THE State V Mondliwethu Msebele

### Preamble
1
HB 180/25
HCBCR 4880/25
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THE STATE

Versus

MONDLIWETHU MSEBELE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 21 OCTOBER 2025

Assessors: 	Mr Mbizo

Mrs TShuma

Criminal trial

Ms T Mutukwa, for the state

A Chimatula, for the accused

NDUNA J: -   On 26th of April 2025, the accused is said to have arrived home and took to accuse the deceased of having stolen his money from underneath the bed where he kept it. The accusations seem not to have been taken well by the deceased who took to attack him using a bottle. In the ensuing scuffle the accused took the bottle and attacked the deceased inflicting fatal injuries from which the deceased passed on.

Upon his trial before this court, the accused raised the defence of self-defence. He alleges that the deceased was now attacking him and he took possession of the bottle and struck him twice. However, the accused admits that the deceased passed on as a result of the injuries from which he suffered. There is no evidence as regards the attack or the fight save the accused’s words. It was at night and they scuffled inside their own home. The witness who testified only extended his words to the events which had occurred after the fatal assault had been perpetrated by the accused.

The state over and above the evidence of the witness, tendered with the consent of the accused, the Post Mortem report and the accused’s warned and cautioned statement. In his caution that accused does not dispute being involved in the fight but asserts that he acted in self-defence. The Post Mortem shows that the deceased passed on as a result of stab wounds. The deceased suffered seven (7) stab wounds which culminated into his death. He was injured in the following ways: -

Incisional wound 4cm left temporal region with irregular margins

Incisional wound left temporal region 3cm with irregular margins

Incisional wound left temporal region in front of the left ear 2cm

Deep incisional wound on the left cheek under the mandible (5x3x3cm)

Incisional wound on the left lower arm (3x2x3cm)

Incisional wound on the base of index finger (2cm) irregular margins

Incisional wound left knee (2x1 cm)

As a result, the Doctor was of the view that the deceased had met his death as a result of: -

Acute cardiac failure

Haemorrhagic shock, and,

Lacerated left radial vessels.

It is after the accused has caused such extensive injuries upon the deceased that he claims to have been acting in self-defence.

Indeed, self-defence is an available defence on a charge of murder. CR Snyman Criminal Law 6 ed (2014) at 102 defines private defence as follows:

“A person acts in private defence, and her act is therefore lawful, if she uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack.”

Snyman draws a distinction insofar as the requirements of private defence are concerned and deals firstly with the requirements of the attack with which a person who acts in private defence must comply, and secondly the requirements with which the defence must comply.

Insofar as the requirements of the attack are concerned, the attack must be unlawful, the attack must be directed at an interest which legally deserves to be protected and the attack must be imminent but not yet completed.

The requirements for the defence of private defence are therefore the following;

It must be directed against the attacker.

The defensive act must be necessary. Here one considers whether there is a duty to flee, and the defensive act must be the only way in which the attacked party can avert the threat to his/her rights or interest.

There must be a reasonable relationship between the attack and the defensive act. Here it is not necessary that there be a proportional relationship between the nature of the interest threatened and the nature of the interest impaired.

The attacked person must be aware of the fact that he/she is acting in private defence.

The test is an objective one and the courts have emphasised that one should not judge the events like an armchair critic, but rather place oneself in the shoes of the attacked person at the critical moment and bear in mind that at such point in time the attacked person only has a few seconds in which to make a decision. The court should then ask whether a reasonable person would have acted in the same way in those circumstances. A person who suffers a sudden attack cannot always be expected to weigh up all the advantages and disadvantages of his/her defensive act and to act calmly.

The Supreme Court of Appeal of South Africa in S v Steyn 2010 (1) SACR 411 (SCA) stated in respect of the private defence the following:

Every case must be determined in the light of its own particular circumstances, and it is impossible to devise a precise test to determine the legality or otherwise of the actions of a person who relies upon private defence. However, there should be a reasonable balance between the attack and the defensive act as ‘one may not shoot to kill another who attacks you with a flyswatter’.  As Prof J Burchell has correctly explained ‘. . . modern legal systems do not insist upon strict proportionality between the attack and defence, believing rather that the proper consideration is whether, taking all the factors into account, the defender acted reasonably in the manner in which he defended himself or his property’.

