The State v Willard Gwete

On 4 July 2015 at Gwete Bottle Store in Chiramba, Chief Saunyama, Nyanga, the accused, Willard Gwete, stabbed his blood brother Takemore Gwete with an okapi knife in the abdomen, causing injuries from which Takemore died. The incident occurred after the accused, who was intoxicated, had been harassing patrons at the family bottle store and demanding free beer. The deceased, as the elder brother, remonstrated with the accused and urged him to desist from this embarrassing behavior. The deceased then suggested they go home, and the accused appeared to acquiesce, walking out peacefully with him. Shortly thereafter, the deceased walked back into the bottle store and announced that the accused had stabbed him, then collapsed from excessive bleeding. After the stabbing, the accused stood outside the bottle store threatening to stab anyone who tried to apprehend him while wielding the knife. He was eventually subdued by Lloyd Saunyama, Givemore Simango and other patrons. When police arrived and confirmed the deceased's death, the accused appeared remorseful.

• Whether the accused acted in self-defence when he stabbed the deceased
• Whether the requirements for self-defence under section 253 of the Criminal Law (Codification and Reform) Act were satisfied
• Whether the accused had the necessary mens rea for murder under section 47(1)(b) of the Criminal Code
• Whether the accused's intoxication negated criminal liability
• Whether the circumstantial evidence was sufficient to establish murder rather than culpable homicide

The accused was found guilty of murder as defined in section 47(1)(b) of the Criminal Code and sentenced to 14 years imprisonment.

To successfully raise self-defence under section 253 of the Criminal Law (Codification and Reform) Act, the accused bears the onus of showing on a balance of probabilities that: (1) there was an unlawful attack upon the accused or a third party; (2) the attack had commenced or was imminent; (3) the defensive action was necessary to avert the attack; and (4) the means used were reasonable. Murder with constructive intent under section 47(1)(b) of the Criminal Code is established where the accused realizes the real risk or probability that death may result from his conduct but persists with that conduct notwithstanding such realization. Intoxication does not negate criminal liability where the accused demonstrates sufficient awareness of his actions and their consequences through his conduct before, during and after the commission of the offence.

The court noted that when assessing a claim of self-defence, it must not adopt an "armchair approach" that underplays the factual situation in which the accused found himself and the lack of opportunity to weigh the niceties of different courses of action. The court observed that murder is a serious offence for which capital punishment may be imposed, as it reduces the sanctity of human life. The public expects courts to pass appropriately tough sentences reflecting the gravity of murder to deter like-minded individuals. The court also commented that genuine remorse may be found where an accused will be haunted forever by having killed a family member, and that violence can only lead to worse consequences. In mitigation, the court acknowledged that the accused's youthfulness exacerbated by intoxication played a major role, and that being a first offender, the crime would leave an indelible mark on his conscience.

This Zimbabwean High Court case demonstrates the application of the statutory defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act and illustrates the strict requirements that must be met for this defence to succeed. The case also clarifies the application of constructive intent murder under section 47(1)(b) of the Criminal Code, where an accused realizes the real risk or possibility of death but persists in the conduct. It demonstrates that intoxication does not negate criminal liability where the accused retained sufficient awareness of his actions and their consequences. The judgment also addresses the evaluation of credibility where an accused presents contradictory and evolving versions of events.