The State v Tinashe Nyakudya

On 15 September 2018 at Chiruma 1 Village Chief Nyamaropa Madziwa, the accused was sleeping undressed with his girlfriend Talent Kanyongo in her bedroom when the deceased, Witness Chisora (Talent's ex-boyfriend who refused to accept termination of their relationship), arrived demanding entry. The deceased forcibly broke into the bedroom, allegedly hurled a brick at the accused and Talent (which missed), and threatened to assault the accused. The accused picked up an axe and struck the deceased once on the head, causing a deep cut from which the deceased died. The accused and deceased had earlier quarreled by phone over Talent, with each man claiming her as his girlfriend. Talent managed to flee the room before the fatal blow. The accused was 28 years old at the time of the offense.

• Whether the accused was entitled to a complete defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act
• Whether the means used by the accused to avert the unlawful attack were reasonable in the circumstances
• Whether the harm caused was grossly disproportionate to that liable to be caused by the unlawful attack
• Whether the accused could have otherwise escaped from or averted the attack
• Whether the accused should be convicted of murder or culpable homicide

The accused was found guilty of culpable homicide (acquitted of murder) and sentenced to 6 years imprisonment, with 2 years suspended for 5 years on condition he is not convicted of assault involving imprisonment without option of fine or community service during that period. Effective sentence: 4 years imprisonment.

Where an accused relies on self-defence under s 253 of the Criminal Law (Codification and Reform) Act, the means used to avert an unlawful attack must be reasonable in all the circumstances and the harm caused must not be grossly disproportionate to that liable to be caused by the attack. Using a lethal weapon (axe) aimed at a vulnerable part of the body (head) in response to a threat of mere assault (not death), where the deceased was unarmed and escape was possible, constitutes grossly disproportionate force that exceeds the boundaries of lawful self-defence. Such conduct negatives the complete defence but may reduce murder to culpable homicide where the accused was responding to some unlawful provocation or attack.

The court made several non-binding observations: (1) it criticized both men for fighting over a woman "in these days of the HIV and AIDS scourge" when discovering a girlfriend's unfaithfulness should have been seen as "a blessing in disguise" presenting an opportunity to protect oneself from HIV infection by ending the relationship; (2) the court noted the tragedy that the offense deprived both the accused's dependents (minor children and widowed mother) and the deceased's dependents of their breadwinner; (3) the court emphasized that punishment should reflect mercy while fitting both the crime and the offender, balancing societal interests with the offender's circumstances; (4) the court noted the offense was not pre-planned, which was a mitigating factor; (5) the court observed that the offender was in the class of "youthful offenders" at age 28.

This case provides important guidance on the application of Zimbabwe's statutory self-defence provisions (s 253 of the Criminal Law (Codification and Reform) Act) and the limits of lawful self-defence. It emphasizes that: (1) the means used in self-defence must be reasonable and proportionate to the threat faced; (2) where escape is possible, failure to attempt escape undermines a self-defence claim; (3) directing lethal force at vulnerable parts of the body (head) in response to a non-lethal threat exceeds lawful self-defence; (4) the constitutional right to life under s 48(1) of the Constitution is sacrosanct and courts will jealously guard against unjustified loss of life. The case demonstrates how accused persons may be entitled to some defence (reducing murder to culpable homicide) even where complete self-defence fails, reflecting the principle of partial defence in homicide cases.