The state v Benn Ngwenya [2025] ZWBHC 37 (25 June 2025)

3 HB 90/25 HCBCR 748/25 THE STATE Versus BENN NGWENYA IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 19 & 25 JUNE 2025 Assessors: - Criminal Trial Ms N Ngwenya for the state Mr T Chimusaru for the accused NDUNA J: - The accused is married to his wife who is at the centre of the murder which the accused is alleged to have committed on 10th of September 2023. It is alleged that the accused stabbed Melusi Ngwenya and caused death. He pleaded not guilty to the offence. This is a case which occurred without any independent observation. The accused alleges that he had gone to the shops on the day in question. He met the deceased. In fact, from his testimony the deceased accosted him. It was not a good approach. There is some previous encounter between the two which had occurred earlier on. The deceased had been taken to a local court, where he was ordered to pay for having had sexual intercourse with the accused’s wife. He had been levied RAND 1000 and by the date of the alleged murder, had paid only RAND500. As the accused was leaving the shops, the deceased followed him. They had walked for about 50 metres when the deceased is alleged to have commenced to attack the accused. One witness passed by, as the two held each other by the collar. The witness spoke about peace between the two and proceeded to her destination. It is that the accused then stabbed the deceased, and left him thereat. The accused proceeded to visit about two homes where he reported the confrontation and the injury to the deceased. It is clear at the very material time the accused stabbed the deceased, there was no third party to witness the stabbing’s sequence. Therefore, the court shall rely on the version given by the accused. Accused states that the deceased got hold of him and had throttled him. He had his knife which he was using on his daily activities. He then took the knife out and stabbed the deceased on the neck. The deceased fell down and met his death. In their addresses, the defence persuaded the court for an outright acquittal of the accused. It provided defences of self-defence and provocation. On the other hand, the state premised their case on provocation alone. They argued that in the event that the court found provocation, then a verdict for culpable homicide should be drawn. Like I said before, the defence is relying on the defence known as self-defence. As already indicated, the accused’s defence is built around the defence of self-defence and our codified law recognizes the existence of this defence. Self-defence which is also referred to as defence of person can be a complete defence if all the requirements set out in section 253 of the Criminal Code are satisfied. It is important to re-state the requirements of this defence as codified in our law. The relevant section reads as follows: “253. REQUIREMENTS FOR DEFENCE OF PERSON TO BE COMPLETE DEFENCE Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if – when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, andhis or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack, andthe means he or she used to avert the unlawful attack were reasonable in all the circumstances; andany harm or injury caused by his or her conduct – was caused to the attacker and not to any innocent third party; andwas not grossly disproportionate to that liable to be caused by the unlawful attack. In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capacity he or she may have had and any stress or fear that may have been operating on his or her mind.” Self-defence or defence of person can be a complete defence if all the requirements set out in subsections (1) (a to d), are satisfied. The requirements for the defence of self-defence and or defence of a third party to be sustained are well known. These were concisely articulated by Professor Feltoe in his handbook, A Guide to Zimbabwean Criminal Law 1991 at p 32 as follows: Unlawful attack.Upon accused or upon a third party where accused intervenes to protect that third party.Attack must have commenced or be imminent.Action taken must be necessary to avert attack. Means used to avert attack must be reasonable.” Having outlined the essential elements of the two defences the learned author proceeded to caution the courts and judicial officers against adopting an armchair approach. His comments in this regard are instructive at p 33 where he says: “The courts do not adopt an armchair approach to situations of self defence. The courts will take into account the invidious circumstances of the accused who was under attack and ask the question, what would the reasonable man have done in the circumstances? They would thus take heed that of the fact that the accused will not have had the time to decide carefully upon what weapon and method of defence he would use. The question is, where the means used necessary to ward off the attack, and were they reasonable in the circumstances? Thus it may be that an accused attacked by a mob armed with sticks and stones may be justified in using a fire-arm to defend himself.” I will now address the case. The accused had done his business and was about to go to his home. The deceased followed him. He caught up with the accused at a distance given as about 50m from the shops. There was