The State v Wellington Shoko

On 8 August 2021 around 1930 hours, the accused (aged 29), who was married to the deceased's daughter Sekai Ngwenya, had a domestic dispute with his wife. He threatened to assault her with a switch for accompanying her young sister Joylet Ngwenya home against his orders. Joylet reported the incident to her brother Evans Ngwenya, who proceeded to the accused's homestead to confront him. Evans forced open the door, held the accused, pulled him outside, and they fought. Evans bit the accused on the chin and ran back home with the accused giving chase to the deceased's homestead. The deceased (Chizeya Smart Ngwenya, aged 54) asked the accused to return home and said the matter would be resolved the following day. As the accused left, he shouted that Evans and the deceased were meddling in his family's affairs. This angered the deceased who followed the accused to his homestead in the company of Evans and Joylet. When they got near the accused's homestead, Evans picked a stone and threw it at the accused, striking him on the stomach. The accused then picked a metal shock absorber (weight 2kg, length 61cm) and struck the deceased on the left side of the head and face. The deceased fell and died on the spot. The accused fled from the scene.

• Whether the accused was guilty of murder or the lesser charge of culpable homicide
• Whether the accused acted in self-defense
• Whether the accused's use of force was proportionate to the unlawful attack
• Whether the accused's actions were negligent in causing the death of the deceased

The accused was found not guilty of murder and found guilty of culpable homicide in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 5 years imprisonment, of which 1 year imprisonment was suspended for 5 years on condition that he does not within that period commit an offence of which assault or physical violence on the person of another is an element and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine.

Where an accused person is under unlawful attack but uses disproportionate force in defending himself, resulting in the death of the attacker, and it was objectively foreseeable that such actions would lead to death, the accused acts negligently and is guilty of culpable homicide rather than murder. A reasonable person placed in a similar situation would have avoided acting in the manner the accused did. The use of a heavy metal object (shock absorber) to strike a person on the head and face constitutes disproportionate force, even in the context of self-defense, where the attack consisted of being struck by a thrown stone. Negligence for purposes of culpable homicide is established where the accused negligently failed to realize that death may result from his conduct, or having realized it, negligently failed to guard against that possibility.

The court observed that it is incumbent on the court to emphasize the sanctity of human life, and that society frowns at the taking of another human being's life. The courts must send a loud and clear message that the killing of a fellow human being will not be tolerated. The court noted that in circumstances involving culpable homicide with aggravating features such as the use of disproportionate force on a relatively elderly person causing serious injuries, only a custodial sentence will meet the justice of the case, notwithstanding significant mitigating factors.

This case illustrates the application of culpable homicide principles in Zimbabwean criminal law, particularly in cases involving self-defense where disproportionate force is used. It demonstrates the court's approach to distinguishing between murder and culpable homicide based on the accused's mens rea (negligence versus intention). The case emphasizes that even where an accused is under unlawful attack, the use of disproportionate force that results in death will constitute culpable homicide rather than justified self-defense. The case also reflects the court's balancing approach to sentencing in culpable homicide cases, weighing personal circumstances and mitigating factors against the sanctity of human life and the need for deterrence. It shows the court's willingness to accept limited pleas and the State's concession where this accords with the facts and law.