The first and second accused pleaded not guilty to a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that they murdered the deceased on 18 November 2008. The deceased was their paternal grandfather. They were staying with him in Mhondoro. Their father had died, and their mother stays in Epworth in Harare.

The accused persons were charged with murder. The State alleged that they planned to eliminate the deceased. Accused One armed himself with a knobkerry and went to where the deceased was sleeping in the verandah. He, while Accused Two stood guard, struck the deceased twice on the head.

Accused One's defence is that he acted in self defence when the deceased had cornered him in a corridor.

He said the deceased was armed with a raised spear. He struck the spear from the deceased's hand. The deceased remained standing in the corridor blocking his escape route. He then struck the deceased once on the head to create an escape route, and escaped. He thereafter sent Accused Two to go and see the injury he had caused. Accused Two made a report to him and they, together, went to see the deceased's injuries after which they devised a plan to allege that thieves had invaded the homestead and injured the deceased.

Accused Two's defence is that he did not participate in the struggle between Accused One and the deceased.

He said the deceased came to their room before 04:00am, looking for Accused One. He was armed with a spear. Accused One was not in the room having gone to attend a traditional ceremony in the village. He reported this to Accused One when he came back at 04:00am. Accused One then said maybe the deceased had come because they had delayed in going to plough the fields.

Accused One went to collect cattle harnessing equipment. He there met the deceased and came back and told him that he had struck the deceased with a stick. He asked him to go and observe the deceased's condition. He did and brought a report to Accused One. He later went back to the deceased with Accused One, after which they connived to allege that thieves had invaded the home so they could blame the deceased's injury on the thieves.

Evidence was led by the State and the accused persons. There were no independent eye witness's to the murder.

The State relied on the evidence of Elizabeth Chanengeta and the accused person's confirmed warned and cautioned statements.

Elizabeth Chanengeta was the deceased's wife and is the accused's grandmother. She was asleep when the incident took place. She was woken up by the accused persons after the deceased had already sustained the injury which caused his death. Her evidence is therefore merely on what she witnessed after the fatal blow had been delivered.

The postmortem report does not support the delivery of two blows as alleged in the State Outline. It confirms Accused One's evidence that he struck the deceased once on the head to create an escape route. The deceased had cornered him in a corridor.

Accused One's warned and cautioned statement refers to his delivering two blows. Accused One however explained it by saying the first blow was to the spear and the second to the deceased's head. We accept that explanation as it is supported by medical evidence.

The probabilities favour the accused person's explanation.

If the accused persons had planed the murder, as alleged by the State, they would have killed the deceased, who lay helpless in the corridor, before calling out that thieves had invaded the homestead.

Why would they risk his surviving to narrate what had happened?

We are convinced the deceased was injured in the circumstances narrated by the accused persons.

After the determination of the above the following facts became common cause:

The accused persons are the deceased's grand children. They stayed with him and his wife in Mhondoro. They are the deceased's late son's children. Their father died leaving them in the custody of their paternal grandparents. Their mother stayed in Epworth with their two siblings.

The accused persons were not happy with their living conditions. Their grandfather, the deceased, used to wake them up before dawn to go and plough fields. That, according to their mother, was his way of life even during the period she stayed with him as a daughter in law.

On the fateful night, Accused One attended a traditional ceremony and came back home at 04:00am. He received a report from Accused Two that the deceased had been looking for him and that he was carrying a spear. He assumed that the deceased wanted them to harness cattle and go to the fields to plough. He went to get cattle harnessing tools from where they are kept. He carried a T shaped curved stick he said they used whenever they go to the fields to plough. He entered a corridor from which he was to access the room where the harnessing tools were kept.

While he was in that corridor, he saw the deceased coming from behind, armed with a raised spear. The first accused struck the spear with the stick he was carrying and it fell down. The deceased then stood in the passage unarmed. The first accused struck him on the head with the stick. The deceased fell to the ground. The first accused went back to their room and told Accused Two what he had done. He sent Accused Two to go and see the deceased's condition. Accused Two came back and reported that the deceased condition's was serious. They went back to the scene, saw the deceased's condition and agreed to report to their grandmother that thieves had invaded the homestead so that they would blame the deceased's injuries on the alleged thieves.

They gave chase to the imaginary thieves until their grand mother called them back fearing that they would be injured. They came back and took their grandmother to where the deceased was. They saw that his condition was critical. The news of the incident started spreading in the village. As people gathered at the homestead, the accused persons agreed to hide the stick Accused One had used. Accused Two threw it into a blair toilet.

Arrangements were made to take the deceased to a clinic. The clinic could not attend to him due to the seriousness of the injuries. They later attempted to take him to the District Hospital but he died on the way.

The police came while Accused One, and others, were taking the deceased to hospital. Accused Two, who was at home, told them that the deceased had been attacked by thieves. They went back to their station and came back after the deceased had died and his body had been brought back home. Accused Two, again, told them that the deceased had been attacked by thieves. They took him to the police station, where, after further questioning, he owned up and told them the truth, that, the deceased had been struck on the head by Accused One.

Accused One was arrested.

The accused persons recorded warned and cautioned statements in which they told the police that Accused One had struck the deceased in the circumstances explained in Accused One's statement.

At the time of the deceased's death, Accused One was no longer going to school. The parties are not agreed as to whether or not Accused Two was still going to school. It is however common cause that he had previously been taken by his mother, to Harare, where he attended a school she had secured for him. He however ran away from that school and walked from Harare to Mhondoro on foot. He chose not to go back to his mother's house in Epworth.

This demonstrates the second accused's preference as to where he wanted to stay despite the deceased's demand of hard work from the accused persons.

There are minor differences between the State's and defence evidence. These are on peripheral issues and do not contribute to the determination of the question whether or not the accused persons are guilty of the offence charged.

Accused One

It is apparent from the common cause evidence that Accused One is raising the defence of person as provided in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9;23] (the Code).

Section 253 of the Criminal Law (Codification and Reform) Act (the Code) provides as follows;

“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an 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 -

(a) 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

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct -

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) 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 capability 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 first accused's uncontroveted evidence established that he, on the fateful night, came from a traditional ceremony at 4:00am. He received a report that the deceased was looking for him and was armed with a spear. He believed that the deceased wanted him and his young brother, Accused Two, to go and plough as was the norm at the deceased's home.

He took a stick he said they normally use when they go to the fields to plough. He proceeded to the room where cattle-harnessing tools were kept. While he was in a corridor leading to that room he saw the deceased behind him armed with a spear. The spear was raised up ready to attack. He struck the spear with his stick. It fell to the floor, but, the deceased remained standing in the corridor blocking his escape route. He struck the deceased once on the head. The deceased fell down and the first accused escaped.

He went to their room where he instructed Accused Two to go and check on the deceased's condition. The second accused told him that the deceased had been seriously injured. They went to the scene together and later devised a plan to divert attention from Accused One by alleging that thieves had invaded the homestead.

When these facts are applied to section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), it becomes clear that;

(a) The first accused reacted to an unlawful attack which was imminent. The deceased held a raised spear in his hand.

(b) The first accused's conduct, in striking the spear, was necessary to disarm the deceased. He had no other means of escaping from the raised spear. He then struck the deceased once on the head. He said the deceased was blocking his escape route. He had received a report that the deceased was looking for him armed with a spear.

Counsel for the State argued that once the spear was on the floor the first accused should have simply run past the deceased or pushed him aside as he was a 79 year old man.

Counsel for the accused submitted that the first accused was acting under stressful conditions. He feared the deceased would pick the spear and use it to stab him.

The question which arises is whether the first accused believed, on reasonable grounds, that his conduct was necessary to avert the unlawful attack and that he could not otherwise escape from or avert the attack.

The history of the deceased and the accused's relationship comes into play.

The first accused, in his evidence, said the deceased was a violent man who did not hesitate using any weapon at hand. The accused's grandmother indirectly confirmed this when she confirmed an incident in which the deceased chased away the accused person's mother with a spear when she came to pay her condolences to her in-laws on the death of her husband. The accused persons' mother confirmed the incident.

There was also the issue of the birth certificate the first accused had asked the deceased about resulting in his being threatened with being stabbed with a spear.

In my view, the first accused must have reasonably believed that striking the deceased was a necessary means of escaping from the deceased's imminent attack. He said he feared the deceased would pick up the spear and use it on him. The accused's reasoning is supported by the fact that he struck the deceased once and ran away. The post-mortem report confirms that only one blow was delivered. If his intention was to kill the deceased he would have delivered further blows. The fact that he did not confirms that he merely wanted to clear his escape route.

He thereafter sent Accused Two to check on the deceased and subsequently came back to the scene with him.

He did not use these opportunities to inflict further injuries on the deceased.

This proves the first accused merely wanted to escape from the corridor where he believed the deceased had cornered him.

(c) The fact that the first accused struck the deceased once, and escaped from the corridor, confirms that the means he used to avert the unlawful attack was reasonable in all the circumstances. The fact that he merely wanted to escape is demonstrated by his not inflicting further harm when he had the opportunity to do so.

(d) The deceased was armed with a spear. The first accused was armed with a stick. It is obvious that the deceased's weapon was more dangerous than the first accused's. When he struck the spear down he did not decide to pick it and use it, though he feared the deceased would pick it and use it on him. His striking the deceased with the stick is, in the circumstances, not grossly disproportionate to the harm that could have been caused by the deceased's unlawful attack with a spear.

In determining whether or not the requirements specified in subsection (1) have been satisfied, I have considered the relationship between the deceased and the first accused.

They did not enjoy a good relationship as explained above.

The deceased used to display aggression towards the accused. The accused found himself having to go and harness cattle at 4:00am because the deceased was looking for him with a spear. As he went to collect the harnessing tools the deceased followed him from behind with a raised spear. That must have caused the first accused to extremely fear for his life. He was, as a result of the history already narrated, a child living under stressful circumstances. He feared the deceased and must have been spurred by his knowledge of the deceased to act in the manner he did.

It would be taking an armchair approach to expect him to have reacted other than he did.

He acted in the spur of the moment. He did not have time to rationalize things, as one would in the comfort of a courtroom or a judge's chambers.

I would, in the circumstances, find that the first accused acted in circumstances where self defence should be accepted as a complete defence to the charge he is facing.

My view, that the first accused is entitled to a complete defence, is strengthened by the provisions of section 255 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) which provides as follows;

“If a person genuinely, and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence in terms of this Part to any criminal charge in all respects as if his or her belief were in fact correct.”

This means, even if the first accused genuinely, on the reasonable grounds explained above, but mistakenly, believed that the deceased would pick up the spear and stab him, he would still be entitled to a complete defence.

The mistake would be genuine in view of it being made by a juvenile, in a moment of fear, in the absence of time within which he could nicely weigh the pros and cons of the action he was to take.

Section 255 of the Criminal Law (Codification and Reform) Act applies to any criminal charge, and, therefore, includes a charge of murder.

The first accused is therefore found not guilty and is acquitted.

The defence of defence of person is provided for in Section 253 of the Code. It provides as follows:

"(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself, or another person, against an 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;

(a) 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

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct:

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) 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 capability that he or she may have had and any stress or fear that may have been operating on his or her mind."

The provisions of Section 253(1)(a) to (d) of the Code must all be satisfied before the defence of person can succeed as a complete defence. This is because the word "and" is used to link the subsections to each other. The word "and" is a conjunctive. It joins the requirements of subsection (1)(a) to subsection (1)(b), and subsection (1)(b) to subsection (1)(c)  and carries on with the same arrangement to subsection (1)(d)(ii). The joinder of requirements means they should all be satisfied for the defence to succeed as a complete defence. 

Section 253(2) of the Code confirms this by pointing out that the court must determine whether or not the requirements specified in subsection (1) have been satisfied. This means they must all be satisfied, otherwise the legislature would have said the court should determine whether some of the requirements have been satisfied.

In terms of section 253(1)(a) of the Code, one can kill in self-defence, against an unlawful attack, if he does or omits to do anything which is an essential element to the crime of murder when the unlawful attack had commenced or was imminent or the accused, on reasonable grounds, believed that the unlawful attack had commenced or was imminent. If the unlawful attack has not commenced and is not imminent, as was the case when the accused armed himself and positioned himself for a second encounter, the provisions of 253(1)(a) of the Code cannot be said to have been satisfied.

If one gets away from an unlawful attack and comes back to initiate another attack in which he hopes to defend himself, the defence of defence of person will not be available because in terms of section 253(1)(b) of the Code his conduct was not necessary to avert the unlawful attack. The unlawful attack had been stopped. The accused had been assisted by Tapfumaneyi and Concilia to escape from it.,. He could not reasonably have believed that his conduct in coming out was necessary to avert an unlawful attack and that he could not otherwise escape from or avert the attack.,. There was no need for him to challenge the deceased or draw his attention to his having come out of the house. A reasonable man could have quietly gone to report the incident to the police.

Even if he had been under an unlawful attack, the means he used to avert the purported unlawful attack was not reasonable in all the circumstances. He came out with a double-edged ceremonial dagger to fight the deceased who was not armed. The supremacy of his weapon far out-weighed the deceased's ability to beat him with his bare hands and booted feet. The harm he caused was grossly disproportionate to that which the deceased could have caused on him using his hands and booted feet.

The inquiry into the accused's conduct cannot be complete without considering the circumstances in which he found himself, including any knowledge or capability he may have had and any stress or fear that may have been operating on his mind.

The accused deliberately created the circumstances in which he stabbed the deceased. He had been taken away from a fight with the deceased. He chose to come out and position himself for a second encounter, which he was sure to win. The knowledge, capabilities, and stress or fear he might have had cannot assist him. He knew the deceased was able to beat him, so he should not have come out.,. He came out of the house because he wanted a second encounter with the deceased.

The State submitted that self-defence cannot be sustained as the deceased was not armed when she was injured.

We agree that the defence of self-defence cannot be sustained.

Re: State v Farai Mavhundu

In this case the scrutinising Regional Magistrate opined that the accused's guilty plea ought to have been altered to one of not guilty.

The charge is one of assault and during the canvassing of the essential elements, the accused was asked “what was your intention?” and his response was, “I was defending my wife.”

Ordinarily, such an answer gives rise to a triable issue of defence of a third party. In the instant case, however, I am not persuaded that there was such a defence open to the accused in view of the common cause facts of this case. If an accused person's wife has an altercation with a complainant in the absence of the accused and the accused later comes home and is appraised of the altercation then approaches the complainant and assaults him with fists and booted feet several times with severe force occasioning a severely bruised neck and face (as per the medical report), I cannot comprehend the existence of such a defence especially where the accused also says he assaulted the complainant because he was insulting his wife. The requirements for such a defence are absent because the accused emerged on the scene much later after the event. There was no longer any imminent threat/danger of attack to the wife by the complainant which would have entitled the accused to act in defence of his wife. In the event, the trial magistrate was not obliged to alter the accused's plea to not guilty.

We…, find that during the initial stages of the fight the accused was at the receiving end. He, however, gained an upper hand when he stabbed the deceased on the arm which eventually weakened the deceased causing him to fall on to the ground. The accused was then completely in control. He sat on the deceased and stabbed him on the stomach, abdomen, neck and the head. He even, at one stage, stood up and walked a few steps from the deceased as if satisfied by what he had done but came back to kick and stab the deceased again asking if he had died.

We are therefore satisfied that he was not defending himself when he stabbed the deceased who had fallen to the ground having been weakened by the stab wound on his arm. He then was at large, to the extent that he could walk away and come back to continue with the murderous attack. The deceased was no longer fighting him. He lay helplessly on the ground causing the accused to ask if he had died. The accused was no longer in danger. The attack against him had stopped. His assailant had been incapacitated to the extent that the accused thought he had already died. That is why he kicked him and asked “are you dead?”

The defence of self defence is not available to the accused person if one has regard to the provisions of section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It provides as follows:

“1. Subject to that Part, the fact that a person accused of a crime of murder was defending himself or herself or another person against an 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:

(a) When he or she did or omitted to do the thing, he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) 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;

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances and; …, etc.”

On the facts of this case, the circumstances clearly show that the victim had been rendered unconscious. There was no imminent danger. The accused could have easily escaped without using the knife. Death could have been avoided.

The accused's criminal liability

In deciding the accused's criminal liability, we had to rely on the evidence of the two witnesses who were present at the scene, that is the accused herself and Patience Muzenje. While the accused admitted assaulting the now deceased with the brick and inflicting the fatal blow she raised the defence of self- defence as defined in section 253(1)(a) to (d) of the Code [Chapter 9:23]. 

The question to be answered is whether, on the evidence on record, such a defence is available to the accused.