confrontation with the deceased attacking the accused. He had held him down. Accused took the knife which he had and stuck it into the side of the deceased’s neck. Thereafter the accused walked home. It is a requirement that one evaluates the attack upon the accused from the deceased. In this case, we were told that the deceased had held the accused tightly on the neck and pressing him down. Accused had his knife which he had been using in his own activities. The accused took out the knife and stabbed the deceased as afore mentioned. Our jurisprudence has already decided that Section 253 requires that each case must be dealt with according to its own circumstances, and that judicial officers must not adopt an armchair approach as cautioned in S vs Banana 1994 (2) ZLR 271 (SC) at 274D-E. In particular, a trial officer is enjoined to take a robust approach rather than try to measure the precise bounds of legitimate self-defence with intellectual callipers. [S vs Ntuli 1975 (1) SA 429(A).] It is thus trite that one must assess the reasonableness of a person’s behaviour when he is acting in self-defence, not in the rarefied atmosphere of the Court, but one must look, even though objectively, at the situation as it existed at the time in relation to the particular person one is considering. [ S vs Phiri SC 190/82]. Burchell in Burchell and Milton Principles of Criminal Law (2005) 230 offers the following definition of private defence: A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful. So here we have the deceased who was confronting the accused. He followed him and during the confrontation which the deceased had authored, the deceased was fatally stabbed. There are two justifications for the existence of private defence. The protection theory emphasises individuals and their right to defend themselves against an unlawful attack. In respect of upholding justice theory, people acting in private defence perform defensive acts, thereby assisting in upholding the legal order. Private defence is meant to prevent justice from yielding to injustice. These are the circumstances which yielded the death of the deceased. We are told that the deceased was involving himself with the accused’s wife to such an extent that he was fined by the local court. He then follows the accused and had a confrontation with him. Clearly the conduct of the deceased and the retaliatory conduct of the accused is justifiable in terms of the law. He is therefore entitled to an acquittal and is found not guilty and acquitted. National Prosecuting Authority, State’s legal practitioners Dube-Tachioa &Tsvangirayi, accused’s legal practitioners 3 HB 90/25 HCBCR 748/25 3 HB 90/25 HCBCR 748/25 THE STATE Versus BENN NGWENYA IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 19 & 25 JUNE 2025 Assessors: - Criminal Trial Ms N Ngwenya for the state Mr T Chimusaru for the accused NDUNA J: - The accused is married to his wife who is at the centre of the murder which the accused is alleged to have committed on 10th of September 2023. It is alleged that the accused stabbed Melusi Ngwenya and caused death. He pleaded not guilty to the offence. This is a case which occurred without any independent observation. The accused alleges that he had gone to the shops on the day in question. He met the deceased. In fact, from his testimony the deceased accosted him. It was not a good approach. There is some previous encounter between the two which had occurred earlier on. The deceased had been taken to a local court, where he was ordered to pay for having had sexual intercourse with the accused’s wife. He had been levied RAND 1000 and by the date of the alleged murder, had paid only RAND500. As the accused was leaving the shops, the deceased followed him. They had walked for about 50 metres when the deceased is alleged to have commenced to attack the accused. One witness passed by, as the two held each other by the collar. The witness spoke about peace between the two and proceeded to her destination. It is that the accused then stabbed the deceased, and left him thereat. The accused proceeded to visit about two homes where he reported the confrontation and the injury to the deceased. It is clear at the very material time the accused stabbed the deceased, there was no third party to witness the stabbing’s sequence. Therefore, the court shall rely on the version given by the accused. Accused states that the deceased got hold of him and had throttled him. He had his knife which he was using on his daily activities. He then took the knife out and stabbed the deceased on the neck. The deceased fell down and met his death. In their addresses, the defence persuaded the court for an outright acquittal of the accused. It provided defences of self-defence and provocation. On the other hand, the state premised their case on provocation alone. They argued that in the event that the court found provocation, then a verdict for culpable homicide should be drawn. Like I said before, the defence is relying on the defence known as self-defence. As already indicated, the accused’s defence is built around the defence of self-defence and our codified law recognizes the existence of this defence. Self-defence which is also referred to as defence of person can be a complete defence if all the requirements set out in section 253 