The State v Thembinkosi Dube

On 23 April 2015, the accused, the deceased (Rabson Tshuma) and other villagers were drinking home-made beer at Alvinah Nyoni's homestead in Janke Village, Lupane. The drinking session started in the morning and continued until early evening around 18:00 hours. During this time, the accused and the deceased were dancing to music from a radio. Without any prior warning, the accused armed himself with a pestle weighing 2,800 grams and walked approximately 20 metres to collect it. He then struck the deceased twice on the head while the deceased was unaware of the attack. The deceased suffered multiple skull fractures with multiple bone fragments and died instantly at the scene. The post mortem report concluded the cause of death was severe cerebral damage, multiple skull fractures with multiple bone fractures, and severe head trauma due to beating injury. The accused fled the scene immediately after the attack.

• Whether the accused acted in self-defence as contemplated in section 253 of the Criminal Law (Codification and Reform) Act
• Whether voluntary intoxication could constitute a defence or mitigating factor pursuant to sections 221 and 222 of the Criminal Law (Codification and Reform) Act
• Whether the accused had actual intention to kill (dolus directus) or constructive intent (dolus eventualis)

The accused was found guilty of murder with actual intent and sentenced to 30 years imprisonment.

For self-defence to constitute a complete defence under section 253 of the Criminal Law (Codification and Reform) Act, all requirements must be satisfied: (a) an unlawful attack must have commenced or been imminent, or the accused must have reasonably believed so; (b) the conduct must have been necessary to avert the attack with no other means of escape; (c) the means used must be reasonable in all circumstances; and (d) any harm must be caused to the attacker and not be grossly disproportionate. Voluntary intoxication does not constitute a defence to crimes requiring proof of intention where the accused retained the requisite intention, though it may be considered in mitigation after conviction. Actual intent to kill (dolus directus) is established where the evidence shows premeditation, deliberate choice of deadly weapon, calculated attack on a vulnerable part of the body, and immediate flight from the scene demonstrating appreciation of having accomplished the mission to kill.

The court observed that human life is sacred and must be respected, and conduct that makes life look cheap cannot be tolerated. The court expressed hope that the sentence would allow for the accused's reformation during incarceration so that upon release he could be reintegrated into society as a worthy member. The court noted the painful reality that while the accused would have hope of reunion with his family, the deceased's family would never have that opportunity. The court commented that while the murder was serious, it was not committed in the most aggravating circumstances as perceived by the court, and accepted that prior consumption of home-brewed beer over a considerable length of time could be considered as mitigatory, along with the accused's previous clean record and family responsibilities.

This case provides guidance on the application of section 253 of the Criminal Law (Codification and Reform) Act regarding the requirements for self-defence as a complete defence. It illustrates the strict requirements that must be met, particularly that an unlawful attack must have commenced or been imminent, and that the response must be proportionate. The case also clarifies the limited role of voluntary intoxication in criminal defences under sections 221 and 222 of the Code, confirming it cannot serve as a defence to crimes requiring proof of intention where the accused retained the requisite intention. The judgment demonstrates how courts distinguish between actual intent (dolus directus) and constructive intent (dolus eventualis) in murder cases, emphasizing factors such as premeditation, choice of weapon, targeting of vulnerable body parts, and post-offence conduct.