I have already alluded to the accused's version, as per her Defence Outline and warned and cautioned statement. The accused's evidence is that she was first assaulted with booted feet and clenched fists while seated by the fire with her baby strapped on her back. Her pleas for help did not yield any help. The accused said, instead, the now deceased went to pick a piece of firewood and advanced towards the accused who still had a child on her back. It is at that stage that the accused said that she picked the brick and hit the now deceased in a bid to protect her child.

The accused's version was dismissed as completely false by the State witness, Patience Muzenje, who, in our view, is the key State witness. I now deal with her testimony.

Patience Muzenje told the court that the accused and the now deceased firstly quarrelled at about 1800 hours and she intervened and they stopped. Later that evening, as she was in her kitchen hut, Patience Muzenje said she heard the accused and the now deceased shouting at each other again and realised that the two were fighting. She observed, as she came out of her kitchen hut, that the now deceased was assaulting the accused, who was seated, with clenched fists. This evidence is not disputed by the accused. Patience Muzenje said the accused stood up.The accused's baby was not on her back but seated by the fire. Patience Muzenje said when the accused stood up a fist fight ensued and after a brief exchange of blows the two held each other. Patience Muzenje said she had her baby on her back and unable to intervene to restrain the two besides verbally telling them to stop fighting. She said the two disengaged on their own. Patience Muzenje then explained how at that stage the now deceased was injured with a brick.

Patience Muzenje said as the two disengaged, the accused remained by her fireplace and the now deceased turned walking away towards his nearby hut. It is at that stage that Patience Muzenje said the accused picked a brick from her fire place used as “mapfiwa” and threw it at the now deceased hitting him on the left side of the head causing him to fall down groaning in pain. Patience Muzenje was clear that the accused, at this point, was not under attack as the now deceased was walking away and about three meters away from the accused and about to enter his hut. She dismissed as false that the now deceased had picked a piece of firewood or that he was advancing towards the accused. Patience Muzenje said the now deceased did not use any weapon besides clenched fists.

Patience Muzenje was extensively cross examined and the colour of her evidence did not change. She denies that the accused had a baby on her back at the material time but that the baby was seated at the fireplace crawling as the two were fighting. She denied that the now deceased, at any stage, picked a piece of firewood readying to attack the accused.

We were very impressed by Patience Muzenje as a witness. She gave a very clear account of how the events unfolded. She was an eyewitness. Her evidence is not tainted with contradictions and the vigorous cross-examination she was subjected to did not have an adverse effect on her evidence. Our view is that she is a credible witness. Patience Muzenje impressed us as a fair witness who was not keen to exaggerate the roles by the accused and the now deceased. She did not seek to minimise the now deceased's role and clearly stated that initially he was the aggressor. She dismissed as untrue that the now deceased was drunk and that was corroborated by Levious Kondowe. In our view, Patience Muzenje had no motive to lie. She is closely related to both the accused and the now deceased. The accused admitted that she enjoyed good relations with Patience Muzenje.

It is our finding that the accused's version of events is not true….,.

The accused has therefore misled the court about the now deceased's sombriety. The accused also lied that she was carrying her baby at the material time. All these fabrications were not only designed to mask the truth but to create the impression that the accused acted in her defence and that of the baby against the drunk aggressor when she picked the brick. The accused did not impress us as a truthful witness. Her demeanour was poor. The truth of the matter is that the accused retaliated in anger not that she acted in self-defence.

I must now consider the second defence peddled by the accused as he clearly shifted from provocation to the defence of self-defence as he gave his evidence-in-chief.

The requirements of self defence, as a defence, recognise that in appropriate situations an accused may be justified to inflict serious harm against the victim in order to ward off an attack against self. Again, this is not just a fanciful defence but must be borne out by the particular circumstances confronting an accused person before he acts in the manner that he does.

The accused himself gave an explanation as to the circumstances which were present when he attacked the deceased. In one breath he said he hit the deceased in order to punish her for encouraging his enemies, Maseure and Peace, to pierce his eye, and, in another breath, he said he struck the deceased with a dibble as punishment for her alleged promiscuous conduct.

There is another side of the story that justifies our rejection of the accused's defence of self defence as against the deceased.

Juliet Mwenje, whom we have already found out to have been a credible witness, told the court that upon returning to the room, having failed to call back Jacob Rutanha to deal with the situation he had created, she found the accused throttling the deceased. Her evidence was that the accused's immediate reaction on seeing her was to threaten to stab her with a knife which he wielded towards her. At this stage, the witness remained close by and hopelessly stood by the door to witness the horrors of the day. Juliet Mwenje's evidence was to the effect that at the stage the accused was throttling the deceased, the deceased was struggling to escape with the accused uttering the words: “I want to bring an end to your prostitution.” The witness further enlightened the court on how the accused was holding the deceased. She said that at that stage, the accused was holding the deceased by the neck with his left hand which forced the deceased to tilt her body backwards facing upwards with her arms raised whilst the accused's right hand was clutching the murder weapon, exhibit III, in an attacking or striking position. At that stage, she heard the deceased telling the accused to leave her alone since they had already separated or “divorced”.

Counsel for the appellant indicated that he had no meaningful submissions to make on both conviction and sentence. 

The decision by counsel for the appellant that the court a quo did not misdirect itself in returning the verdict of guilty of murder with actual intent to kill and imposing the death sentence on the appellant is supported by the facts.

It was common cause before the court a quo that on 7 June 2003, at 1830 hours, the appellant struck the deceased with a log on the part of the head between the right occipital and temporal regions. The blow felled the deceased but the appellant went on to deliver two more blows on the head, and a further two on the body, with the log. The deceased lay motionless as the appellant assaulted him. The appellant stopped beating the deceased when he saw Ephraim Khabo approaching him. He fled from the scene leaving the deceased lying on the ground bleeding from the injuries on the head.

The deceased was, later that evening, admitted to the intensive care unit at Mpilo Hospital in Bulawayo. He died in the intensive care unit on 7 July 2003….,.

The appellant said he assaulted the deceased in self-defence. The issue before the court a quo was whether the deceased was the aggressor.

The evidence on which the court a quo found the facts on which it rejected the appellant's defence was to the effect that the deceased was struck by the appellant from behind whilst running away.

The evidence was to the effect that at about 6pm on 7 June, the deceased left a local bottle store and joined his cousin, Never Khabo, going home. The two met Langton Mpofu and Mloyiswa Sweswe who were going in the opposite direction. They all resided in Kennilworth Village 5 in Inyathi and are related. When the four stopped to greet each other, Mloyiswa Sweswe, who is a son-in-law to Never Khabo, stood aside and held a conversation with the deceased. Langton Mpofu and Never Khabo stood a few metres away talking to each other.

It so happened that the appellant had been walking about 20 metres in front of Langton Mpofu and Mloyiswa Sweswe before they met Never Khabo and the deceased. The appellant was a stranger in the village visiting Violet Tshuma. Never Khabo, Langton Mpofu, Mloyiswa Sweswe and the deceased met on the road near Violet Tshuma's homestead.

The appellant went into Violet Tshuma's homestead. A few minutes later he approached the deceased and asked for a cigarette. The deceased told the appellant that he had no cigarette. The appellant said to the deceased: “You Santana MDC member, I am a ZANU (PF) member – I will kill you today.” 

“Santana” was the deceased's nickname. MDC and ZANU (PF) are different political parties.

Soon after uttering the words, the appellant picked bricks intending to throw them at the deceased. Mloyiswa Sweswe remonstrated with the appellant telling him to be ashamed of threatening to assault an old man. The deceased was aged 44 years. The appellant was aged 20 years. He took heed of what Mloyiswa Sweswe said and dropped the bricks. The appellant went to the deceased and snatched his hat. He struck the deceased on the face with the hat once before leaving the scene. He returned to Violet Tshuma's homestead. The deceased did not react to the abuse he received from the appellant. He was drunk.

After the appellant left the scene, Langton Mpofu and Mloyiswa Sweswe bade Never Khabo and the deceased farewell and went their way. Never Khabo and the deceased walked towards Never Khabo's homestead. Little did they know that the appellant was watching their separation from Langton Mpofu and Mloyiswa Sweswe. When Never Khabo and the deceased had walked about 50 metres, the appellant pulled a log from a plate rake at Violet Tshuma's homestead. He ran after the two armed with the log.

Rebecca Mkandla was at her homestead next to that of Violet Tshuma. She saw the appellant running towards Never Khabo and the deceased armed with the log. Rebecca Mkandla called out to the two warning them of the impending danger. Never Khabo ran to her maternal uncle's homestead. The deceased ran towards Rebecca Mkandla's homestead with the appellant in hot pursuit. When the deceased got to the homestead, the appellant struck him with the log on the right occipital region of the head. He fell down. The appellant delivered two more blows on the head rendering the deceased motionless.

As the appellant assaulted the deceased with the log, Rebecca Mkandla was screaming. Her screams attracted the attention of Ephraim Khabo who was in a homestead nearby. He ran to the scene of the crime and found the appellant striking the deceased on the head with the log. 

Ephraim Khabo is a member of the special constabulary based at Kennilworth Police Base.

Upon seeing Ephraim Khabo approach, the appellant stopped the assault on the deceased and ran away. He went through a space between strands of barbed wire fence separating Rebecca Mkandla and Violet Tshuma's homesteads. Ephraim Khabo gave chase until he caught hold of the appellant. A struggle ensued until Ephraim Khabo dispossessed the appellant of the log. The appellant managed to make good his escape. The log was 113cm long, 16.5cm thick and weighed 985grams.

The evidence of the appellant was to the effect that when he found Never Khabo, Langton Mpofu, Mloyiswa Sweswe, and the deceased, standing on the road near Violet Tshuma's homestead, one of the young men invited him to a traditional beer drink. He said he told the young man he did not drink traditional beer. This angered the deceased who asked who he thought he was to say he did not drink traditional beer. The deceased pursued him as he moved away and hit him on the back with a stone. He said he took a log and struck the deceased five times on the head as he tried to pick more stones.

The appellant's Defence Outline contained allegations he made in the confirmed warned and cautioned statement. When he gave evidence-in-chief, the appellant said that the deceased clapped him twice on the ear. He fell down before getting up and running towards Rebecca Mkandla's homestead. The deceased chased after him until they got into the homestead. He took a log and struck the deceased on the head felling him. The appellant said, out of anger, he delivered two more blows on the deceased's head and another two on the body whilst the deceased was on the ground.

There were good reasons why the court a quo accepted the version of the events as narrated by the State witnesses. The appellant told the court a quo that he was a staunch supporter of ZANU (PF) and could not give up his membership of the political party for anything. The State witnesses would not have known that he was a member of ZANU (PF) if he had not uttered the words attributed to him. The appellant was a stranger in Village 5. He had only been there for a week.

The young men who were in the company of the deceased at the time were Langton Mpofu and Mloyiswa Sweswe. Whilst the appellant alleged that one of them invited him to a traditional beer drink, they denied doing so. Mloyiswa Sweswe remonstrated with the appellant when he threatened to strike the deceased with bricks.

On the appellant's version of events, there was no time when Never Khabo separated from Langton Mpofu and Mloyiswa Sweswe. According to him, the events leading to the fatal blow on the occipital region of the deceased's head, started with the deceased asking him who he was to say he did not drink traditional beer. The facts show, however, that at the time the appellant and the deceased ran to Rebecca Mkandla's homestead Langton Mpofu and Mloyiswa Sweswe had long left the scene.

The appellant did not mention, in the warned and cautioned statement, that the deceased clapped him twice on the ear felling him. Rebecca Mkandla was clear in her evidence that it was the appellant who took the log from a plate rake at Violet Tshuma's homestead and ran after Never Khabo and the deceased. She was not involved in the conversation that took place between the appellant and the deceased. Her attention was first drawn to the appellant and the deceased running towards the homestead.

The evidence that the appellant was already armed with the log and was in hot pursuit of the deceased was corroborated by the appellant's admission that he struck the deceased with the log on the occipital regional of the head. He could only be in a position to do so from behind the deceased.

The accused person faces a charge of murder in that it is alleged that on the 30^th of December 2012, he stabbed and killed Zenzo Ncube. The facts of the case, which are mostly common cause, are as follows.

The accused person, who was with others, amongst them his younger brother, Nkosiyalinda Ngwenya (the second State witness), were at a borehole in Ngoma area of Gwanda. They were looking for their donkeys. The deceased arrived at the borehole in the company of Honest Siziba (the first State witness). Honest Siziba and the deceased were also looking for their donkeys. They found the accused and the other boys, including the accused's younger brother Nkosiyalinda Ngwenya, at the borehole. They asked them if they had seen their donkeys to which the accused, and the others who were in the accused's company, answered in the negative. The two, that is the deceased and Honest Siziba then left the borehole. After walking for some distance, the deceased and Honest Siziba heard sounds of bells that resembled the sound of the bell of their donkey. The sound came from the direction of the borehole. They then went back to the borehole to check on this lead. At the borehole, they realised that the sound they were tracking in fact was not for their donkey's bell. Honest Siziba then asked the accused to pump water for him from the borehole so that he could drink. 

The accused did.

The deceased drank water and as he was leaving he called the accused's younger brother, Nkosiyalinda Ngwenya. Nkosiyalinda Ngwenya refused as he was on a mission looking for donkeys. The deceased then chased Nkosiyalinda Ngwenya, caught up with him and fell him down, whereupon he then pulled him by the leg and is so doing dragged him. The accused then intervened. He queried as to why the deceased did that and the deceased then asked him (the accused) what he intended to do about it. When the deceased walked away, the accused then decided to confront him and they came face to face. The accused then acted as if he was walking away for some short distance, when the accused was now behind the deceased, he drew out a knife and stabbed the deceased from the back at the back of the neck. He pulled out the knife and fled from the scene. At the time, the accused approached the deceased, when the deceased asked him what he intended to do, the accused and the deceased were standing close to each other facing each other. It is at that juncture that the accused then acted as if he was going away, that is passing the deceased walking towards the direction that the deceased had his back on. He then turned after passing the deceased and then stabbed him once at the back of the neck. Honest Siziba then assisted the deceased to get to the nearest homestead. He left the deceased at that homestead in the company of the resident of that home and went to call the deceased's relatives.  At the time he came back, that is when he discovered that the deceased had passed on.

It was also the evidence of Nkosiyalinda Ngwenya that Honest Siziba was carrying a stick at the time all this happened but that he did not use it on anyone. Nkosiyalinda Ngwenya estimated the size of the stick to be about +/- 40cm long and about +/- 10cm thick. He said, nonetheless, Honest Siziba had just been carrying that stick when all this was happening and did not use it to strike anyone or threaten anyone - including the accused person.

It is also common cause that at the time the deceased pulled Nkosiyalinda Ngwenya he had burn injuries from a previous unrelated incident on his tummy and thighs. Both State witnesses who gave viva voce evidence, that is Nkosiyalinda Ngwenya and Honest Siziba, told the court that there was never a fight between the deceased and the accused. 

The evidence of the rest of the witnesses as indicated in the summary of the State case…, was admitted in terms of section 314 of the Criminal Procedure and Evidence Act with the consent of the defence counsel.

The Defence Outline was read and tendered and it was marked Exhibit II. In the Defence Outline, the accused's version is primarily similar to that of the State case, the only difference being in paragraph 4 thereof reads as follows:

“He will further state that the deceased and his friend started fighting with the accused and they hit him with a stick. In self defence, he drew an okapi knife from his pocket and stabbed the deceased once on the right side of the neck.”

It is crucial at this juncture to mention that in his evidence in chief, the accused abandoned this assertion as clearly he did not tell the court that the deceased and his friend fought with him or that they hit him with a stick; he, in fact, stated a version similar to that of the State witness and only differed on the aspects of his own apprehension in that he felt angry and threatened by the deceased's conduct. He also told them that in fact he had a grudge with the deceased in that on Christmas day ( approximately 5 days prior to the fateful day), the deceased had insulted him and he was restrained by his (accused's older brother) who was present then. He went on to tell the court that in fact when the deceased started harassing him, (accused) actually thought that the deceased was continuing in his conduct as he had previously insulted him days prior to the fateful day….,.

The accused person himself says at the time that the deceased dragged Nkosiyalinda Ngwenya, he queried this and the deceased asked him what he was going to do about it. He then says when the deceased walked away, he decided to confront him and they came face to face. He then indicates to the deceased that what he was doing was wrong and that he (accused) was not pleased with it. He then says he got angry at the time that he confronted the deceased and he ended up stabbing him. 

Under cross-examination, he said he decided to use a knife as he feared that the deceased and Honest Siziba would overpower him.

