The State v Xolisani Siziba

On 2 October 2018 at approximately 2300 hours at Blue Lagoon beer hall, the accused stabbed his live-in girlfriend, Sehlulekile Mlalazi, with a screwdriver three times (on the head, left ear, and chest). Earlier that day, around 1500 hours, the accused and deceased had a brawl at the same beer hall and were restrained by other patrons. The deceased had previously fled from their home after stealing from a tenant, and the accused had reported her to police, after which she threatened to have him assaulted. On the night in question, the accused claimed he was attacked by the deceased and four men who blocked his escape. One of the men had a screwdriver which the accused wrestled away. The deceased grabbed the accused by the neck and pulled him towards the men. The accused stabbed the deceased who fell, and he then fled. The deceased was found unconscious behind the beer hall on 3 October 2018 at around 0600 hours and died on 4 October 2018 at 1140 hours in the intensive care unit. The cause of death was intracranial hemorrhage and skull injury. Both the accused and deceased had been drinking alcohol, and the accused had also smoked dagga.

• Whether the defence of provocation was available to the accused under sections 238 and 239 of the Criminal Law (Codification and Reform) Act
• Whether the defence of intoxication was available under section 221 of the Criminal Law (Codification and Reform) Act
• Whether the defence of self-defence was available under section 253 of the Criminal Law (Codification and Reform) Act
• Whether the force used by the accused was excessive and disproportionate to the attack
• Whether the accused should be convicted of murder or culpable homicide

The accused was found not guilty of murder but guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act, Chapter 9:23.

Where an accused raises self-defence under section 253 of the Criminal Law (Codification and Reform) Act and some but not all elements are established, particularly where the force used is excessive and grossly disproportionate to the attack (even if the attack was unlawful and escape was blocked), the accused is not entitled to a complete defence but the partial self-defence can reduce the charge from murder to culpable homicide. The test for proportionality is objective: three severe stab wounds causing penetrating injuries to vital areas (head, ear, chest) delivered with a screwdriver is excessive force even when defending against an attack by multiple assailants. For provocation to reduce murder to culpable homicide under section 239, the reaction must be sudden and on the spur of the moment with temporary loss of self-control; a gap of 6 hours after an insult negates this defence. Under section 221, intoxication is only a defence if it causes the accused to lack the requisite intention, knowledge or realization; where the accused admits to appreciating what he was doing, intoxication provides no defence.

The court expressed surprise that in a beer hall full of people, no witnesses observed the stabbing incident and police could not locate any witnesses to shed light on what transpired. The court noted that whatever the reason for the lack of witnesses, it was left only with the accused's version. The court observed that it must guard against adopting an "arm chair approach" when assessing self-defence claims and must take due account of the circumstances in which the accused found himself, including any stress or fear operating on his mind. The court distinguished the case from State v Tevedzayi where self-defence was found to be fabricated to "send the court on a wild goose chase," noting that in this case the paucity of evidence made it impossible to dismiss the accused's version as a figment of his imagination. The court also noted that unlike in State v Shavi, the evidence did not show that the accused continued to strike the deceased after averting the danger or that he foresaw death as a substantial possibility and proceeded regardless.

This case is significant in Zimbabwean criminal law jurisprudence for its comprehensive analysis of the statutory defences of provocation, intoxication, and self-defence under the Criminal Law (Codification and Reform) Act. It demonstrates the application of section 253 regarding self-defence, particularly the requirement that force used must not be grossly disproportionate to the attack. The case illustrates that partial self-defence can reduce murder to culpable homicide even where the requirements for a complete defence are not met. It also shows the court's approach when there is a paucity of independent evidence - the court must carefully assess whether the accused's version can be dismissed as false beyond reasonable doubt. The judgment provides guidance on how courts should objectively assess the threat faced by an accused and the proportionality of their response, while taking due account of the circumstances, stress, and fear operating on the accused's mind as required by section 253(2).