of the Criminal Code are satisfied. It is important to re-state the requirements of this defence as codified in our law. The relevant section reads as follows: “253. REQUIREMENTS FOR DEFENCE OF PERSON TO BE COMPLETE DEFENCE Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if – when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or he or she, believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and that he or she could not otherwise escape from or avert the attack, and the means he or she used to avert the unlawful attack were reasonable in all the circumstances; and any harm or injury caused by his or her conduct – was caused to the attacker and not to any innocent third party; and was not grossly disproportionate to that liable to be caused by the unlawful attack. In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capacity he or she may have had and any stress or fear that may have been operating on his or her mind.” Self-defence or defence of person can be a complete defence if all the requirements set out in subsections (1) (a to d), are satisfied. The requirements for the defence of self-defence and or defence of a third party to be sustained are well known. These were concisely articulated by Professor Feltoe in his handbook, A Guide to Zimbabwean Criminal Law 1991 at p 32 as follows: Unlawful attack. Upon accused or upon a third party where accused intervenes to protect that third party. Attack must have commenced or be imminent. Action taken must be necessary to avert attack. Means used to avert attack must be reasonable.” Having outlined the essential elements of the two defences the learned author proceeded to caution the courts and judicial officers against adopting an armchair approach. His comments in this regard are instructive at p 33 where he says: “The courts do not adopt an armchair approach to situations of self defence. The courts will take into account the invidious circumstances of the accused who was under attack and ask the question, what would the reasonable man have done in the circumstances? They would thus take heed that of the fact that the accused will not have had the time to decide carefully upon what weapon and method of defence he would use. The question is, where the means used necessary to ward off the attack, and were they reasonable in the circumstances? Thus it may be that an accused attacked by a mob armed with sticks and stones may be justified in using a fire-arm to defend himself.” I will now address the case. The accused had done his business and was about to go to his home. The deceased followed him. He caught up with the accused at a distance given as about 50m from the shops. There was confrontation with the deceased attacking the accused. He had held him down. Accused took the knife which he had and stuck it into the side of the deceased’s neck. Thereafter the accused walked home. It is a requirement that one evaluates the attack upon the accused from the deceased. In this case, we were told that the deceased had held the accused tightly on the neck and pressing him down. Accused had his knife which he had been using in his own activities. The accused took out the knife and stabbed the deceased as afore mentioned. Our jurisprudence has already decided that Section 253 requires that each case must be dealt with according to its own circumstances, and that judicial officers must not adopt an armchair approach as cautioned in S vs Banana 1994 (2) ZLR 271 (SC) at 274D-E. In particular, a trial officer is enjoined to take a robust approach rather than try to measure the precise bounds of legitimate self-defence with intellectual callipers. [S vs Ntuli 1975 (1) SA 429(A).] It is thus trite that one must assess the reasonableness of a person’s behaviour when he is acting in self-defence, not in the rarefied atmosphere of the Court, but one must look, even though objectively, at the situation as it existed at the time in relation to the particular person one is considering. [ S vs Phiri SC 190/82]. Burchell in Burchell and Milton Principles of Criminal Law (2005) 230 offers the following definition of private defence: A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful. So here we have the deceased who was confronting the accused. He followed him and during the confrontation which the deceased had authored, the deceased was fatally stabbed. There are two justifications for the existence of private defence. The protection theory emphasises individuals and their right to defend themselves against an unlawful attack. In respect of upholding justice theory, people acting in private defence perform defensive acts, thereby assisting in upholding the legal order. Private defence is meant to prevent justice from yielding to injustice. These are the circumstances which yielded the death of the deceased. We are told that the deceased was involving himself with the accused’s wife to such an extent that he was fined by the local court. He then follows the accused and had a confrontation with him. Clearly the conduct of the deceased and the retaliatory conduct of the accused is justifiable in terms of the law. He is therefore entitled to an acquittal and is found not guilty and acquitted. National Prosecuting Authority, State’s legal practitioners Dube-Tachioa &Tsvangirayi, accused’s legal practitioners