He confirmed that the deceased and Honest Siziba did not attack him in any way but that he thought because of the pending grudge maybe they had come to attack him. Under cross-examination, he said he did not intend to kill the deceased but that at the stage when he walked past the deceased to the back of the deceased, it was at that stage that he was overcome by anger. He also said he stabbed the deceased as he wanted him to flee and leave his young brother alone.

The court has to make a finding at this stage if at all the accused person acted in self-defence on these facts.

Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides on self defence as follows:

“253(1) Subject to this part, the fact that a person accused of a crime was defending himself or herself or another person against an 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:-

a) When he/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

b) His or her conduct was necessary to avert the unlawful attack and he or she could not exercise 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

c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances, and

d) Any harm or injury caused by his or her conduct –

i) Was caused to the attacker and not to any innocent third party;

ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.”

In this case, the accused person's young brother was attacked by the deceased. 

The first requirement of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that there should be an unlawful attack on the accused or a third party, is satisfied.

The accused person states, in his own evidence, that at the time that the deceased attacked Nkosiyalinda Ngwenya, he queried this and the deceased then asked him what he would do about it. He then says when the deceased walked away, he decided to confront him and they came face to face.

It is important to note that in his own words, the accused queried the deceased's conduct and although the deceased responded with indignation, the deceased, however, started walking away, meaning that the deceased had, at that stage, abandoned the attack on Nkosiyalinda Ngwenya.

The second requirement for self-defence in section 253 of the Code is not satisfied from these facts as it clearly provides that the accused's conduct should be necessary to avert the attack and it should be in such circumstances as the accused cannot escape from. But, it is clear from the facts that at the stage the accused approached the deceased and stood before him face to face, the deceased had already abandoned the attack and was already walking away. From the accused's own evidence, the deceased had heeded the accused's query although he commented as to what the accused would do about it, he then let go as he was walking away. 

What then prompted the accused to confront the deceased in the manner that he did is no longer what section 253(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] envisages; as section 253(b) does not avail itself to a person who attacks another when in fact the attack has ended and the attacker is retreating from the unlawful action.

Section 253(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] stipulates that the means used to avert the attack must have been reasonable in the circumstances.

Clearly, the accused was unarmed and although Honest Siziba was armed with a stick, as stated by Nkosiyalinda Ngwenya, Honest Siziba was never part of the attack…,. So why would the accused use a knife on an unarmed man who had since stopped the unlawful attack on the accused's brother? It can thus not be found that the accused's conduct was necessary in the circumstances. What makes matters worse is that the attack had ended so where would the necessity to avert the attack then come from?

Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is to the effect that the harm caused must be on the attacker and it should not be grossly disproportionate to that liable to be caused by the unlawful attack. The deceased dragged Nkosiyalinda Ngwenya with his hands, the accused queried, the deceased started walking away; meaning to then attack the deceased with an okapi knife in the circumstances is certainly grossly disproportionate to the harm the deceased was likely to cause, or had already caused, to Nkosiyalinda Ngwenya (since the attack) was over. So the accused's reaction was grossly disproportionate to the harm already caused by the deceased to Nkosiyalinda Ngwenya as the deceased had already stopped and was walking away. Clearly, there was no more impending harm as the deceased, who was unarmed, was now walking away.

For the aforestated reasons, it is our finding that self defence is not available to the accused on the facts before me.

Regarding defence of self-defence, the court a quo found that, in fact, it was the appellant who had attacked the deceased and raped her and that the deceased had grabbed hold of the testicles in order to defend herself. 

SELF DEFENCE

One of the cardinal requirements for the success of the defence of person or, in this case self-defence, is that the resisted attack must be unlawful. See section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter called the “Criminal Code”).

The confronting of burglars and ordering them to surrender on pain of death is not an unlawful attack.  Similarly, the subsequent concerted chasing after the first appellant in order to effect a citizen's arrest is perfectly lawful.

Counsel for the first appellant submitted that the fact that the deceased chased the first accused while armed with an axe for about 250 metres and could have struck him with it even after he had dropped the loot, entitled the first appellant to exercise his right of self-defence.

This contention, however, must be weighed against proven facts. In doing so, care must be taken to balance the first appellant's version of events surrounding the case against facts and probabilities given that he is the sole witness of what transpired and beneficiary of any exaggeration on his part. The court a quo, therefore, did not misdirect itself in treating his evidence with caution, having found him to be an untruthful witness.

The fact that the deceased was armed with an axe is not contested. One can go so far as to say that it was perfectly prudent and lawful on the deceased's part to be so armed in confronting burglars at night who may well be armed with lethal weapons, and, in fact, turned out to be carrying knives. However, the evidence does not show a reckless use of the axe by the deceased. First, he calls out for the burglars to surrender and come out but the first appellant ignores this and bolts out of the room with the loot. He gives chase and hits the fleeing burglar with a stone or some other non-lethal weapon he happened upon but avoiding using the axe. When the first appellant continues to flee, he grabs him by the leather jacket which the burglar wriggles out of and escapes. When he finally has to use the axe, the deceased opts to use the non-lethal end of the axe, even according to the first appellant's own testimony. Yet still, in the final confrontation, when the first appellant is 'cornered', the deceased does not hack him down with the axe which he could easily have done. Rather, he, again, orders him to surrender, to lie down, which he pretends to do but suddenly draws out a knife and stabs the pursuer.

Therefore, the court a quo did not misdirect itself in disbelieving the first appellant since his version of events either did not tally with the facts or was exaggerated for his own benefit. For example, while the first appellant maintained that he stabbed the deceased only once, the postmortem report established that the deceased was stabbed twice, on the right arm and the left abdomen. Penultimately, while the first appellant testified that he was unaware that he had killed his pursuer, he still had the gall to turn back to try and retrieve the loot and only retreated when he heard foot-steps of other people. Finally, the injuries he claims to have sustained from the attack by the pursuer were found by the court a quo more likely to have been sustained in some fall in his bid to escape.

It is clear, therefore, from the above discussion, that the lawful exercise of the right of defence of property, including the right to use moderate force to effect a citizen's arrest, were not exceeded by the deceased so as to constitute an unlawful attack entitling the first appellant to self-defence. 

From the facts and evidence placed before us, the defence of self defence, as provided for in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is not available to the accused.

As we already pointed out, the defence by both accused persons of denying assaulting the now deceased in any manner and at the same time alleging they were acting in self-defence and defence of another is illogical.

The requirements of self-defence or defence of another are outlined in section 253(1)(a) to (d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

While the evidence placed before us shows that the now deceased, in most probabilities, attacked the accused persons, initially with the iron bar, Exhibit 6, and later on with a knife, Exhibit 5, and that it was well within the accused persons lawful right to attack the now deceased in order to avert the unlawful attack, our firm view is that the means used by the accused persons to avert this unlawful attack were not reasonable. The now deceased had failed to use the iron bar and had let go the knife.

The now deceased had virtually been overpowered.

The accused persons, nonetheless, continued to attack him viciously as he lay on the ground unarmed. To our minds the defence of self-defence or defence of another can only be available to the accused persons as a partial defence as is provided for in section 254 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused and the now deceased were husband and wife. They had 4 children aged 13 years, 9 years, 6 years and 2 years. The youngest child is a boy.

On 25 December 2016, Christmas Day; a day which was supposed to be one of merry-making and celebration by families, turned into a tragic nightmare for both the accused and the now deceased who were at their home at Village 8 Mkwazi, Mkwasine in Chiredzi. The now deceased decided to slaughter the accused's goat for a feast during the Christmas period.

They owned only three (3) goats.

The accused refused and a quarrel ensued. The now deceased insisted that he was the father of the house and would slaughter the goat. He proceeded to sharpen a knife for that purpose. The accused would have none of it. She ran to the goat pen and proceeded to open it in order to release the goats. The now deceased followed her to the goat pen armed with the knife. The accused then took one of the poles at the goat pen and struck the now deceased several times on the head, on the back, and on the legs. The hapless husband was severely injured and later taken to Chiredzi District Hospital where he was transferred to Masvingo Hospital and then to Parirenyatwa Hospital. The now deceased passed on on 30 December 2016.

The cause of death was right epidural haematoma arising from the assault on the head.

Initially, when the trial commenced, the accused was facing a charge of murder. Evidence was led from the couple's daughter, the 13-year-old girl who was an eyewitness to the altercation and assault. Thereafter, both the State counsel and defence counsel found each other after taking into account the provisions in Part XIV, section 256 to section 259 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which deal with the defence of property, in particular section 259 thereof.

It was clear from the evidence led that the accused resorted to fatally attacking the now deceased after she had taken all other possible steps to protect her goat. She had no other means to protect the goat after she tried to open the goat pen but was prevented by the now deceased. Considering that the accused is simply a poor peasant woman this goat was of vital importance to her. The family owned only three (3) goats.

The now deceased had simply insisted that he wanted to slaughter the goat despite the accused's protestations and had not offered to compensate her in any manner. The requirements in section 258 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are therefore met. Be that as it may, the means the accused used to prevent the now deceased from slaughtering the goat were not reasonable in the circumstances. The accused subjected the now deceased to a sustained and brutal attack. She used a very big log which she lifted with two hands to strike the now deceased several times on the head despite that the now deceased was helpless and did not fight back. The defence of property in the circumstances can therefore only be partial defence to the charge of murder as is provided for in section 259 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Our law recognizes that the infliction of harm upon unlawful attackers is permissible to the extent that such harm was reasonably necessary to avoid them off. Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides the requirements of this defence. They are –

(1) There must be an unlawful attack.

(2) When the accused engaged in the conduct, he believed, on reasonable grounds, that the unlawful attack had commenced or was imminent.

(3) The accused 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.

(4) That the means used to avert the unlawful attack were reasonable in all the circumstances.

(5) Any harm or injury caused by his conduct or her conduct –

(a) Was caused to the attacker;

(b) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

In assessing these requirements, the court must avoid an armchair approach from the refined atmosphere of the court. Put differently, the court must take into account the accused's predicament – S v Phiri SC190-82; S v Mashingaidze SC79-84; S v Mandizha SC200-91; S v Banana 1994 (2) ZLR 271 (S).

Another relevant section in respect of this defence is section 255 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which basically provides that if an accused is genuinely, and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence to any criminal charge in all respects as if his or her belief were in fact correct.

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleges that at Hartzell High School, Old Mutare, Penhalonga, on 11 October 2008, with actual intent, or realising the real risk or probability of death occurring, the accused stabbed Raynot Museta once on the back with a screw-driver, thereby inflicting injuries from which the said Raynot Museta died.

The following sequence of events is common cause or not in serious dispute.

The accused's uncle was, at the time, the Headmaster at Hartzell High School, Old Mutare. Although the accused had been employed as a school teacher, by October 2008 he was no longer employed as such. Most of his former workmates were still in the employ of the school. He interacted with both students and teachers alike. On the day in question, he had been at the class-room blocks together with his friend, one Charles Makadzange (“Charles”). He had a misunderstanding with one of the students, Takudzwa Nyamangodo. After this misunderstanding he and Charles Makadzange left and proceeded to his place of residence.

What transpired after they got home is a matter of some dispute.

There is agreement amongst the witnesses that the accused had agreed to download music onto some media device provided by the two students who had accompanied him and Charles Makadzange. On the other hand, he says whilst he was engaged in the task, he decided to fix or repair an old radio.

It is not in dispute, however, that he had locked himself inside his house whilst Charles and the students remained outside by the window. It is also common cause that whilst so occupied a group of students descended onto the residence and knocked at his door.

The accused asked Charles to attend to the knock. The emissary, Charles, came back and advised him that the students required his presence outside. It is also not in dispute that the crowd of students was outside. After some hesitation, he eventually came out to meet the crowd. The crowd appeared agitated. There is no agreement as to how the discussion proceeded besides what the accused himself told the court.

There is agreement, however, that the students were not patient with the manner in which the accused was conducting himself with their spokesperson. There is agreement, too, that one of the students, who was not identified either by the State witness or by the accused, initiated an assault on the accused by striking him with a weapon below the waist.

This led to the accused hitting back.

Thereafter, there was a melee as more students joined the fracas. As to how this melee proceeded, there are various versions given depending on where the narrator stood and his power of observation. The scene was fluid, so were the events and the emotions.

Faced with this situation, the accused tried to fight off the attack by striking wildly with the screw-driver which he had brought from inside the house. That blow found its mark on the left back of Raynot Museta and punctured his internal organs. Upon realising that the accused was armed, the students broke up and fled from the scene. The deceased fell after running a few paces.

He was later carried away, but it was clear, immediately, that the blow was fatal as the deceased could not speak upon being rescued by his fellow students. There is no dispute as to how the assault on the deceased occurred.

On the one hand, the State alleges that when the accused came out of the house, there was no indication that he was armed with a lethal tool as a screw driver.

In our law, the defence of private defence, that is, self-defence of third person and property is one which excludes unlawfulness and excuses or justifies the actions of the accused.

G FELTOE, in his book A Guide to Criminal Law – Zimbabwe, explains that defence…, as follows;

“The law provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack or take reasonable steps to defend another against an unlawful attack. Harm or even death may be inflicted on the assault in order to ward off the attack.”

The requirements for the defence are:

(a) An unlawful attack;

(b) Upon accused, or upon a third party, where accused intervenes to protect that third party;

(c) The attack must have commenced or be imminent;

(d) The action taken must be necessary to avert the attack;

(e) The means used to avert the attack must be reasonable.

In the present case, the accused was besieged by a group of 40-50 students whilst he was within his house. They called him out and engaged him in an animated discussion. They formed a crescent shaped circle around him; thereby closing his access to escape to safety should the need arise.

The situation was admittedly volatile and the students initiated an attack on him without warning by a strike below the belt leading to what a witness described as chaos and confusion.

The accused says he was felled in the melee that followed and to rescue himself he accidentally used the screw-driver to ward off the attack.

See S v Magoge 1988 (1) ZLR 163 (SC); S v Nicolle 1991 (1) ZLR 211 (SC).

Even if the use of the screwdriver was not accidental; in our view, the accused was entitled to resort to its use in the agony of the moment. A group of 40 to 50 students threatened his own life. It was, in our view, kill or be killed. He did not have the luxury of the opportunity to decide how he was going to survive an attack with sticks and stones. The use of the screw driver, in the particular circumstance of this case, was reasonable in order for him to avert the ongoing attack.

In our view, his actions were justifiable and therefore excusable and the defence of self-defence is available to him.

The accused shot an illegal diamond panner at night within a fenced and protected area in Marange diamond fields on 3 July 2014.

He now faces a charge of murder; it being alleged that he unlawfully, and with intent to kill, shot Farai Madenga with a shot-gun rifle on the head thereby causing injuries from which the said Farai Madenga died.

The facts are not in dispute.

The issue raised by this matter is whether the guard on duty, under an unlawful attack, can successfully raise the defence of private defence and/or the defence of property.

The facts which are common cause are as follows:

1. The accused was employed by a private security company as a security guard. He was deployed at Marange Resources diamond fields, Chiadzwa, Marange.

2. On 3 July 2014, around 1900h, the accused was on duty together with his patrol team-mate. He was armed with a 12-bore shotgun rifle. His team mate was a canine handler with his patrol dog.

3. It was a dark night. Visibility was good only at 5 metres, and poor at 10 metres, none beyond 15 metres. They heard the sound of illegal panning activity in their area of jurisdiction.

4. They decided to approach the scene at the same time sending a radio message for reinforcements.

Before help arrived, they came under attack from a stone-throwing mob.

5. The attackers yelled and shouted that they will kill the accused and his workmate. They were encircled.

6. The accused fired a warning shot to persuade the illegal panners to disperse and desist from attacking them. The dog got too timid to act, bark, or engage the hostile mob.

7. He fired the second shot as the attacking mob persisted. The deceased was hit and the mob dispersed.

Section 257 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that defence of property will be a complete defence to a crime which an accused is charged if the accused is charged with a crime for his actions in defending his or her property if all of the following requirements are satisfied:

(a) When the accused did or omitted to do the thing, the unlawful act had commenced or was imminent;

(b) The accused's conduct was necessary to avert the unlawful attack;

(c) The means used to avert the attack, unlawful attack, were reasonable in all the circumstances;

(d) Any harm or injury caused by the accused's conduct;

(i) Was caused to the attacker and not to any imminent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

See S v Nicolle 1991 (1) ZLR 211 (SC); S v Magoge 1988 (1) ZLR 163 (SC).

Section 258 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides the more stringent requirements where there is a killing in defence of property.

Where an accused is charged with the crime involving the killing of another person, that accused is not entitled to rely upon the defence of property unless the following requirements are all satisfied;

(a) The accused resorted to killing after taking all other possible steps to protect the property concerned.

