pattern of domestic abuse documented by police records dating back to 2008, with the deceased being invariably the aggressor, and that the community had nicknamed the couple's home 'DRC' due to the constant violence. The court recognized that the deceased appeared to derive 'recreational satisfaction' from attacking his wife when he consumed alcohol, highlighting the systematic nature of the abuse.

This case is significant in Zimbabwean criminal jurisprudence as it illustrates the application of the doctrine of private defence (self-defence) in the context of domestic violence. It establishes that a victim of sustained domestic abuse who kills her abuser during a violent attack while defending herself can successfully rely on self-defence. The case recognizes the reality of domestic violence and the right of victims to defend themselves against imminent deadly harm. It demonstrates judicial recognition that reasonable means of defence must be assessed in the context of 'the agony of the moment' and that using the same weapon intended to be used against the victim can constitute reasonable force. The case also shows the importance of prior history of abuse in establishing the context of self-defence claims.