The State v Tawanda Gono and Lee Shumba

On 1 February 2015, a dispute arose between the two accused persons and the deceased, Emisirayi Chinyengetere, regarding the use of a footpath passing through the deceased's yard in Rujeko 'C', Masvingo. The deceased, who was drunk and described as mentally unstable, had barricaded the path with an iron bar. The accused persons insisted on using the path. The deceased initially attacked the accused with an iron bar and then a knife, inflicting minor injuries on both accused. After overpowering and disarming the deceased, the accused persons assaulted him severely with fists and booted feet while he lay on the ground. The accused reported the incident to police on 1 February 2015, and police recovered the knife. The next day, 2 February 2015, the deceased's health deteriorated and he died before reaching hospital. A post-mortem revealed the cause of death as head injury and abdominal haemorrhage from blunt trauma, with massive scrotal and penile haematoma observed. The deceased made a dying declaration to a witness implicating both accused. The accused denied assaulting the deceased and claimed pure self-defence.

• Whether the accused persons assaulted the deceased and caused his death
• Whether the accused acted in self-defence or defence of another
• Whether the force used by the accused was reasonable and proportionate to the threat posed
• Whether self-defence could constitute a complete defence to murder or only a partial defence
• The evidential weight of dying declarations
• The prosecution's duty to disclose all relevant evidence including evidence favourable to the defence

Both accused were found not guilty of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act but guilty of culpable homicide as defined in section 49 of the same Act. Each accused was sentenced to 6½ years imprisonment, with 1½ years suspended for 5 years on condition that they do not commit any offence involving violence upon another person within that period. Effective sentence: 5 years imprisonment each.

Self-defence or defence of another can only constitute a complete defence to a charge of murder where the means used to avert an unlawful attack are reasonable and proportionate. Where an accused continues to use force after the attacker has been overpowered, disarmed, and the threat neutralized, the force becomes unreasonable and self-defence can only operate as a partial defence under section 254 of the Criminal Law (Codification and Reform) Act, reducing murder to culpable homicide. The prosecution has a duty to disclose all relevant evidence in its possession, including evidence that may be favorable to the defence; withholding such evidence is unethical and contrary to the interests of justice.

The court made strong critical observations about the conduct of the case, stating it was "poorly investigated, prosecuted in a very onerous way and also defended in a clumsy way." The court criticized the investigating officer as "clearly untruthful" and stated the State "sought not to put before the court facts which were reasonably within its knowledge." The court noted that if counsel had objectively applied their minds to the facts, the protracted trial could have been avoided through a statement of agreed facts. The court also made general observations about the prevalence of violent conduct among young people and their lack of respect for the sanctity of human life, noting that precious lives are lost over petty disputes that should be resolved amicably. The court emphasized that human blood is sacred and cannot be shed without dire consequences, and that accused persons should learn to restrain themselves and act responsibly.

This Zimbabwean case demonstrates the application of partial self-defence principles where accused persons exceed reasonable force in defending themselves. It establishes that once an unlawful attack has been successfully repelled and the threat neutralized, continued assault cannot be justified as self-defence. The case also highlights prosecutorial duties to disclose all relevant evidence, including evidence favorable to the defence, and criticizes the withholding of evidence simply because it is unfavourable to the State's case. The judgment affirms the admissibility and evidential value of dying declarations in criminal proceedings. While this is a Zimbabwean judgment, it reflects similar principles applicable in South African criminal law regarding self-defence, proportionality, and culpable homicide.