(b) The property concerned could not have been defended by any other means except killing.

(c) The property concerned was of vital importance to the accused.

(d) The accused reasonably believed that he or she would not receive adequate compensation for any destruction, damage or injury caused to the property concerned by the unlawful attack.

In determining whether or not these requirements 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 in which he or she may have had, and any stress or fear that may have been operating on his or her mind.

In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to liable to be caused by an unlawful attack, a court will have regard to the nature of the property which the person was trying to protect and its value to him or her.

In light of the above, this court has determined that not only was the accused lawfully employed to protect the employer's assets from theft, he was also entitled, by law, to protect himself in the event that during his call of duty he is personally attacked. The events, of 3 July 2014, show that the accused suddenly found himself under an unlawful attack from sources unknown but whose threats to life were quite loudly and clearly stated.

It was a case of kill or be killed as the illegal panners, instead of complying with a warning to disperse, actually announced their intention to kill the guards. In our view, had the deceased not taken the step he took, he may have featured in this case as the deceased.

The illegal panners approached a fenced-off mining location, by night, with the full knowledge that they may encounter armed guards. When they did encounter them, they did not flee but became aggressive and attacked the guards first. Visibility was poor; their number was unknown; help was late in coming; the dog had been cowed into submission by the atmosphere of gunshot and noise.

In our view, the accused has met the requirements met out in both section 257 and 258 of the Criminal Law Code. He is entitled to his acquittal.

In terms of our codified law, as informed by section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) thereof, this defence can be a complete defence leading to the acquittal of the accused if successfully pleaded and its requirements can be summarised as follows:

(i) There must have been an unlawful attack on the accused person;

(ii) The attack must have either commenced or perceived to be imminent by the accused;

(iii) In response thereto, the action taken by the accused must have been necessary to avert the attack; and

(iv) The means used to avert that attack must have been reasonable given the circumstances of the case.

See also A Guide to the Criminal Law of Zimbabwe by G. FELTOE second edition, published by Legal Resource Centre in 1997…,.

In order to ascertain whether or not the defence of self-defence is sustainable, the court is enjoined “to take due account of the circumstances in which the accused found himself/herself including any knowledge or capability he or she may have had and any stress or fear that may have been operating in all the circumstances.”

See section 253(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Our codified law, as provided in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does recognize that, in a proper case, the defence of self defence can be a complete defence if successfully pleaded. The section is framed as follows:

“253. Requirements for defence of person to be a complete defence

(1) Subject to this part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did nor omitted to do anything which is an essential element of the crime shall be a complete defence to the charge if –

(a) When he or she did nor 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

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct –

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) In determining whether or not the requirements specified in subsection (1) have been satisfied in any case, the court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

The accused is charged with murder.

At the time of the crime he was aged 29 years; it being alleged that on 12 July 2014, at Village 35B, Magamba, Chief Saunyama, Nyanga, he, with actual intent or realising the real risk or possibility that death may result, stabbed Dunmore Matengeni with an Okapi knife thereby inflicting injuries from which this said Dunmore Matengeni died.

The accused, whilst admitting causing the death of the deceased, stated, in his Defence Outline, that the death occurred whilst he was under an imminent attack from the deceased who had harassed him for quite a considerable time prior to the stabbing. He pleaded self-defence and implored this court to find him not guilty of the charge.

Most, if not all, of the facts surrounding the events leading to the stabbing of the deceased are not in dispute. They may be summarised as follows.

In 2004, the deceased's father loaned a bovine to the accused as draught power. On 12 July 2014, the accused and the deceased were at a homestead attending to a beer drink. The accused had spent the better part of the previous right partaking of the local brew. The deceased joined the accused at some point during the beer drinking jaunt. The deceased then raised the issue of the loaned bovine. This led to a misunderstanding in which the deceased, who was at the time of his death 22 years old, demanded that the accused pays him compensation for the beast by allocating a portion of his land to him or by pledging one of his daughters to the deceased.

Because the matter became heated, the accused decided to leave for his residence fearing that the argument might degenerate into a physical tussle or confrontation. The deceased had, in his possession, an axe, and appeared drunk. The accused decided to find someone to provide an escort to him at his parent's home so as to deter the deceased, who appeared bent on pursuing the matter with him, from being belligerent. Upon arrival at his parents' home he secured the escort service of his brother's two young sons. He explained his predicament with the deceased to the young boys. True to his fears, the deceased followed him up to his parents homestead and persisted in his rowdy behaviour.

The accused made a hasty departure in the hope of shaking the troublesome deceased in the process. He went through a neighbour's residence. The deceased caught up with the trio and picked up the quarrel with the accused. The deceased threatened, at this stage, to physically deal with the accused. The accused left his parents' residence but when he got to a nearby field, the deceased slapped the accused. The accused pleaded with him to desist from his action as they were both drunk. When the children tried to restrain the deceased from his aggressive behaviour, he turned on them and threatened to unleash violence against them. They fled in terror as the deceased was armed with an axe.

What happened thereafter is a matter of some dispute.

At this point, the deceased, according to the accused, grabbed the accused by the collar of his shirt and swerved his axe and feigned an attack on him with the axe. The accused feared for his life. In order to ward off the imminent attack, the accused drew his knife and stabbed the deceased. The accused says he had aimed the stabbing blow to the hand that handled the axe but missed and struck him in the stomach area.

Questions put to the accused during cross-examination by counsel for the State appeared to be aimed at discrediting the version given by the accused regarding how the stabbing took place.

In our view, the only eye witness to the event, who is now the accused, gave a reasonably possible explanation which the court cannot dismiss as false. Had the State been able to lead evidence in rebuttal of the defence version, then this line of cross-examination would have been quite justified. In the absence of any such evidence contradicting the accused, one must rely on the probabilities of the matter and decide whether the accused's version is reasonably possibly true. It was on that basis that we were unable to discount his version that we decided that the version has not been challenged and therefore remains as the truth in the matter. The court therefore accepts it. That version is quite probable given the corroborative evidence led from the 15 years old David Maenda.

David Maenda confirmed to this court that the deceased had with him an axe and had assaulted their father. When they had tried to restrain him he turned on them and they fled in fear of the deceased.

When they were a short distance away, they saw the deceased fall to the ground and the accused stab him once on the thigh.

The accused explained that the deceased tried to kick him despite the stabbing blow to the body.

Even if this was highly unlikely, we are of the considered view that the accused's defence of self defence must be examined to determine whether he has met the requirements of the law.

The requirements for this defence are;

(a) An unlawful attack;

(b) Upon the accused or a third party where the accused intervened to protect that third party;

(c) The attack must have commenced or be imminent;

(d) The action taken must be necessary to arrest the attack; and

(e) The means used to avert the attack must be reasonable.

In determining whether an accused has met the requirements for the defence of private defence, it must always be borne in mind that the trial court must avoid taking an armchair approach in the assessment of the situation faced by the accused. It is easy, after the event, and far from the dust of the conflict in which the accused was involved, to find possible ways and means through which the accused could possibly have averted the deceased's death. (See S v Manyekete HS-386-81).

The accused was faced with a drunk youngster who was a sheer pest on that fateful day. He cautioned him about the folly of raising emotional issues when they were both drunk and suggested that he approaches him on another day when he was sober and away from the crowd. He also decided to leave, and, indeed, left the beer drink - all in an effort to avoid the deceased. He secured the escort of young relatives hoping that their presence would act as a deterrent to the deceased. He tried to calm him down by telling him that he was going home. All these efforts did not pay off. Instead, he was attacked by an axe-wielding drunk and aggressive youngster. When he was attacked he was justified in taking appropriate self-defence measures. Unfortunately, these measures put an end to a life.

In S v Mpofu 1969 (1) SA 334, the deceased attacked the accused with a knife. The accused threw a stone at the deceased who was hit on the head and died. The accused's plea of private defence was upheld.

In our view, faced with an armed and persistent, aggressive, and a drunken assailant, the accused was quite entitled to use the knife to put an end to the threat confronting him. As such, the accused's action is not unlawful.

He is therefore found not guilty and acquitted.

The first defence pleaded is self-defence. Section 252 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for this defence.

The position of our law is that it is permissible to inflict harm upon unlawful attackers as long as such harm was reasonably necessary to ward them off. This can be a complete defence if all its requirements are met. These requisites are captured in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In summary, they are:

(a) When the accused engaged in the conduct he believed, on reasonable grounds, that the unlawful attack had commenced or was imminent;

(b) The accused believed, on reasonable grounds, that his or her conduct was necessary to avert the unlawful attack and that he or she would not otherwise escape from or avert the attack;

(c) The means used by the accused to avert the unlawful attack were reasonable in all the circumstances;

(d) Any harm or injury caused by the accused's conduct was;

(i) Caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

See S v Banana 1994 (2) ZLR 271 (S); S v Mandizha SC200-91.

In applying the law to the proved facts, the court has to avoid adopting an armchair approach. See S v Phiri SC190-82.

As regards the first requirement, the evidence shows that the unlawful attack had stopped. It is common cause that Munyaradzi Gwezuva stopped the fight. The accused, however, took that opportunity to arm herself and proceed to stab the deceased. In respect of the second requirement, again, on the facts found proved, the accused's belief that her life was in danger was unreasonable. In any case, the accused had an opportunity to escape or avert he danger. The accused admitted that the door was open and she was standing near the door. When asked by the State counsel why she did not run away when Munyaradzi stopped the fight she could only say “I did not think of that.” Munyaradzi's evidence paints a picture of the accused as an aggressive person who intentionally started the second round of the fight by advancing towards the deceased. The accused did not use reasonable means to avert the unlawful attack. It was totally unnecessary to resort to the use of a knife. The deceased was not armed. There is no evidence that the accused came out second best in the fight. To the contrary, the evidence points towards an extremely violent conduct in which the accused was itching for a fight. The injury caused to the deceased, as shown by the post mortem report, was grossly disproportionate to that liable to be caused by the deceased using clenched fists. Further, the accused's conduct caused an injury on Munyaradzi who was an innocent third party.

On the evidence in its totality, the State has successfully rebutted the defence of self-defence.

Regarding self defence, the legal position is that a person is entitled to take reasonable steps to defend himself against an unlawful attack and to inflict harm or even death in order to ward off an attack. The requirements for that defence are:

1. The accused must be under an unlawful attack, or, where he is defending another person, that person must be under unlawful attack and the accused intervenes to protect that person;

2. The attack must have commenced or must be imminent;

3. The action taken must be necessary to avert the attack; and

4. The means used must be reasonable.

Professor G. FELTOE, A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…,

It is sometimes said that a person under attack is not entitled to exceed the bounds of self-defence.

According to G. FELTOE, A Guide to the Criminal Law of Zimbabwe, 3^rd edition, Legal Resources Foundation…,;

“Where X exceeds the bounds of reasonable defence and kills the assailant, he may, nonetheless, still be found guilty of culpable homicide unless the excess was immoderate. The approach here is that the account should be taken of the fact that X was under attack, although, in the circumstances, he overreacted. He should thus be entitled to a partial defence on a murder charge. This partial defence will not apply where X's response was entirely excessive in the light of the type of threat he was under.”

Regarding defence of person, section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that -

“Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an 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 -

(a) 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

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct -

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.”...,.

The use of unreasonable force in legitimately defending oneself or another person from unlawful attack incurs liability for culpable homicide if it results in the death of the attacker. Section 254 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that -

“If a person accused of murder was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything that is an essential element of the crime, he or she shall be guilty of culpable homicide if all the requirements for defence of person specified in section two hundred and fifty-three are satisfied in the case except that the means he or she used to avert the unlawful attack were not reasonable in all the circumstances.”

DID THE APPELLANT ACT IN SELF-DEFENCE?

The main basis of the appellant's defence was that he had killed the deceased to save his own life from an imminent lethal attack by the deceased.

The appellant's version of events was that the deceased wanted to shoot him and also strike him with a metal rod, so he then countered the “attack” by striking the deceased with an axe, twice, on the back of the head.

The appellant's account is so riddled with improbabilities that the court a quo did not hesitate to reject it. How does a man armed with a lethal firearm on one hand also brandish a metal rod on the other hand? To achieve what? To shoot and then strike or strike and then shoot?

The combination of weapons is just bizarre.

Secondly, as the court below noted, it is well-nigh impossible to strike a person who is about to shoot you on the back of his/her head as alleged by the appellant.

The requirements of self-defence are well-settled in our law. Section 253 of the Criminal Law (Codification and Reform) Act lists the requirements as -

(i) There must be an unlawful attack;

(ii) The attack must be upon the accused or a third party;

(iii) The attack must have been commenced or imminent;

(iv) The action taken by the accused must have been necessary to avert the attack; and

(v) The means used to avert the attack must be reasonable.

The above requirements are cumulative and all must be satisfied before the defence may succeed.

However, the appellant's defence of self-defence founders miserably on the very first hurdle. The alleged illegal attack is so improbable it can only be a figment of the appellant's desperate imagination. Thus, the learned Judge properly dismissed the defence and stated as follows:

“The fact that the Accused used an axe which he obtained…, in the servants' quarters, proceeded to strike an unarmed person on the head, twice, and…, buried him, and, thereafter looted his property demonstrated beyond reasonable doubt that the accused intended to kill the deceased. His evidence is therefore rejected.”

On 10^th of April 2015, Nkululeko Vuma (the deceased) lost his life through stabbing at Manwele Beer Garden in the suburb of Mzilikazi here in Bulawayo. The accused person, Simon Ncube, was responsible for the stabbing hence he stands accused of the crime of murder as defined by section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

From the facts given in this case it is clear that the following facts are not in dispute.

On the day the deceased met his fate he was drinking beer at Manwele Beer garden with Ritha Nxumalo and other patrons related to Ritha Nxumalo. At around 2100 hours in the evening the accused arrived in the beerhall and after exchanging greetings with his aunt, Ritha, and after having briefly conversed with her, the accused picked up a misunderstanding with her over the death of his mother. It was this misunderstanding which prompted the deceased to reprimand the accused for being disrespectful to those who were around and much older than the accused.

It is common cause that the misunderstanding between the deceased and the accused led to a fight between the two leading to the accused being overpowered and fleeing out of the bar. It is also not in dispute that when the accused ran out of the bar he was pursued by the deceased who caught up with him outside.

Ironically, what happened outside was outside the purview of any of the State witnesses. This is because Ritha Nxumalo had gone to the toilet to relieve herself and the other people, including Thomas Dube, who had witnessed the first fight, had remained in the bar. The details of what happened when the deceased caught up with the accused outside the bar is privy to the accused person only.

What Thomas Dube and Ritha Nxumalo only saw outside was the deceased lying supine on the ground with blood oozing from him. From Exhibit 'A', the post mortem report, it looks like the stabbing was so bad that it severely damaged the aorta artery and in the process causing severe left haemothorax leading to the immediate demise of the deceased.

Tragically, as in most of these cases, the deceased did not survive to tell his story. Only the accused remains to tell us what exactly happened leading to the stabbing itself. Deprived of the benefit of direct evidence, the court has been urged to rely on circumstantial evidence to try and find out how exactly the deceased lost his life….,.

In denying the charge of murder that has been preferred against him, the accused principally raised the defence of self-defence after receiving what he referred, in his Defence Outline, as “extreme assault and provocation from the deceased.” The accused's brief script around his defence is that after engaging in a fight with the deceased he was overpowered and ran out of the bar with the deceased in hot pursuit of him. When the deceased caught up with him the deceased tripped him to the ground and continued to punish him with clenched fists while he lay down struggling to free himself. The accused said as the deceased laid on his belly with one hand holding him by his collar, the deceased reached out for what turned out to be the murder weapon. But, fortunately, as the two continued to struggle on the ground the deceased dropped the knife which the accused picked up and stabbed the deceased once on the collar bone ending the deceased's life.

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 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

(1) 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 –

(a) 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

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct –

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) 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.” Section 253 of Criminal Law (Codification and Reform) Act (Chapter 9:23).

See also UCHENA J's (now JA) position in The State v Webster Choruma and Action Choruma HH103-10….,.

Thomas Dube, who is the only witness for the State to have witnessed the first fight between the accused and the deceased, confirmed what the accused told the court; that he was overpowered by the accused and ran out of the bar with the accused after him in hot pursuit. In his own words, Thomas Dube was said to have stated the following in the State summary;

“This witness will state that as they were drinking beer, the deceased started a scuffle with the accused person. This witness will state that he did not know how the scuffle had started and what was the bone of contention. The scuffle between the two continued until it generated to a fist fight. The accused person was overpowered and he ran out of the beer garden; however, the deceased followed him in hot pursuit.”…,.

