The State v Zibusiso Ndlovu

On 27 August 2011, the accused, Zibusiso Ndlovu, owed the deceased, Catherine Impala (aged 31), US$20 for a radio and motorcycle battery. The accused offered to repay the debt with three buckets of maize and came to collect the deceased to take her to his homestead. They passed through a witness's home where the deceased asked the witness to accompany them, but the accused insisted he would help transport the maize himself. Upon arrival at his homestead, the accused sent away other occupants to isolate the deceased. He invited her into the main house under the pretext of showing her the maize, but instead demanded sexual intercourse. When she refused, he forcibly pushed her onto a sofa, cut her panties with an okapi knife, threatened to tie her up, and raped her. During the rape, when the deceased asked him to stop and he refused, she grabbed his testicles and said she would not release him until he dismounted. In response, the accused stabbed her three times in the head and once in the arm with the okapi knife, then throttled her with both hands until she bled from the mouth and nose and died. He then hid her body under a bed. The accused had consumed alcohol earlier that day but was observed walking normally and performing tasks normally.

• Whether the accused was so intoxicated as to be incapable of forming the requisite intention to kill
• Whether the accused acted in self-defence
• Whether the accused had actual intent or constructive intent to kill the deceased

The accused was found guilty of murder with actual intent.

For a conviction of murder with actual intent, the court must be satisfied beyond reasonable doubt that either (a) the accused desired to bring about the death of the victim, or (b) while pursuing another objective, the accused foresaw the death of the victim as a substantially certain result of that activity and proceeded regardless. Where an accused person is the aggressor in an attack, the defence of self-defence is not available when the victim attempts to defend themselves. Intoxication does not negate criminal responsibility where the accused demonstrates sufficient mental capacity to plan and execute deliberate criminal conduct, as evidenced by their behavior and actions before, during, and after the commission of the offence.

The court observed that the accused had satisfied his sexual appetite but chose to continue attacking the deceased rather than stopping the rape and dismounting her. The court noted that the accused's own words in his warned and cautioned statement and evidence in chief demonstrated his deliberate planning and isolation of the victim. The court also noted that witness Nokuthula Moyo, while unable to definitively assess the accused's sobriety, observed that he was walking normally and was capable of performing physical tasks like mixing sand and cement with a shovel.

This case is significant in Zimbabwean criminal law as it demonstrates the application of the actual intent test in murder cases where the accused commits murder in the course of another serious crime (rape). It reinforces that intoxication is not a defence where the accused retains sufficient mental capacity to plan and execute criminal conduct methodically. The case also clarifies that an aggressor cannot claim self-defence when the victim attempts to defend themselves from an ongoing attack. The judgment illustrates how courts assess intent based on the totality of the accused's conduct, including the nature of the attack (multiple stab wounds to the head, strangulation) and the context (continuation of rape despite victim's pleas).