In this case we have an accused who seizes a weapon and uses it to stab the deceased seven times. Clearly it would severely be unfortunate to adjudge that the accused was still defending himself in the manner he attacked the deceased up to seven times. He was exceedingly aggressive such that the sentiments thrived at by the state is very persuasive. If the accused in fact foresaw the possibility of the consequences in question (and was reckless as to whether or not they did result), he intended them in the legal sense. In other words, foresight of possibility of death must be subjectively be found to have existed in the mind of the accused, not just serious injury only. See R v Horn 1958 (3) SA 457 (AD). Because one cannot stab the other seven times and still had the desire of him living. If the accused had stabbed the deceased once or twice, or even three times the court could have accepted his story. The accused did not expect him to live after being stabbed seven times.

Accordingly, the accused should be found guilty in terms of section 47 (1) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: - Murder with constructive intent.

Reasons for sentence

Whilst it is acceptable that the deceased may have taken the accused’s money and thus acted in a way which led to his death, it is not acceptable that those who err against us are punished by death. It was expected that the accused was to move towards the recovery of his money as opposed to killing the deceased.

In coming up with a sentence the court is obligated to fashion such a penalty that is proportionate to the crime beforehand. In this instance the term “crime” connotes the offender, the offence and the society and that the interests of this triad must be taken care of in the process. S v Zinn 1969 (2) SA 537 (A) at 540G is the locus classicus. It was referred to with approval in S v Shariwa HB 37/2003, S v Rosemary Manyevere HB 38/ 2013 and Wilson Mangena & Ors vs The State HB 22/2005.

Judge JOFFE sitting at the South Gauteng High Court Johannesburg SA expanded on the principles enunciated in S v Zinn (supra) in The State vs Jacob Sello Selebi Case No. SS25/2009 so explicitly that I would extensively quote the relevant passage and do justice to the Honourable Judge’s exposition of the concept. It was approached thus;

The principles applicable in determining a fair, balanced and appropriate sentence have long been laid down. In S v Zinn 1969 (2) SA 537 (A) at 540 G it was held that "What has to be considered is the triad consisting of the crime, the offender and the interests of society." In determining an appropriate sentence regard must be had inter alia to the main purposes of punishment. These purposes were described in R v Swanepoel 1945 AD 444 at 455 as deterrent, preventative, reformative and retributive, in S v Rabie 1975 (4) SA 855 (A) at 862 A-B reference was made to Gordon, Criminal Law of Scotland, (1967) at 50 where it was stated that "The retributive theory finds the justification for punishment in a past act, a wrong which requires punishment or expiation... The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment".

In S v Khumalo and Others 1984 (3) SA 327 AD at 330 E it was held, that deterrence has been described as the "essential", "all important", "paramount" and "universally admitted" object of punishment. The Appellate Division, as the Supreme Court of Appeal was then known, proceeded to state in the Khumalo judgment, that the other purposes of punishment are accessory to deterrence, in this regard reference was made to R v Karg 1961 (1) SA 231 at 236 A-B where it was held while the deterrent effect of punishment has remained as important as ever, the retributive effect, whilst by no means absent from the modern approach to sentencing, has tended to yield ground to aspects of prevention and correction. It was however pointed out in the Karg judgment, as far as the retributive effect of punishment is concerned, that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.

The foregoing though noted in the South African context is applicable in our situation. The accused in this case need to be punished in such a way as would satisfy all concerned with the offence he committed. He, himself must also be satisfied with the penalty. In this view the penalty must   not be too long or too short. The Sentencing Guidelines calls for the imposition of an appropriate penalty which encompasses all the factors of the offence. The court also takes into account that the deceased had taken the accused’s money and the conduct set all that transpired into motion.

Accordingly, a prison term of 13 years is appropriate.

The National Prosecuting Authority, state’s legal practitioners

Tashaya Law Chambers, accused’s legal practitioners