Unfortunately for the State, what happened outside the bar was not witnessed by any of its witnesses. The accused's testimony filled up that lacuna by providing graphic details of how he was tripped by the deceased and continued to be punished whilst lying down on his back right up to the stage when the deceased pulled out a knife which the accused, by mere opportunity, used to stab him.

It is significant to us that the stabbing was once.

In his evidence in chief and under cross-examination, the accused largely corroborated the evidence of Thomas Dube. Thomas Dube could not controvert the evidence of the accused surrounding the stabbing because he was not there when that happened. The accused said that he used the knife by opportunity and he felt that if he had no used it, it could possibly have been used against him.

It is quite tempting for us sitting here as a court, and in the comfort of this court room, to start speculating on what the accused should have done to avoid the killing. But practice and experience cautions us against adopting an armchair approach when we deal with situations of self-defence. See G FELTOES's views, A Guide to the Criminal Law of Zimbabwe (Legal Resources Foundation) 2^nd Edition…,.

As a court, we invited the accused to take us to the scene of the stabbing when he was giving evidence. The accused gave us a chilling account of what happened leading to the deceased's stabbing.

We are unanimously convinced that the accused's use of the knife in those circumstances was a necessary evil….,.

I wish to emphasize the fact that the use of immoderate force will not excuse an accused where the defence of self defence is relied upon. I have already dealt with the circumstances under which the accused stabbed the deceased in this case.

The accused's uncontroverted explanation is that in the hustling and pushing that he engaged in with the deceased he thought he would stab the deceased by the shoulder, but, unfortunately, the knife unintentionally ended on the collar bone. We do not believe that it can be said that the accused used excessive force given the circumstances he was under when he stabbed the deceased.

Consequently, our unanimous position, as a court, is that the accused be given the benefit of doubt in this case.

The accused is found not guilty and acquitted.

The accused stated that he had no intention to kill the now deceased….,. The accused pointed out that he had no premeditated notion of assaulting, let alone killing the now deceased. The accused said he acted in self-defence when the now deceased, who was drunk, decided to attack him, unprovoked, with an axe and spear….,.

This is what the accused said in his confirmed warned and cautioned statement:-

“I admit the charge of murdering Sinoia Katema after I had assaulted him with a switch, then with fists and kicking. I assaulted Sinoia Katema who was my father after he had refused to perform some traditional rituals in order to have me cured from the problems which I was facing customarily. On the day I killed him we had come back from some apostolic sect church where we had gone to consult some prophets there, where we were told of what was troubling me customarily. My father refused to perform rituals to solve my problems then I assaulted him and this caused his death.”

It is clear from this statement that the accused confirms that he was the aggressor and explained how and why he assaulted the now deceased…..,. It's clear from this statement that the accused was not acting in self defence as he now alleged….,.

The accused was unable to lay the factual basis for the defence of self-defence.

Even if one was to accept the accused's version, that the now deceased had an axe and spear, which version we reject, the accused said at the time he assaulted the now deceased he had disarmed the now deceased. The accused could therefore not have been acting in self defence. In fact, we reject the accused's version.

Our finding is that the accused did not act in self-defence as defined in section 253 of the Criminal Code [Chapter 9:23].

It is abundantly clear that the accused did not act in self-defence. He was never under attack from anyone. In fact, the accused was the aggressor throughout. The accused's mother was never under attack hence it is a lie that the accused acted in her defence.

At the close of the case for the State we dismissed the accused's application for discharge made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. We gave our reasons ex tempore.

The accused had raised the defence of self-defence and our view was that the accused's version of events should be properly ventilated during his defence case to properly ascertain if indeed he could not be convicted of the charge of murder or any other permissible verdict. In short, it was necessary for the accused to lay, in his evidence, the factual basis of the defence of self defence.

The accused is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (The Code).

The charge is that on 14 March 2017, at Yellow Farm Range, Masvingo the accused stabbed the now deceased with a knife under the left armpit penetrating the lung resulting in the now deceased's death. During the night of 13 March 2017 both the accused and the now deceased were at Musakaruka Shop with other patrons drinking beer. A misunderstanding then arose between the accused and the now deceased culminating in a fist fight at about 21:00hrs. The other patron, Darlington Gift Mabika, restrained them. The now deceased then left the shop ostensibly going home.

It is the State case that the accused followed the now deceased shortly thereafter and stabbed him with a knife below the armpit. It is alleged no one came to the now deceased's help resulting in his death. The now deceased body is said to have been discovered the next morning on 14 March 2017. The accused was linked to the offence by his woollen hat and knife found at the scene of the crime. The accused's t-shirt was also blood-stained.

In his Defence Outline, the accused confirmed that he indeed first fought the now deceased that night at the shops although he said the now deceased was the aggressor. He further confirmed that one Given Mabika restrained them. The accused said it is the now deceased who later left the shop first and the accused presumed the now deceased had gone to his residence. The accused denied that he followed the now deceased and when he left he, the accused, was going to his residence. The accused said it is the now deceased who waylaid the accused and attacked him by throttling him. The accused said he fell down and the now deceased sat on top of him still throttling him. The accused said the now deceased used a sharp object to stab the accused in the face. The accused said he had a knife in his pocket and in order to fend off the attack reached for the knife. The accused said he randomly stabbed the now deceased to force the now deceased to release him. The accused said he got up and fled, and, in the process, dropped the knife and his woollen hat. The accused said he only learnt of the now deceased's death the next morning. The accused thus raises the defence of self-defence.

In support of its case, the State produced the following exhibits;

(a) Exhibit 1 is the post mortem report compiled by Dr. Zimbwa. It shows that the cause of death was the stab wound which penetrated the lung causing excessive loss of blood. The cause of death is not in issue.

(b) Exhibit 2 is the accused's confirmed warned and cautioned statement. It is a repetition of the accused's Defence Outline.

(c) Exhibit 3 is the knife belonging to the accused. The accused admits that he used it to stab the now deceased.

(d) Exhibit 4 is the accused's red, green and yellow woollen hat recovered at the scene of crime which the accused said he dropped when he fled from the scene of the crime.

(e) Exhibit 5 is the accused's striped bloodstained and dirty t-shirt; which t-shirt the accused was wearing on the day in question.

(f) Exhibit 6(1) – (10) are photographs taken when the accused made indications. The accused does not deny that he made indications.

(g) Exhibit 7 are the accompanying notes of the accused's indications.

(h) Lastly, Exhibit 8 is a statement by State witness, one Gift Mabika, which was produced when his viva voce differed from what is said in that statement.

The evidence of Sivhikile Mutetwa and Dr Zimbwa was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Sivhikile Mutetwa is the one who first discovered the now deceased's body in the morning of 14 March 2017 and noticed that the now deceased had no shirt and had a stab wound under the armpit. As already said, Dr Zimbwa is the one who examined the now deceased's body and compiled the postmortem report.

The State led viva voce evidence from Jerald Chikwangwami, Ebbiot Shoko, Darlington Gift Mabika, Detective Inspector Zephania Chipanga and Detective Constable Riva. The accused gave evidence and did not call any witnesses.

The question which falls for determination in this case relates to the circumstances under which the now deceased met his demise. The issue is whether the accused acted in self- defence when he stabbed the now deceased with the knife. In order to examine that we have to look at the evidence led by the State to rebut the defence of self defence.

The evidence of D/Insp Chipanga is peripheral to the issue to be resolved. He confirmed that the accused made indications as per Exhibit 6 and 7. It was during those indications that he recovered the knife, Exhibit 3(a). The only other aspect of his evidence is that Gift Mabika gave a statement to the police and signed it which is in affidavit form….,.

The investigating officer in this case is D/Cst Riva (D/Cst Riva). Again, his evidence does not speak to the issue to be resolved by the court.

D/Cst Riva examined the now deceased's body at the scene of crime and said the now deceased had no shirt. It was never resolved, during the trial, how the now deceased ended up without his shirt. At the scene of the crime, he recovered the accused's woollen hat, Exhibit 4. Upon searching the now deceased's body, he found that the now deceased had $3=20, personal identity card, and FBC Bank card. At the accused's house, D/Cst Riva recovered the accused's bloodstained t-shirt, Exhibit 5. Lastly, he confirmed that indeed the accused had lacerations on his face. The accused alleges there were inflicted on him by the now deceased at the scene of the crime. Most importantly, D/Cst Riva said he was unable to rebut the accused's defence of self- defence during his investigations.

Jerald Chikwangwami, Ebbiot Shoko and Darlington Gift Mabika did not witness how the now deceased was stabbed. Their evidence centred more on the brawl or fight between the accused and the now deceased at the shop before both the now deceased and accused left the shop. Again, their evidence is not material to what is in dispute or to be resolved by the court. We shall only deal with that evidence for completeness of the matter and other peripheral issues.

Jerald Chikwangwami (Jerald)

Jerald was known to both the accused and the now deceased. His evidence is that the accused survived as a poacher. He disputed that the accused makes cooking sticks.

According to Jerald, the dispute between the accused and the now deceased was about a song being played in the shop as they all were drinking beer. According to him, the accused was the aggressor and that initially the now deceased did not hit back when the accused assaulted him. Jerald said after the brawl, the accused and the now deceased engaged in a fight, for the second time, at the shop and that no-one intervened. The two just stopped on their own. After a while, he said, the now deceased smashed a beer bottle to attract the attention of all patrons and proceeded to apologise for what had happened after which he left the shop going home. Jerald said the accused was the next person to leave the shop some 5 to 10 minutes later. Later, Jerald said he heard a person crying out but noone went to check who it was or what was going on.

Jerald said when Ebbiot Shoko left the shop Ebbiot returned reporting that he had seen the now deceased bleeding profusely. Jerald rushed to the scene and found the now deceased lying on the ground bleeding. He noticed the now deceased had lost a lot of blood. Jerald said he left without offering any help to the now deceased and only learnt of the now deceased's death the next day.

Under cross examination, Jerald Chikwangwami disowned some parts of his statement to the police. These relate to the number of fights between the accused and the now deceased that night, whether he saw the body of the now deceased the following day. All what Jerald confirmed is that both the accused and the now deceased were drunk and that they fought each other at the shop. Jerald was also drunk as he did not see the need to help the injured now deceased that night despite realizing that the now deceased had lost a lot of blood that night. Be that as it may he did not see how the now deceased was stabbed.

Ebbiot Shoko (Ebbiot)

Ebbiot also witnessed the fight at the shop between the accused and the now deceased. He however did not know the cause of the fight. He too said initially the now deceased did not fight back, but that the two exchanged blows during the second brawl. Ebbiot confirmed that it is the now deceased who left the shop first. As per Ebbiot's estimation, the accused later left the shop some 20 minutes after the now deceased's departure. Contrary to Jerald's evidence, Ebbiot said when Ebbiot left the shop and discovered the now deceased lying injured he was in the company of Jerald. He said the now deceased was bleeding and unable to talk. He too offered no help and his reason was that he was scared. Ebbiot said he was excessively drunk just like the accused and the now deceased.

Under cross examination, Ebbiot Shoko conceded that there were indeed disparities between his evidence and the statement he allegedly made to the police. Some of the aspects he disputed is that he saw the now deceased's body the next morning insisting he did not visit the scene the next day. Again, Ebbiot did not see how the deceased was injured.

Darlington Gift Mabika (Gift)

Gift, just like the other witnesses, said the now deceased did not retaliate when the initial brawl occurred. He also corroborated other witnesses that when the accused and the now deceased fought for the second time no one intervened. They stopped on their own. He too said the now deceased was the first to leave the shop and the accused later followed. Gift only learnt of the now deceased's death the following morning when he attended the scene of crime and saw the now deceased's lifeless body.

Darlington Gift Mabika also disowned part of the contents of his statement to the police. These relate to how he allegedly restrained the now deceased and the accused during the fight. In fact, Gift was categoric that the statement alluded to him was not his and that his signature was forged.

The accused

The accused, in his evidence, maintained what he said in his Defence Outline. The accused insisted that he makes cooking sticks and is not a poacher. The accused said at the shops, when he fought the now deceased, he did not opt to use the knife as his life was not in danger at all.

The accused maintained that the now deceased waylaid him as he was going home and could not have anticipated this sudden attack. It is the accused's evidence that he was drunk and could not have outpaced the now deceased. The accused insisted that he only resorted to the use of the knife after the now deceased had throttled him and was sitting on him. He said the now deceased was bigger in stature and attacked him unexpectedly at night. The accused said when he used the knife he did not pick any part of the body but was pre-occupied with the inflicting of pain and to free himself from the now deceased who was throttling him and stabbing him with a sharp object in the face.

According to the accused he only left the shop some 20–30 minutes after the accused had left and disputed that he followed the now deceased. The accused said he was apprehended the next morning as he went back to the scene to check for both his knife and hat which he dropped as he fled from the scene the previous night. The accused was steadfast that he could not have followed the now deceased who had earlier on left the shop as he did not know the route the now deceased had used.

Analysis of evidence

The State case is clearly plagued with insurmountable problems.

To start with, all the civil witnesses disowned the statements alluded to them. They disowned the signatures on those statements - especially Darlington Gift Mabika (Gift) who commented on the signature. This was indeed worrying to the court. Why would these simple rural people who had no discernible interest in how this matter would be resolved disown the statements they allegedly made? No possible motive was given or suggested. We are inclined to believe that the manner this matter was investigated leaves a lot to be desired. Beyond this we are unable to comment further.

The other issue is that there was no eyewitness to how the now deceased was injured. All the witnesses who testified are not relevant on this point. The State case does not even turn on circumstantial evidence. To be fair to the State all they hinge their case on is mere speculation. No wonder the investigating officer, D/Cst Riva, conceded that he could not disprove the accused's version of events especially that he acted in self-defence.

In casu, the accused admits fatally stabbing the now deceased with the knife. He proffers the defence of self-defence as is provided for in section 253(1) of the Code [Chapter 9:23]. The defence of self defence, in our law, is a complete defence.

In the case of S v Collet Baira Manzonza HMA02-16…, I discussed, at the length, the requirements for the defence of self-defence.

The State, in our view, has not been able to meaningfully disprove the accused's version of events.

To start with, if the now deceased left the shop earlier why would the accused, who would have followed later, caught up with him. It is not clear after how long the accused left the shop after the now deceased's departure. Is it 5 to 10 minutes as one witness said or 20 minutes as the other said? The other point is that it has not been ascertained how the accused was able to ascertain the exact route the now deceased had used.

It has not been shown why the accused's version, that it is the now deceased who waylaid the accused, is false. There is therefore no evidence to support the contention that it is the accused who followed and attacked the now deceased. That would be mere speculation. Why is it not possible that it is the now deceased who waylaid the accused?

The proper approach, which is objective, is to accept the accused's version and answer the question whether the accused exceeded the bounds of legitimate self-defence. The fact that a life was lost is therefore besides the point as our law accepts that it is permissible for one to cause death upon an unlawful attacker.

If the now deceased waylaid the accused, it means he was the aggressor and more prepared to attack the accused. The accused was indeed drunk and attacked unexpectedly. Indeed, the accused was injured in the face and over-powered by the now deceased who had a bigger stature. The accused was throttled as the now deceased sat on him. He had been clearly overpowered. The two had previously fought at the shop.

All this should be assessed in the context of the provisions of section 253(2) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (The Code).

The accused explained that he used the knife as a last resort and it was one blow which he inflicted to cause the now deceased to release him. As the accused maintained, he did not aim any particular part of the body. It is therefore fortuitous that he aimed below the armpit. After delivering one blow and securing his freedom he fled. The accused's conduct thereafter is irrelevant. He was drunk.

It is our view that the State has failed to negate the plea of self-defence. The doubt should have resolved in favour of the accused.

Accordingly, the accused should be found not guilty of the charge.

VERDICT: Not guilty and acquitted.

The accused is facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The charge is that on the 10^th of January 2014, at Number 20583 Nzungu Street, Rujeko 'C', Masvingo the accused unlawfully stabbed Antony Manzonza with a knife once on the upper right thigh intending to kill him or realising that there was a real risk or possibility that his conduct might cause death and continued to engaged in that conduct despite the risk or possibility.

At the material time, the then 19-year-old accused was residing with the 36-year-old now deceased who was his uncle (young brother to accused's father) at No.20583 Nzungu Street in Rujeko 'C', Masvingo together with the accused's sibling, Innocent Manzonza, then aged 17 years, the accused's cousin, Piniel Manzonza, then aged 18 years, and their aunt (sister to their father), Esnath Manzonza, who was the eldest.

