The State v Sithembiso Mzizi

On 30 March 2019 at around 2130 hours, the accused (a 56-year-old woman) and the deceased (a 20-year-old man) were drinking beer at Zenzele Mazwi bottle store in Pumula East when a misunderstanding ensued between them. The deceased allegedly called the accused a prostitute, leading to a verbal spat. The accused was leaning against a wall while the deceased faced her, both holding beer bottles. The accused smashed her beer bottle and stabbed the deceased once on the neck, causing a deep cut that severed major blood vessels and injured his lung. The deceased bled profusely and was taken to Mpilo Hospital where he died shortly thereafter. A post-mortem examination revealed the cause of death as haemorrhagic shock, neck major blood vessels cuts and lung injury, and callous neck stabbing. The injury was approximately 9cm deep, cutting the right brachiocephalic artery, superior vena cava, and left carotid artery.

• Whether the accused acted in self-defence when she stabbed the deceased
• Whether the requirements for self-defence under section 253 of the Criminal Law (Codification and Reform) Act were satisfied
• Whether the accused had actual intent to kill (murder with direct intent) or constructive intent (murder with legal intent)
• Whether the force used was proportionate to any attack the accused faced
• Whether there was an unlawful attack on the accused that was imminent or had commenced

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act, Chapter 9:23 (murder with constructive/legal intent). She was sentenced to 10 years imprisonment. The court considered mitigating factors (56-year-old first offender, breadwinner for 5 grandchildren, ill health, expressed regret, paid funeral expenses, some provocation, alcohol consumption) outweighed aggravating factors (loss of young life at age 20, use of violence, use of a broken bottle showing callousness), and noted that courts traditionally treat female offenders with some leniency.

For self-defence to succeed under section 253 of the Criminal Law (Codification and Reform) Act, all five requirements must be objectively satisfied: (1) the accused must be under an unlawful attack; (2) the attack must have commenced or be imminent; (3) the accused's conduct must be necessary to avert the attack after exploring all avenues of escape; (4) the means used must be reasonable in all circumstances; and (5) the harm caused must not be grossly disproportionate to the harm liable to be caused by the unlawful attack. The court must examine these requirements objectively from an external perspective, not merely from the accused's subjective perceptions, while avoiding an "arm-chair critic" approach. Where an accused uses a lethal weapon (broken bottle) with force to strike a vulnerable part of the body (neck), causing severe injury, and there is evidence the accused was motivated by annoyance rather than fear, and the injury caused is grossly disproportionate to any alleged attack (slap), self-defence fails. Murder with constructive intent under section 47(1)(b) is established where the accused realized there was a real risk or possibility that their conduct might cause death but continued nonetheless, even if they did not desire death as their aim and object.

The court observed that voluntary intoxication would not have availed as a defence, though there was no evidence the accused was intoxicated. The court noted that alcohol "does tend to make one excitable and to some extent numb one's ability to exercise self restraint," which was apparently considered as a contextual factor. The court reiterated sentencing principles from S v Tsibo Ndlovu that "the court must never assume a vengeful attitude" and from S v Rabie that "tampering justice with mercy is an approach that shows compassion but not necessarily maudlin sympathy for the offender." The court distinguished the case from S v Chishakwe where a 20-year sentence was imposed, noting that in this case the mitigatory factors outweighed the aggravatory ones. The court observed that "courts have also always treated women offenders with some measure of leniency," reflecting a gender-based consideration in sentencing. The court also noted that "the knowledge that you took a life is likely to haunt you for the rest of your life," acknowledging the psychological burden on the offender.

This case illustrates the application of self-defence principles under section 253 of the Criminal Law (Codification and Reform) Act in Zimbabwean criminal law. It demonstrates the strict requirements for a successful self-defence claim and emphasizes that all five requirements must be met for it to constitute a complete defence. The case also clarifies the distinction between murder with actual intent (section 47(1)(a)) and murder with constructive/legal intent (section 47(1)(b)), applying the principle from S v Mugwanda that actual intent requires proof beyond reasonable doubt that the accused desired to bring about death. The judgment reinforces that annoyance or anger, even if provoked, does not constitute self-defence, and that the force used must be proportionate to the attack faced. It also demonstrates judicial consideration of gender in sentencing, noting that courts have "always treated women offenders with some measure of leniency."