The State v Smile Ncube

On 13 September 2017 at Nyelesi Line, Sipepa, Tsholotsho, Zimbabwe, the accused (aged 35 years) assaulted his step-mother, Anoteneta Moyo (aged 56 years), with a knobkerrie. The accused arrived at around 9 pm at a homestead where the deceased was seated with Tithibele Ncube, Rozinah Ncube, Lethokuhle Ncube and four children. He questioned Lethokuhle about leaving the homestead contrary to his instructions and began assaulting her with the handle of the knobkerrie. The deceased remonstrated with the accused, stating she had sent Lethokuhle on the errand and told him to assault her instead. The accused then turned on the deceased and repeatedly struck her on the head with the knob of the knobkerrie. Others fled the hut. Shortly after, witnesses observed flames in the hut and found the deceased lying inside covered with a burning plastic mat, her clothes on fire. They extinguished the fire but the deceased died. She sustained serious head injuries including missing right eye globe, right eye, and part of nose, as well as burns. The accused fled the scene. Post-mortem revealed cause of death as extensive subarachnoid haemorrhage, basal skull fracture, head injury, and assault. The accused and deceased had a poisoned relationship prior to the incident.

• Whether the accused intended to kill the deceased (murder with direct intent)
• Whether the accused foresaw the possibility of death but continued regardless (murder with constructive intent/dolus eventualis)
• Whether the defence of provocation was available to reduce murder to culpable homicide
• Whether the accused lost self-control as a result of provocation
• Whether a reasonable person in the accused's position would have lost self-control

The accused was found not guilty of murder but guilty of culpable homicide. He was sentenced to 10 years imprisonment, of which 3 years 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: 7 years imprisonment.

Where an accused raises the defence of provocation in a murder charge, the court must assess whether the provocation was sufficient to cause the accused to lose self-control. The defence version cannot be rejected unless proved to be palpably false or not reasonably possibly true (applying S v Difford and S v Kuiper). While provocation ordinarily does not amount to a full defence to murder, where there is sufficient provocation causing loss of self-control, and it is reasonably possible that provocative utterances were made given the context of a poisoned relationship, the appropriate verdict is culpable homicide rather than murder. Cumulative provocation, including resentment and offensive utterances about deceased family members, can constitute sufficient provocation to reduce murder to culpable homicide.

The court observed that had it been demonstrated that the defence of provocation was palpably false, it would have rejected that defence. The court noted this was a borderline case between culpable homicide and murder with constructive intent. The court emphasized that courts have a duty to protect the sanctity of human life and that the loss of life in this case was totally unnecessary and avoidable. The court commented that the accused behaved recklessly and used excessive force, showing no respect for the deceased who was not only his step-mother but also elderly. The court noted the accused's belief in witchcraft as part of the cumulative provocation, though this was not essential to the decision.

This case illustrates the application of the defence of provocation in Zimbabwean criminal law, particularly in cases involving cumulative provocation arising from poisoned familial relationships. It demonstrates how courts assess the reasonableness of loss of self-control and the circumstances under which murder can be reduced to culpable homicide. The case emphasizes that provocation must be sufficient to cause a reasonable person to lose self-control, and applies the Difford test for evaluating defence versions in criminal cases. It also highlights judicial consideration of cultural factors such as beliefs in witchcraft as contributing to cumulative provocation, while still emphasizing the sanctity of human life and the need for deterrent sentences in homicide cases involving violence against vulnerable persons (elderly relatives).