The house in question belonged to the accused's parents. The accused's father is said to have been in Beit Bridge prison at the material time and the accused's mother was at the family shop in Zvishavane. The deceased was employed by the accused's parents as a commuter omnibus driver plying the Masvingo to Gweru route. The deceased had a wife and child who were not staying at this house.

The facts which are common cause in this matter are as follows;

On 10 January 2014, the accused arrived home and found his young brother, Innocent Manzonza (Innocent), alone at home watching television at about 20:00hrs. The accused asked Innocent to accompany him to ZAOGA church which they attended but Innocent refused. The State alleges that this was because the accused was drunk but Innocent said he refused because he had spent the whole day at church. This did not go down well with the accused who believed Innocent was prioritizing watching television. The accused proceeded to disconnect the DVD player and took the AV cables and left the house.

The deceased later arrived from work and asked Innocent to accompany him to go and park the commuter omnibus at a local car park and Innocent agreed. When the accused arrived home thereafter he realised Innocent had agreed to accompany the deceased. The accused did not take kindly to this.

Meanwhile, Innocent had advised the deceased about his altercation with the accused earlier on and that the accused had removed AV cables and took them away. The deceased then ordered the accused to connect the AV cables but the accused refused, and, instead, started to demand money, US$15=, owed to the accused by the deceased for a jean trousers the accused had sold to the deceased in 2013. A misunderstanding arose and the deceased took a broom stick or feather duster stick inside the house and assaulted the accused who sustained swellings and bruises and the broomstick got broken. The accused fled the house and picked stones which he threw at the deceased who ran into the house and closed the door. A neighbour, Gloria Mugweni (Gloria), intervened and counselled the accused who calmed down and after about an hour accompanied the accused to the house where Esnath Manzonza (Esnath) opened the door for the accused and Gloria returned to her house as the accused entered the house.

The accused, while in the house, took a knife from the kitchen. The reason for taking the knife is in issue. The State alleges that he wanted to use the knife to threaten to kill the deceased; but, the accused says he wanted to use it to fix the AV cables which he had connected but were no longer working.

It is not in dispute that a misunderstanding arose, again, between the accused and the deceased. The cause of this dispute is in issue. The State alleges that it was caused by the accused who blocked the deceased's way as the deceased wanted to go and bath threatening to kill the deceased. The accused, on the other hand, said it was because of the deceased who insulted the accused saying he was not going to give the accused the money for the jean trousers and that the deceased went on to spite the accused by taking the jean trousers and throw it at the accused. The accused said he could not take the jean trousers as it was now worn out, and, instead, demanded that the deceased should pay for the jean trousers which irritated the deceased.

The deceased proceeded to pick a log outside the house intending to assault the accused. The accused fled into the bedroom with the deceased in pursuit. The accused failed to escape from the bedroom and was held by the deceased as the two struggled. During that brawl, the accused stabbed the deceased on the right thigh, once, after which the deceased released the accused who fled. The deceased bled profusely, collapsed, and was, moments later, pronounced dead on arrival at Masvingo General Hospital.

The issues raised by the accused, in his Defence Outline, are mostly not in dispute. We shall therefore only highlight those aspects which are in dispute.

The accused said what initially angered the deceased was the accused's response that the deceased was also a bully as the deceased was refusing to pay for the jean trousers sold to the deceased. The accused said this prompted the deceased to arm himself with a broom-stick and assaulted the accused several times causing the accused to flee from the house.

The accused's story is that upon returning to the house it is the deceased who re-ignited the misunderstanding by boasting that he would not pay the accused for the jean trousers alleging that the accused was ill-disciplined and proceeded to impolitely throw the jean trousers at the accused; which jean trousers were now worn out. The accused said he then insisted that the deceased could not proceed to go and bath without resolving the issue of payment for the jean trousers. The accused said as he was working on the AV cables it is the deceased who went out to fetch a log in order to assault the accused. The accused's version is that he fled into the bedroom where he was cornered by the deceased who attempted to hit him with the log on the head. The accused said he ducked and the log hit the wall and fell out of the deceased's hands. The accused tried to escape through the window but he said the deceased held him from behind and then pinned the accused judo-style with the deceased's left hand around the accused's midriff while the inner side of the deceased's elbow was tightly locked around the accused's neck. The accused said both Gloria Mugweni (Gloria) and Piniel Manzonza (Piniel), who were at the scene, did not assist him or intervene. The accused said he was still holding the knife in one hand and the cables in the other. He said he refused to drop the knife when Gloria requested him to do so because the accused had first assaulted him with the broom stick, later tried to use the log, and was now throttling him. Further, the accused said the deceased ignored Gloria's plea for the deceased to let go the accused but instead tightened his grip, squeezing even harder as the accused stretched his leg trying to free himself. The accused said when the bed on which they were standing slid to one side they both fell down facing upwards with the deceased below the accused but keeping his vice like grip around the accused's neck using his fingers which caused the accused to run out of breadth. The accused said in order to avoid being strangled to death he proceeded to thrust the knife into the deceased's thigh in order to inflict sufficient pain thereby compelling the deceased to let go of the accused's throat.

In essence, the accused said he acted in self-defence when he stabbed the deceased with the knife.

In support of it's case, the State produced, by consent, three exhibits which are as follows;

(i) Exhibit 1: is the accused's confirmed warned and cautioned statement in which the accused indicated that he acted in self defence. It may be prudent for us to quote what the accused said;

“I admit the charge levelled against me. I stabbed Antony Manzonza with a kitchen knife on the right thigh and he died. I did this because I wanted to free myself as he was tightly holding me.”

(ii) Exhibit 2: is the post mortem report whose findings are not in issue. The deceased had a laceration from the right femoral triangle which was about 15cm long. The findings by the doctor is that the deceased died due to haemorrhage caused by perforated right femoral artery inflicted by the stab wound.

(iii) Exhibit 3: is the knife used by the accused to stab the deceased. It is a kitchen knife 33cm long with a 21cm blade which is very sharp at the end. The black handle is 12cm long and it weighs 0.010kg.

The testimony of both Nyasha Mkonzo, the Investigating Officer, and Dr Samson Pomo, who examined the now deceased and compiled the post-mortem report.., was admitted by consent in terms of section 314 of the (Criminal Procedure and Evidence) Act [Chapter 9:07].

In brief, Nyasha Mkonzo attended the scene of the crime where he recovered the kitchen knife…, and proceeded to record the accused's confirmed warned and cautioned statement…,. As already said, Dr Samson Pomo examined the deceased's body and compiled…, the postmortem report.

In order to resolve the narrow issue in dispute on whether the accused acted in self-defence we now turn to the viva voce evidence led from the State witnesses; Innocent Manzonza (Innocent); Piniel Manzonza (Piniel), Esnath Manzonza (Esnath) and Gloria Mugweni (Gloria). We shall also look at the accused's evidence. Thereafter, we shall outline the law in respect of the defence of self defence and apply it to the facts of this case as per the evidence before us in order to arrive at an appropriate verdict.

THE EVIDENCE

We have already alluded to the facts which are common cause, and, in dealing with the evidence of each witness, no useful purpose would be served by repeating those facts.

Innocent Manzonza said the reason why he refused to accompany the accused to church was not that the accused was drunk but that Innocent had spent the whole day at church. Innocent said when the accused tried to assault him he fled out of the house and the accused proceed to remove AV cables of the DVD and TV. In retaliation, Innocent said he also removed some cables. It was his evidence that when he accompanied the now deceased to the car park he reported to the now deceased his altercation with the accused and that upon their return from the car park Esnath Manzonza and Piniel Manzonza were at home and the accused was still away with the AV cables.

Innocent said upon the accused's return, the accused was ordered, by the deceased, to return the AV cables but the accused refused retorting that the deceased owed the accused money for the jean trousers sold to the deceased by the accused. According to Innocent, this is what angered the deceased who then took a broom stick and assaulted the accused all over the body indiscrimately forcing the accused to flee out of the house and throwing stones at the deceased from outside. This prompted the deceased to lock the door.

Innocent said when Gloria Mugweni later brought the accused home Innocent was preparing to retire to bed as they could not watch the TV. The accused had not reconnected the AV cables. Innocent said the deceased then left the bedroom intending to go and bath and he heard some exchange of words between the accused and the deceased in the lounge but was not able to tell the subject of discussion. All what Innocent said is that the deceased came to the bedroom and took a jean trousers which the accused had sold to the deceased and returned to where the accused was. He said the exchange of words continued between the accused and the deceased. He later on heard a thudding sound of a log in the kitchen and the accused immediately came running into the bedroom with the deceased in pursuit. Innocent said the accused was holding the knife…, in one hand and AV cables in the other hand and that the deceased was wielding a log some 1 to 2m long and about 12cm in diameter.

Innocent went on to explain what happened inside the bedroom.

He said upon entering the bedroom, the accused pulled the curtains at the window trying to escape through the window. He said the accused picked a small table in order to smash the window panes but failed to do so as the deceased had arrived and tried to hit the accused with the log. He said the accused ducked the blow jumping onto the bed and the log smashed into the wall causing the deceased to lose grip of the log which fell down. At that point he said the deceased also jumped onto the bed and held the accused by the waist and thereafter put his hand around the accused's neck and then used both hands round the accused's neck as both were in a standing position facing the same direction with the deceased behind the accused. Innocent said both the accused and the deceased struggled in a very violent manner, and, due to fear caused by the intensity of the struggle, Innocent ran out of the bedroom. He later heard Gloria, who had rushed to the scene, shouting asking the accused what he had done. Innocent said he immediately returned into the house and found the deceased lying in the kitchen bleeding profusely and was later ferried to hospital as Innocent went to make a police report. He was advised, that night, that the deceased had passed on at the hospital.

Prior to this day, Innocent said the accused and the deceased enjoyed very cordial relations.

Under cross examination, Innocent denied that he ever heard the accused threatening to stab or kill the deceased with a knife. Innocent's view was that when the accused took the knife from the kitchen the accused used it to try and fix the AV cables or cords and did not threaten the deceased. In fact, he said he later on realized that the accused had cut one of the cables with the knife before the accused ran into the bedroom holding both the knife and the cables.

In relation to how the accused and the deceased struggled, Innocent said the way the now deceased held the accused was frightening as the grip was very tight and the accused failed to free himself. Innocent denied that the accused was drunk or smelling beer. Instead, he said both the accused and the deceased were sober….,.

We turn to Piniel Manzonza's (Piniel) evidence.

Piniel confirmed that when the accused arrived home, the accused was confronted by the deceased in relation to AV cables and that a misunderstanding arose when the accused demanded money owed to him by the deceased resulting in the accused being assaulted with a broomstick and fleeing from the house. He described the assault with the broom-stick as severe as the deceased used a lot of force and that it was indiscriminate. He also stated that a neighbour, Gloria Mugweni, brought the accused back home.

Piniel testified that back home the accused tried to put back AV cables using the kitchen knife…, and that a misunderstanding developed with the deceased when the deceased wanted to go and bath and the accused demanded money owed to him. He said the deceased then took the pair of jean trousers and threw it at the accused after which the deceased got out of the house and came back holding a log. This caused the accused to flee into the bedroom and the deceased chased after him.

He went on to describe what happened inside the bedroom.

According to Piniel, the deceased tried to hit the accused with the log but the accused ducked and the log fell down. He said the deceased then grabbed the accused by the neck, tightly, as the accused tried to free himself to no avail. At that point, he said the accused was still holding the knife in one hand and the cables in the other hand. He said after the accused failed to free himself from the deceased's tight grip he stabbed the deceased once on the thigh forcing the deceased to release the accused. The accused then dropped the knife, got up, and fled from the bedroom. He said the deceased tried to chase after the accused but he failed and fell down after which he was ferried to hospital where he was later pronounced dead on arrival.

Contrary to what Innocent said, Piniel said the accused was moderately drunk and was smelling of beer but the deceased was sober.

Under cross examination, Piniel said the log the deceased picked and chased after the accused was about 2m long and fairly thick. He categorically denied that the accused took the kitchen knife from the kitchen in order to threaten the deceased. Instead, he said the accused never uttered any words threatening to kill the deceased, but, instead, he said the accused took the knife in order to repair the AV cables and proceeded to fix the cables as he quarrelled with the deceased demanding payment of the money for the jean trousers. In fact, Piniel said the accused had cut one of the AV cables with the knife when he was chased after by the deceased and only handed over the AV cables to Piniel later at the Police Station.

Piniel was probed on how the accused stabbed the now deceased. He said the deceased was older, of bigger stature, and stronger compared to the accused. He said before the accused stabbed the now deceased, the accused was being strangled by the deceased and had been overpowered as the accused had failed to free himself from the deceased's grip. He explained, in graphic terms, that the deceased was using both hands to squeeze tightly around the accused's throat and that the accused could have suffocated to death. To quote his own words Piniel said in Shona; “pakange pakaipa”; which means the situation was bad. He went further to say he too was afraid to intervene because of the intensity of the grip and the struggle which went on for some time before the deceased was stabbed. Piniel said, in his view, the accused was left with no other option other than to use the knife to force the deceased to let go the accused as the accused had totally failed to free himself from the deceased's life-threatening grip….,.

Gloria Mugweni's (Gloria) testimony is material on how the accused stabbed the now deceased as she witnessed the assault inside the bedroom.

Gloria, an elderly woman, said she was alerted to the events of this day when she saw the accused throwing stones outside the accused's house. She intervened and stopped the accused. The accused then explained to her that the deceased had assaulted him for demanding money owed to the accused by the deceased. She said the accused showed her the swellings and bruises the accused had sustained. Gloria said she nonetheless calmed and counselled the accused for about an hour after which the accused reacted positively and she took him back to his house and she returned to her house.

Gloria said after some time Esnath called her advising her that the accused and the now deceased were quarrelling again. She rushed to the house and found the accused and the deceased in the bedroom.

Gloria testified that inside the bedroom both the accused and the deceased were standing on the bed facing the same direction with the deceased at the back of the accused. She said the accused had a knife in one of his hands and the deceased was using both his arms to hold the accused's both upper arms pressing them against the accused's body. Gloria said the accused was trying to free himself, and, fearful that the accused could use the knife she asked the accused to give her the knife but the accused refused saying the deceased was strangling him and that he had been assaulted before. She said she then pleaded with the deceased to let the accused free but the deceased refused saying the accused had a knife. Gloria said the two continued to struggle, and, in the process, the bed they were standing on moved and they both fell down facing upwards with the accused on top of the deceased. She however said the deceased kept his hold on the accused and the accused then stabbed the deceased on the thigh with a lot of force resulting in the deceased releasing the accused who then threw down the knife…, and fled. Gloria said the deceased tried to chase after the accused but he collapsed in the kitchen, vomited, and fell unconscious after which he was ferried to hospital where he later died.

Under cross examination, Gloria said the deceased was holding the accused with a lot of force to such an extent that the accused was unable to extricate himself from the deceased's grip. She said the accused had no other means except to use the knife to force the deceased to release him….,.

We now turn to the accused's evidence.

We find no cause to summarize the accused's evidence-in-chief as it materially captures what the accused said in his Defence Outline. It also confirms what the accused said in his confirmed warned and cautioned statement…,. In brief, the accused explained the following:

(a) The accused's initial quarrel with Innocent and how he disconnected the DVD and television by removing AV cables.

(b) The accused's first misunderstanding with the deceased and how he was first assaulted with the handle of the feather duster and fled from the house until his return - after Gloria's intervention. The accused indicated that he sustained bruises and swellings as a result of the assault with the feather duster.

(c) The accused's second quarrel with the deceased; which he blamed on the deceased.

(d) How the deceased tried to assault him with a log for the second time as he was trying to fix the AV cable with the knife he had taken from the kitchen and how he fled to the bedroom.

(e) The accused explained how he failed to escape from the bedroom through the window and how the deceased cornered him in the bedroom and proceeded to strangle him in a near fatal manner.

(f) The accused explained why he stabbed the now deceased acting in self-defence using the knife he had fled holding in his hands together with the AV cables after he had refused to let go the knife when Gloria requested him to do so as it was the only weapon he could use against the deceased.

The accused pointed out that he was sober.

In cross-examination, the accused was taken to task in relation to his dispute with the deceased. In response, the accused said he had sold a pair of jean trousers to the deceased for US$15= in 2013 and the deceased had failed to pay that amount since 2013 giving many excuses and promises. The accused insisted that he took the knife…, not to threaten the deceased but to fix AV cables. The accused was questioned as to why he kept holding the knife until he stabbed the deceased. In response, he said the deceased was strangling him hence he could not let go the only weapon he had to defend himself. The accused admitted that he used a lot of force to stab the deceased in order to cause the deceased to release him. The accused insisted that before he stabbed the deceased he tried, in vain, to struggle to free himself for about 5 minutes and was losing breath due to the deceased's firm grip around his neck….,.

