The State v Xolani Ncube

On or around 24 April 2024, the accused suspected that two young men (Bonisani Mafu and Mabambeni Sikhosana) had misappropriated his snooker ball. The accused, accompanied by others, took the two young men to confront them, during which they were assaulted with a firearm. The two young men managed to escape. The deceased heard about the incident and decided to visit the accused to apologise and offer to replace the snooker ball. The deceased, accompanied by witnesses, drove to the accused's residence. Upon arrival, the deceased walked towards the accused holding a packet of drink. The accused discharged his firearm multiple times, shooting the deceased fatally. The deceased sustained four gunshot wounds (two on the chest, one on the left arm, and one on the right arm). The accused fled the scene and remained on the run for approximately five days before being apprehended. No weapons were found at the scene by police officers who attended.

• Whether the accused shot and killed the deceased in self-defense against an alleged robbery, as claimed by the defense
• Whether the accused had the requisite intention (actual intent) to commit murder under section 47 of the Criminal Law (Codification and Reform) Act
• Whether the absence of weapons at the scene undermined the accused's defense of acting against armed robbers
• The appropriate sentence for murder committed with a firearm as an aggravating factor

The accused was found guilty of murder with actual intent in terms of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 25 years imprisonment. The firearm used in the commission of the offense was forfeited to the State.

Where an accused claims self-defense or defense against robbery, such claim must be supported by objective evidence and cannot rely solely on the accused's assertions. The absence of weapons at a crime scene, confirmed by independent police witnesses, can conclusively rebut claims that the deceased and companions were armed attackers. Conduct after an offense, specifically fleeing and evading arrest for an extended period, is inconsistent with lawful self-defense and may evidence consciousness of guilt. Under section 47 of the Criminal Law (Codification and Reform) Act, a person who causes death by discharging a firearm multiple times at an unarmed person possesses the requisite actual intent for murder. Once intention is established under sections 13 and 47, the motive or underlying reason is immaterial to criminal liability and may only mitigate sentence. The use of a firearm in committing murder constitutes an aggravating circumstance that justifies a more severe sentence within the prescribed range.

The court cited with approval the principle from S v Mungoza HMT1/18 that sentencing is a delicate exercise requiring proper exercise of judicial discretion, balancing the interests of the offender and society, with the sentence fitting both the crime and the offender while upholding public confidence in the administration of justice. The court emphasized that while punishment must be proportionate, it should also allow room for mercy and rehabilitation. The court noted that while the State proposed to lead evidence from the deceased's mother, the primary victims were the deceased's wives and children, though the mother's sentiments were considered as those of a secondary victim. The court observed that the Sentencing Guidelines (SI 146/2023) emphasize consideration of victims' circumstances and sentiments in the sentencing process.

This case demonstrates the Zimbabwean courts' approach to evaluating conflicting versions in murder cases, particularly claims of self-defense. It emphasizes the importance of objective evidence (absence of weapons at the scene, police testimony) over self-serving assertions by the accused. The judgment illustrates the application of Zimbabwe's codified criminal law provisions on murder and intention (sections 47, 13, and 12 of the Criminal Law (Codification and Reform) Act). It also demonstrates the application of the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (SI 146/2023), emphasizing consideration of victims' circumstances while balancing mitigating factors. The case reinforces that the use of a firearm in committing murder constitutes an aggravating circumstance warranting enhanced punishment. It also confirms that post-offense conduct (fleeing and evading arrest) can be considered as evidence of consciousness of guilt.