The State v Sokana Nkomo

The accused, aged 39 at the time (56 at trial), was charged with murdering Gamula Ndlovu on 26 November 2000 by stabbing him with an okapi knife. The accused and deceased were rival suitors who shared a girlfriend, Sikhathazile Tshuma (now deceased). On the day in question, the accused visited the girlfriend and found her with the deceased and a witness. The accused chose to leave peacefully to avoid confrontation. However, the deceased followed him, demanding tobacco and shouting obscenities. The deceased caught up with the accused, and an altercation ensued. The accused claimed the deceased attacked him, caused him to fall off his bicycle, blocked his escape attempts, and wielded a knife. The accused then stabbed the deceased with a knife, resulting in his death. The offence occurred in 2000, but the trial only took place in 2018, approximately 17-18 years later. The accused had already spent 3 years and 8 months in remand prison.

• Whether the accused had a complete defence of self-defence in terms of section 253 of the Criminal Procedure and Evidence Act
• Whether there was an unlawful attack on the accused
• Whether the accused had no other means of averting the attack
• Whether the means used by the accused were reasonable in the circumstances
• Whether the accused's claim that the deceased wielded a knife was credible
• What appropriate sentence should be imposed considering the extensive delay in prosecution and time already served

The accused was found guilty of culpable homicide and sentenced to 18 months imprisonment, wholly suspended on condition that the accused performs 320 hours of community service at Makhulela Clinic.

The binding legal principles established are: (1) For a complete defence of self-defence under section 253 of the Criminal Procedure and Evidence Act, an accused must prove: (a) there was an unlawful attack that had commenced or was imminent; (b) the accused had no other means of averting the unlawful attack; and (c) the means used were reasonable in the circumstances. (2) Where an accused introduces a lethal weapon (such as a knife) into a fight where the attacker is unarmed, the accused exceeds the bounds of reasonable self-defence and cannot rely on a complete defence under section 253, though an incomplete defence under section 254 may be available, reducing murder to culpable homicide. (3) Material omissions from an accused's confirmed warned and cautioned statement regarding the very crux of their defence (such as the claim that the deceased was armed) will be treated with suspicion and may be rejected as afterthoughts, particularly where there is no reasonable explanation for the omission. (4) In sentencing, where there has been excessive delay in prosecution through no fault of the accused, and the accused has already served substantial time in pre-trial detention, courts must discount this time and consider whether further imprisonment serves the interests of justice, particularly where the accused would have already completed their sentence had they been tried timeously.

The court made several obiter observations: (1) The court expressed concern about the systemic delays in the prosecution, noting that the offence occurred in 2000 but trial only occurred in 2018, and that the accused appeared to have been available throughout this period. (2) The court observed that "knife cases are a problem in our midst and deterrence is a factor to be considered in such cases," indicating judicial concern about the prevalence of knife violence. (3) The court made sympathetic observations about human nature and provocation, stating "What can a man do? When pushed to the edge, violence is likely to ensue although these courts do not condone such behaviour, this court is alive to the fact that an accused person is human and is bound to react in a certain manner when pushed to the limit." This acknowledges the reality of human reactions to provocation while not condoning violence. (4) The court noted that sending someone to prison 18 years after an offence where the deceased was the aggressor and the accused had already spent significant time in custody "would not be in the interests of justice at all," reflecting on the broader question of delayed justice. (5) The court observed that had the accused been tried timeously 18 years ago, he would have long since completed his sentence, and he is now "nearing the afternoon of his life" at age 56.

This case is significant in South African (Zimbabwean) criminal law for several reasons: (1) it illustrates the application of the defence of self-defence under sections 253 and 254 of the Criminal Procedure and Evidence Act, particularly the distinction between complete and incomplete self-defence; (2) it demonstrates that introducing a lethal weapon to an unarmed altercation exceeds the bounds of reasonable self-defence even where the accused was unlawfully attacked and was the non-aggressor; (3) it highlights the importance of consistency in an accused's version of events, particularly regarding material elements of a defence - omissions from earlier statements (like warned and cautioned statements) can fatally undermine claims made at trial; (4) it addresses the challenging sentencing considerations when there has been excessive delay in prosecution through no fault of the accused, showing how courts should discount pre-trial detention and consider whether imprisonment years after the offence serves the interests of justice; and (5) it illustrates the balancing exercise courts must perform between individual circumstances, societal interests, and the need for deterrence, particularly in cases involving weapons.