THE LAW

In terms of section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the defence of self-defence is a complete defence. It provides as follows;

“253. Requirements for defence of person to be complete defence

(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an 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 -

(a) When he or she did or omitted to do the thing, he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances; and

(d) Any harm or injury caused by his or her conduct -

(i) Was caused to the attacker and not to any innocent third party; and

(ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.

(2) 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 capability he or she may have had and any stress or fear that may have been operating on his or her mind.”

The requirements in section 253(1)(a) to (d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) are conjunctive and not disjunctive. In other words, for the defence of self defence to succeed as a complete defence the accused should satisfy all those requirements.

The starting point to consider is obviously whether, as a fact, the accused was under any unlawful attack.

An unlawful attack is that conduct which put one's life into danger or endangers one's bodily integrity or freedom. See section 252 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In assessing whether the requirements in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] are met, the court is enjoined to apply both the objective test and the subjective test. In other words, the Court should consider what a reasonable person in the accused's situation would have done taking into account the specific circumstances of the accused person.

Our law therefore accepts that it is permissible for one to harm or cause death upon an unlawful attacker. The key issue is whether such harm caused was reasonably necessary to fend off or ward off the unlawful attack. In deciding what is reasonable in the circumstances of each case, the Court, as already alluded to, should place itself in the shoes of the accused person and not expect the accused person to behave or act like a movie star hero, a super human with papal infallibility, or an angel. This point is well made by McNALLY JA in the case of S v Banana 1994 (2) ZLR 271 (S)…, in which the learned Judge of Appeal said;

“But also, HOLMES JA said in S v Ntali 1975 (1) SA 429:

'the Court adopts a robust approach, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence.'

See also S v Nicolle 1991 (1) ZLR 211 (S) at 217 B–D, and the CHIEF JUSTICE in S v Mandizha SC200-01 which dealt specifically with the question of whether self-defence was excessive. It repeated the point, made earlier in S v Phiri SC190-82, that one cannot take an armchair view of the events. They must be seen and judged in the light of the circumstances of the occasion. Finally, I refer to S v Moyo SC45-84 where the then CHIEF JUSTICE, DUMBUTSHENA CJ, stressed the fact that it was for the State to negative the plea of self-defence.”

In applying the law to the facts of this case we find the following facts and sequence of events not to be in issue;

(a) It is the deceased who first assaulted the accused indiscriminately with a broomstick or feather duster all over the body until the handle broke and inflicted swellings and bruises on the accused's body causing the accused to flee out of the house.

(b) After a good Samaritan and neighbour, Gloria Mugweni, counselled and calmed the accused it is the deceased who instigated the second misunderstanding by insisting that he would not pay for the pair of the jean trousers and proceeded to provokingly throw the pair of the jean trousers at the accused - which pair of trousers the deceased had worn since 2013.

(c) Despite being aware that the accused was in possession of a knife, whose purpose was not being rebutted by the State that the accused was using it to repair AV cables, and being warned by Esnath Manzonza that the accused had a knife, the deceased went on to take a log and attempted to assault the accused, now for the second time, causing the accused to again flee.

(d) The deceased remained undeterred and blocked the accused's exit from the house. In fact, he went on to chase the accused into the bedroom where he cornered the accused, despite the accused's valiant efforts to try and escape through the window, and, again, tried to assault the accused with the log.

(e) It is the deceased who thwarted the accused's escape bid by holding him first on the waist and then around the neck using both hands to throttle or strangle the accused.

(f) The deceased rebuffed the pleas by Gloria to let go the accused despite the fact that the deceased was aware that the accused was still holding the knife and had refused to drop the knife as the accused viewed it as the only weapon the accused had to defend himself.

(g) The deceased was unrelenting because even after they both fell down he would not let go the accused. Instead, the deceased tightened his grip around the accused's neck. The accused's version that he was losing breath and was now dazed has not been rebutted by the State.

Now, taking into account all these factors what was the accused expected to do?

The accused had tried to flee, in vain, and was now at the brink of losing his life through strangulation. No one came to help the accused.

The learned author, JONATHAN BURCHELL, in Principles of Criminal Law, 5^th Edition, 2016…., outlines some of the factors a court would take into account in assessing whether an accused person acted reasonably in the manner in which he defended himself or herself. The list is not exhaustive but include, inter alia;

(i) The relationship between the parties. In this case, the deceased was an uncle to the accused and the accused regarded him as a father. This explains probably why he fled, tried by all means not to fight the deceased or hit back but chose to flee.

(ii) The respective ages, gender, and physical strength of the parties. The deceased was much older to the accused. He was 36 years old and the accused only 19 years old. The evidence placed before us is that the deceased was of a bigger physical stature and stronger than the accused. This explains why he possibly overpowered the accused.

(iii) The location of the incident. The fatal blow was inflicted when the accused had been cornered inside a bedroom and had no other escape route.

(iv) The nature, severity, and persistence of the unlawful attack. In casu, the accused had been first assaulted with a broom stick or feather duster. The accused had been bruised and had swellings. The deceased persisted by using a 1–2 m long log and when he failed, the deceased decided to suffocate the accused by strangling him to the point that State witnesses said the accused could have died.

(v) Nature of weapon used in the unlawful attack. Despite that the deceased ultimately used bare hands when he was fatally stabbed his conduct was nonetheless life threatening.

(vi) Nature and severity of any injury or harm likely to be sustained in the unlawful attack. The accused pointed out that his life was in danger as the deceased throttled him. This was confirmed by the State witnesses, Innocent Manzonza, Piniel Manzonza and Gloria Mugweni.

(vii) Means available to avert the unlawful attack. The accused had a kitchen knife in his hand. He had tried to run away but the deceased caught him. The accused failed to wrestle free from the deceased's vice-like grip. It is clear the accused had no other option to save his life.

(viii) The nature of means used to offer defence. The accused's irrefutable evidence is that he decided to stab the deceased with a knife on the thigh in order to inflict pain and cause the deceased to let him go.

(ix) The nature and extent of harm caused or likely to be caused by the defence. In this case, the accused aimed the blow not necessarily on the most vulnerable part of the deceased's body but on the thigh. Indeed, he used a lot of force but it was fortuitous that he perforated the right femoral artery resulting in excessive bleeding. It remains a fact that all he intended was to inflict pain as the blow was not directed at an inherently fatal part of the human anatomy.

In conclusion, it is our view that the accused did not exceed the bounds of self-defence when one considers all the circumstances of this case. It is universally accepted that one is entitled to defend and protect both life and limb in self defence. Our law clearly provides for this.

We are satisfied that the defence of self- defence is available to the accused. The accused has managed to meet all the requirements set of in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Accordingly, we find the accused not guilty and he is acquitted.

VERDICT: Not guilty and acquitted.

Self-defence

For this defence to succeed, the accused must show that he was under imminent attack. He must establish that the action he took to defend himself was reasonable….,.

Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(1) 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:

(a) When he or she did or omitted to do the thing, he or she believed, on reasonable grounds, that the unlawful attack had commenced or was imminent; and

(b) 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

(c) The means he or she used to avert the unlawful attack were reasonable in all the circumstances…,.”…,.

Under South African Criminal Law, putative self defence is available to an accused who believes that he has a right to defend himself against an unlawful attack; the author, J BURCHELL, in his book, Principles of Criminal Law (4^th Edition)…, states the position as follows:

“The objective test of private defence has the consequences that the court may decide that although the defender believed that he was entitled to engage in a defensive attack, objectively viewed, the situation was not one in which he was justified in resorting to a defence, or, if he was, the steps taken in defence exceeded what was necessary to repel the attack.”

Even if we were to accept the accused's version we wonder why the accused alleges he acted in self defence as defined in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

If the accused had dis-armed the now deceased of the hoe handle it meant he had he had thwarted the alleged attack? Was it then reasonable, in the circumstances, to proceed to strike the un-armed now deceased with a hoe handle in the head?…,.

The bottom line is that the accused's version factually falls far short of meeting the requirements of self-defence in our law. Such a defence can therefore not succeed in the circumstances.

The accused failed to prove the requirements of the defence of self-defence as provided for in section 253(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was not under any unlawful attack when he stabbed the now deceased nor was such an attack imminent. It is the accused who was simply the aggressor for no apparent reason except to probably foolishly believe that he was impressing his newly-found girlfriend, Shelter Mukaro, who, instead, found his conduct frightening.

The defence of self defence is therefore not available to the accused.

The accused's defence was that he assaulted the complainant because he was assaulting his father. He was not saying his assault of the complainant was out of revenge. Rather, it was to stop the complainant.

The court should have deduced the defence of person, as defined in section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23 [“the Code”], or the defence of necessity, as contemplated by section 263 of the Code….,.

In the defence of person, in terms of section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], a person is excused if he commits a crime whilst, among other things, defending another person from an unlawful attack. An 'unlawful attack' is defined to mean unlawful conduct which endangers a person's life, bodily integrity or freedom….,.

According to section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], the requirements for the defence of person, as it relates to the defence of another, are as follows:

(i) That the unlawful attack had commenced, or was imminent. In this case the attack had commenced and was on-going.

(ii) That the accused's conduct was necessary to avert the unlawful attack and that he could not otherwise escape from, or avert the attack. The accused's striking the complainant in the manner he did was to stop the complainant from continuing to assault his father, Some Jim. Obviously, the second rung of this requirement does not apply to his situation.

(iii) That the means used to avert the unlawful attack were reasonable in the circumstances. A knobkerrie is not an inherently dangerous weapon. Admittedly, the accused's blows landed on the complainant's forehead, a rather delicate part of the body. Although the medical report suggested that severe force was used, and that a permanent disability was likely to occur, it also ruled out the likelihood of any danger to life. Furthermore, the accused delivered only two blows. These inflicted no more than a cut and severe contusion [or bump] on the forehead.

(iv) That any harm or injury caused by the accused's conduct was to the attacker and not any third party; and that the harm was not grossly disproportionate to that liable to be caused by the unlawful attack.

Weighing proportions in matters of this nature calls for value judgment. Nobody can say how far the complainant might have gone in assaulting Some Jim if the accused had not intervened. Therefore, without a proper investigation, it cannot be said the cut and the contusion on the complainant's forehead were disproportionate to the harm the complainant was likely to inflict on Some Jim.

According to section 263 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], for necessity to be a complete defence, the requirements are broadly similar to those for the defence of person. They are these:

(i) That the harm which the accused sought to avoid would have resulted in, among others, the death or serious bodily injury to himself or another person;

(ii) That the accused believed, on reasonable grounds, that the harm had started or was imminent;

(iii) That the harm did not arise through his own fault;

(iv) That he believed, on reasonable grounds, that his conduct was necessary to avoid the harm and that there was no other feasible way of avoiding it;

(v) That by his conduct he did no more harm than was reasonably necessary to avoid the harm and that the harm he himself inflicted was not disproportionate.

Undoubtedly, the accused's conduct seemed to eminently fit all those requirements.

Although the accused concedes that she exceeded the bounds of self defence it must be noted that she was threatened with a knife by the deceased and that there was a physical confrontation between the parties.

Defence counsel says, somewhat cursorily, and at the tail-end of the argument, that the accused was entitled to defend himself and/or his friend from Kudakwashe Musvamhuri's unlawful attack.

No attempt at all was made to analyse the requirements of this defence as defined in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) to see whether it could apply to the accused's situation.

The Code sets out stringent requirements before the defence of person can be available as a complete defence.

From our conclusion earlier on that it was the accused who armed himself with a log to strike Kuda, we are satisfied that the defence of person is not available to the accused because:

(a) It has not been shown that the accused could not otherwise escape from, or avert the alleged attack by Kuda [section 253(1)(b)];

(b) It has not been shown that the means the accused used to avert the attack were reasonable in all the circumstances [section 253(1)(c)];

(c) Most crucially, the harm done by the accused was on an innocent third party [the deceased], not Kuda [section 253(1)(d)(i)]; and

(d) The harm [the death of the deceased] was unquestionably grossly disproportionate to that liable to be caused by Kuda who was unarmed [section 253(1)(d)(ii).

The accused, who was initially facing a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], was subsequently convicted on his on plea of guilty of contravening section 49 of the same Act which relates to culpable homicide. This was after the matter proceeded on the basis of a statement of agreed facts.

This is a borderline case between murder and culpable homicide.

The State may have found its work cut out as there was no eye witness to the fatal assault of the now deceased. In addition to that, the now deceased was the aggressor who in fact followed the accused who had decided to walk away from the confrontation. To compound matters, the State could not rebut that the now deceased is the one who possessed the lethal weapon, being an okapi knife, and that he pulled it out to stab the accused but was dispossessed and instead fatally stabbed. The defence of self defence, in the circumstances, is available to the accused although the means he used were not reasonable.

The accused was charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged, by the State, that on 10 January 2017, and at Tsungwesi Business Centre, Odzi, the accused unlawfully and with intent to kill or realising the real risk or possibility that his conduct may cause death and continuing to engage in that conduct despite the risk or possibility stabbed Trymore Chivandire with a knife thereby inflicting injuries from which the said Trymore Chivandire died.

The accused pleaded not guilty to the charge and proffered a defence of self-defence.

The accused's Defence Outline, which was later adopted as evidence in chief, was basically to the effect that the deceased assaulted the accused using bare hands and fists. Later, the deceased took out a knife which the accused wrestled to get and stabbed the deceased in self defence.

The summary of the State case was that on the day in question, the accused, who passed by Tsungwesi Business Centre to collect his phone, which he had earlier left for charging, had an altercation with the deceased. The two had a tumultuous history which came about over the headmanship of their village. The deceased's father, as village head, had been dislodged by the accused who was the chairman of the village following resettlement. The deceased and his family were aggrieved by the dislodgment of the deceased's father, one Isaac Chivandire, from the position hence the friction between the parties. This culminated in the parties obtaining a peace order from the Magistrates Court. On the fateful day, the deceased, who could not stand the sight of the accused, ordered the latter out of the shop and while outside the two had a misunderstanding which culminated in the accused stabbing and ripping open the deceased's stomach exposing the intestines. Following the stab wound, the deceased later died and the cause of death was established as hypovolemic shock secondary to bleeding bowel; postmortem report by Dr Forgiveness Chitungo, exhibit 3, refers.

The State adduced evidence from nine (9) witnesses as follows:

Evidence of all the other witnesses except the first, Ngwarai Satuku, and Doctor Chitungo, was formally admitted as it appears on the summary of the State Case in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The evidence of Israel Muguti was expunched from the record as the witness could not be located.

Ngwarai Satuku gave viva voce evidence.

It was clear from the witness that there was bad blood between the deceased and the accused as they struggled over leadership of the village. The witness recounted how the deceased was in the habit of harassing the accused every time they met and how he would seek to violently drive the accused off. On the fateful day, the witness restrained the deceased twice when the latter ordered the accused to leave the beer outlet. According to the witness, he and the deceased and colleagues were drinking opaque beer commonly known as “supa” and that the accused was also drinking the same beer seated at the other side of the beer outlet. The witness told the court that when the accused left the deceased also left. He observed the deceased try to kick and punch the accused but missed as the accused evaded the attack, and, shortly thereafter, he heard the deceased call out to the accused that he had been injured by the accused. He further heard the accused retort that the deceased had pursued him for too long. The witness observed the deceased's intestines were out and he was taken aback.

The witness' evidence was straight forward, as he spoke of the common cause aspect of acrimonious relationship that existed between the accused and the Chivandire's, and, in particular, the deceased.

Dr Chitungo also testified orally.

He basically narrated how he observed the body of the deceased and compiled the post mortem report. The doctor's evidence was clear evidence to follow as he explained his observation. He was highly professional in the manner he testified. Even though he was unnecessarily subjected to lengthy cross examination by the legal counsel, he did not lose his head. He did not attend to the deceased as a patient but carried out a postmortem examination. He observed injuries consistent with assault by a sharp object. His conclusion was well anchored on his observations. The doctor was candid with the court when he pointed out that the injuries could be described as moderate to severe.

We must point out that we wondered where defence counsel got the impression that the doctor said the injuries were neither moderate nor severe. The doctor's evidence could have easily been formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as it was clearly not controversial. We hasten to say the doctor, who was highly professional, assisted the court on medical science.

The State also tendered in evidence the sketch plan, exhibit 2, depicting the scene of crime as indicated by the witnesses and the accused. The sketch plan, just as pointed out by the accused, shows that the accused was way ahead of the deceased such that one wonders how the two ended up together at the point when the deceased was stabbed. The State further produced exhibit I, a confirmed warned and cautioned statement by the accused which, in principle, was to the effect that the death occurred when the accused was defending himself.

The accused was the only witness in his case.

He told the Court that he was acting in self-defence and that when he cut the deceased, the deceased was actually on top assaulting him with clenched fists. The accused gave an incredible story of how he reached out for a knife on the ground using his leg while the deceased was mounting and pinning him down.

A lot of questions come out from the accused's version given he told the court he used the knife and that the knife was not his. If the knife fell from the deceased's grip given the lying down position of the deceased, pinned down and facing upwards, one wonders how he could see the knife for him to pull it with his leg and then stab the deceased's buttock and “cut” (the accused's words) the stomach to the extent of having the intestines out. The account of what transpired between the accused and the deceased left the Court with questions as to how the man described by the accused as very drunk would have over powered the accused who was sober and had taken a 20 or 40 metre headstart.

The accused, when probed on events of the day in question, buckled on recounting the sequence of events outside. He waited ready for confrontation as he felt justified since the deceased had for too long pestered, harassed, and belittled him. This was clearly read from his remarks when the deceased cried out over injuries; “you have got what you deserved for you have pestered me for far too long.”

Upon considering the totality of the evidence adduced before the court, the following factors are common cause;

(1) That the deceased and the accused were sworn enemies over leadership wrangles.

(2) That on the fateful day the accused was aggressive toward the deceased and had to be restrained, twice, when he was ordering the deceased out of the beer outlet.

(3) That the deceased stabbed the accused with a knife per his say so even though the knife was not recovered.

(4) That the deceased sustained injuries from which he bled leading to his death due to hypovelcamic shock secondary to bleeding.

(5) That the deceased was drunk and using open hands and booted feet.

We must point out that at the close of the State case the defence applied for the discharge of the accused on the basis that there was no prima facie case upon which a reasonable court acting carefully would convict the accused.

We dismissed the application and pointed out that our reasons would be clear in the main judgment.

It was apparent, at the close of the State case, that the deceased and the accused, on the day in question, had an altercation. Further, that during the physical encounter, the deceased sustained injuries which occasioned his death. The accused was within the vicinity as could be discerned from the State witnesses. The deceased was pierced by a sharp object and the accused's Defence Outline points to the accused's use of a knife.

At the close of the State case, the court is not looking at proof beyond reasonable doubt as it would do at the close of all the evidence but is rather looking at whether nor not, from the evidence adduced, the State has proved or shown a prima facie case. Put in other words, whether or not, at the close of the State case, there is evidence linking the accused with the commission of the offence.

Clearly, from the State case, there is evidence linking the accused with the offence.

Phrased differently, if the accused were to choose to remain silent in the defence case, is there evidence upon which the court can convict? If the answer is in the affirmative then the accused ought to be placed to his defence, and vice versa.

The fact that the deceased was the aggressor in the past, and on the day in question, is not a defence to the alleged criminal offence. The charge as preferred by the State, murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has a two pronged facet of intention, namely, actual intention or the common law constructive intent that is foreseeability intention as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act. The defence proffered is provided for under section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and is a complete defence to murder, provided the requirements as outlined in section 253 of the Criminal Law (Codification and Reform) Act are met.

Given the evidence that the deceased was unarmed and that he was stabbed when he came into contact with the accused it would be an improper exercise of assessment of evidence to frown at evidence linking the accused to the commission of the offence at the close of the State case. In the face of the prima facie case established by the State at the close of the State case we dismissed the application for discharge of the accused.

An analysis of the totality of the evidence and the applicable law falls under scrutiny as we seek to come up with a disposition of the matter.

The charge of murder, as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] can only be proved where there is both action and intention on the part of the perpetrator. This court, and the Supreme Court, has, in several cases, sought to define what would constitute intention. In S v Memu HB143-13 the court stated that actual intention exists when an accused sets out to cause the death of the deceased and where he foresaw that death was substantially certain to occur but nonetheless persists with his conduct.

See S v Mugwanda 2002 (1) ZLR 574 (S)…, the Supreme Court held that:

“For a court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt either;

(i) The accused desired to bring about the death of his victim and succeeded in completing that purpose; or

(ii) That while perusing another objective, the accused foresaw the death of his victim as a substantially certain result of the activity and proceeded regardless.”

In this case, the accused used a knife to stab the deceased in the stomach, albeit once; intestines were exposed leading to loss of blood which occasioned death. The weapon used and the manner in which it was used given the part of the body to which it was directed established the requisite mens rea in the commission of the offence. Given the nature of injuries occasioned, the weapon used, and the manner in which the assault was perpetrated one cannot fail to read realization of risk or possibility of death ensuing from such conduct.

In the case of S v Mhako 2012 (2) ZLR 73 the court discussed the common law concept of “constructive intent” (on defining legal intent behind murder) and its replacement under the Criminal Law Code [Chapter 9:23] with “realisation of risk or possibility of death ensuing from conduct.”

As discussed in S v Mhako 2012 (2) ZLR 73 there are two components to be considered;

(a) The first being whether or not the accused realized that there was real risk or possibility other than a remote risk or possibility that;

(i) His conduct might give rise to the relevant consequence; or

(ii) The relevant facts or circumstance existed when he engaged in the conduct.

(b) The second element of recklessness; that is, whether despite realising that risk or possibility referred the accused continued to engage in that conduct.

In this case, the accused struck the deceased with a knife in the stomach. The accused, in this case, was not being attacked by an armed attacker. The accused was reacting to past harassment and conflict with the deceased. That would be a suggestion of provocation but certainly not a defence to the charge of murder. The accused personally raised self defence as his defence. A close look at the requirements of the defence when viewed with the totality of evidence reveals that the accused does not have that defence available for want of meeting the requirements. For the defence of self-defence to succeed, as provided for in section 253 of the Criminal Law (Codification and Reform) Act, the following requirements have to be all met that:

(i) There must be an unlawful attack.

(ii) The attack must have been imminent or have commenced.

(iii) The conduct must have been necessary to avert the attack and the accused otherwise had no other way to escape from the attack.

(iv) The means used to avert the attack were reasonable.

(v) The harm was directed to the attacker and was not disproportionate to the harm that the accused could have received.

Worth noting is the wording of section 253 of the Criminal Law (Codification and Reform) Act on the requirement of the defence of self-defence by the use of the word 'and.' It is apparent that the requirements are conjunctive and not disjunctive. Thus, a person pleading self defence ought to meet all the requirements in order for the defence of self-defence to be available as a complete defence…,.

See S v Mabvume HH39-16 and also S v Muchairi HB12-13.

In casu, the accused, on being confronted by the deceased to leave the beer outlet, exited, upon realising the deceased was not budging to the restraint by his colleagues. The deceased was belligerent to the accused but the evidence before the court is that he was observed by the State witness trying to punch and kick the accused and the latter evaded the blows. This evidence was not refuted by the accused who actually pointed out that the deceased was very drunk on the night in question and that he used blows and open hands on the accused.

Given this state of affairs then the question that begs of answer is; what unlawful attack was the accused under other than being ordered to leave the shopping centre?

Assuming the deceased was punching the deceased, given the undisputed evidence that the deceased was heavily intoxicated, the next question in relation to the requirements of the defence of self defence would be, given that the deceased was in that heavy or hopeless state of intoxication and not using any weapon on the accused, was it necessary to slice open the stomach to avert an attack of blows, fists, and booted feet from a man under the influence of alcohol?

In the circumstances of this case the answer is in the negative.

The harm was directed to the deceased, but, given his drunken state and that there was plenty of open space for the accused to make good his escape, one cannot help but conclude that using a knife to thwart an unarmed drunken man's attack is disproportionate to the attack and thus unreasonable in the circumstances.

Going by the accused's evidence, and State witnesses, the accused left way ahead of the deceased such that he could have made good his escape without any engagement in combat or confrontation with the deceased. The deceased never used the knife on the accused such as to justify the stab wound that exposed intestines leading to the fatal bleeding.

The deceased had, for long, harassed the accused but such is not a defence for the accused given the events of the day in question.

The accused, when he testified in evidence in chief and under cross-examination, emphasises that he had endured a lot of humiliation at the hands of the deceased and his family. Whereas this might be the correct position and would amount to provocation it certainly is not a defence neither does it bolster the requirements of self-defence. The built up of past experiences at the rough hands of the deceased only bolster and depict a man who stood ready to show that it was time to clearly say enough is enough.

The accused's evidence on how he ended up having a knife and stabbing the deceased was not only incredible but false or fallacious beyond reasonable doubt.

It was apparent from the accused's evidence that earlier on in the morning of the fateful day the deceased had approached him while in the comfort of his home. The deceased was then armed with a knobkerrie and threatening the accused who fled to the mountains. In the evening, the accused was ready for the deceased hence the confrontations. The accused used a knife and no evidence was adduced to show it was not his. All that the accused said was refer the court to the history of harassment at the hands of the deceased and punctuate it with question; “if you were me what would you have done?”

These words resonated well with his last words when the deceased revealed he had been injured.

The accused felt even and that the deceased had got what he deserved. Even if the accused was a victim of the unlawful harassment over the wrangle of village headmanship, recklessness and unreasonableness in the exercise of the right of self-defence does not amount to a defence. As in this case, the attack by a knife on an unarmed, very drunk individual was grossly dis-proportionate and unreasonable in the circumstances.

The defence of self defence cannot be sustained.

The accused, in this case, realised the real risk or possibility that his conduct of attacking the deceased with a knife, that death would ensue, and he, despite the realisation, stabbed the deceased below the umbilicus exposing the bowel/intestines. The deceased sustained injuries from which he bled leading to his death being occasioned by hyprovelomic shock due to bleeding.

Accordingly, the accused is found guilty of murder as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused is facing a charge of murder; it being alleged that on 4 April 2014 at House Number 32443 Entumbane, Bulawayo, the accused did wrongfully, unlawfully, and intentionally kill and murder his elder brother Eddington Muchairi.

According to the State summary, Annexure “A” the deceased was 40 years old at the time he met his demise, while the accused was aged 35 years. The two brothers stayed at the same house, 32443 Entumbane. At around 19:30 hours, on the fateful day, the deceased and the accused had an altercation on family issues which resulted in the accused striking the deceased with a hoe on the head and he collapsed. The deceased was rushed to Mpilo Hospital where he succumbed to his injuries on 6 April 2014.

In his Defence Outline, annexure “B” the accused, in denying the charge, denied the intention to kill and raised self defence.

He averred that he was defending himself from the deceased who was approaching him with the intention of attacking him with a stone and from the deceased's wife who had picked up the hoe first and later had thrown it into the garden where he then picked it up.

He added provocation by the deceased and intoxication whose combined effect he alleged made him not realize the real risk/possibility his conduct would cause.

The other addendum was that the deceased, who was intoxicated, had earlier on fallen to the ground a couple of times on a hard surface with rocks.

He said he struck the deceased with a hoe once on the back, slightly below the neck, and once on either shoulder. He denied the allegation that he uttered the phrase “minus one” soon after assaulting the deceased.

The following exhibits were tendered by the State by consent:

(i) Exhibit 1 - affidavit deposed to by Constable Mwembe who identified the deceased's body to Dr I. Jekenya on 7 April 2014.

(ii) Exhibit 2 - the post mortem report number 86/67/2014 by the pathologist Dr I. Jekenya.

(iii) Exhibit 3 - the metal hoe used by the accused to strike the deceased with the following specifications:

(i) Weight = 2,5kg.

(ii) Length of handle = 84,5cm.

(iii) Length of blade = 14cm.

(iv) Sharp edge = 16cm.

Two witnesses, Tragedy Muchairi, the accused and the deceased's sister, and Sikhumbuzo Ncube, the accused's neighbour, gave viva voce evidence for the State.

The evidence of Lovemore Mutsakani, the police officer who recovered the hoe, and that of the pathologist, Dr I. Jekenya, was introduced by consent in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused gave evidence and closed his case.

What is common cause in casu is that on the day in question the accused did strike the deceased three (3) times with the hoe, exhibit 3, bearing the specifications alluded to supra. He denied landing the blows on the deceased's head saying he struck him once on the back and once on either shoulder.

He sought to throw spanners into the fireworks by saying, before the assault, the deceased had slipped and fallen twice on a rocky surface. He did not say the deceased sustained injuries as a result of the fall.

We are not persuaded any bit that the deceased sustained the head injuries observed by the pathologist which occasioned his demise from the alleged fall. We are satisfied that it was the accused who caused those head injuries.

This is corroborated by the evidence of Tragedy Muchairi, whose testimony we accept, that although she did not actually see the accused deliver the blows on the deceased's head; when the accused approached her and the deceased on the road, she jumped across a drain and then heard “boom” the sound of the hoe striking the deceased three (3) times. When she later checked the deceased, he was lying down in a pool of blood.

Sikhumbuzo Ncube also heard the same sound, and after the accused had run away, he found the deceased lying in a pool of blood bleeding from his head.

Also, the pathologist found no injuries on the parts of the deceased's body the accused said he aimed the blows at.

The accused raised three (3) possible defences viz -

(i) Self-defence;

(ii) Provocation; and

(iii) Intoxication....,.

The first defence requires closer scrutiny.

Self defence can only succeed if all its requirements are met. The requirements are:

1. There must have been an unlawful attack which had either commenced or was imminent.

2. Upon the accused or a third party to whom the accused owed a protective relationship.

3. The accused acted to avert the unlawful attack if escape is not practical/feasible.

4. The means used must be reasonable and proportionate to the unlawful attack.

5. The accused must desist as soon as the danger is past.

The evidence in casu shows that the self-defence raised by the accused is a red herring (fallacy). It cannot succeed.

Even the accused's counsel conceded so in his closing arguments.

Admittedly, there was a series of episodes of pushing and shoving e.g. collar grabbing between the deceased and the accused which the sister would quell, including the accused punching the deceased and some stones being held or thrown by the parties.

However, what is crucial is that, at the critical moment when the accused struck the deceased with the hoe, the accused was not under any attack at all from the deceased.

According to Tragedy Muchairi's evidence, she was standing with the deceased on the road and the accused had gone back to the house. The accused then returned wielding a hoe which he then used to butcher the deceased.

The accused was therefore not under attack at that time.

Even if the court were to be benevolent to the accused and go by his version, that the deceased was following him holding stones, this still would not exculpate him.

He said he ran into the yard and the deceased's wife dropped the hoe and the deceased was following him. He then picked up the hoe and went back towards the deceased who bent down and he then struck him and he fell  When the deceased tried to get up for the second time he delivered two further blows.

(i) First, the accused had the opportunity to escape instead of going back to meet the deceased;

(ii) Secondly, he had no reason to strike the deceased, who, at the time, was bending down; and

(iii) Thirdly, the accused had no cause to deliver the second further blows to a man who was already down and was failing to rise – the feared danger was already past.

The means used to avert the imagined attack were both unreasonable and disproportionate to the attack. The accused did not desist as soon as the danger was past.

In the event, self defence cannot avail him.

This case involves an allegation of murder of one brother by the other blood brother. It is the State's contention that on 15 August 2017, and at Village 51 Nyamusosa, Mayo, the accused unlawfully caused the death of Gabriel Masomera by striking him with a log once on the head with the intention to kill him or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility, resulting in injuries from which Gabriel Masomera died.

The accused pleaded not guilty to the charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused raised a defence of self-defence.

In his Defence Outline, the accused pointed out that the brothers, who had been assisting their parents at the brick kiln, had a misunderstanding over allegations by the deceased that the accused had extra marital affairs. This issue was brought to the attention of the accused in the presence of his 10 year old son, one Wisdom Masomera. This did not go down well with the accused hence the two engaged in a war of words. The mother, on realising the two were argumentative, ordered them to proceed to their respective homes. Whilst on the way, according to the accused's version, the deceased started physically assaulting the accused thus prompting the accused to pick a log and strike the deceased once and then the accused fled as he was in fear that the deceased would get up and follow him to fight again.

The summary of the State case captured the basis of the allegations on the day in question as follows:

The accused and the deceased were at their parents' home assisting their parents to bum bricks at a kiln. The deceased remonstrated with the accused on the latter's behaviour of having extra-marital affairs and this led to a misunderstanding. The accused left for his home but decided to waylay the deceased who followed and the accused struck him with a log.

The issue that falls for determination is whether or not the accused had the requisite mens rea when he caused the death of the deceased.

The State adduced evidence by tendering documentary evidence and leading evidence from witnesses. The confirmed warned and cautioned statement of the accused. The post mortem report by Dr Roberto Trecu, Affidavit of evidence by Dr Matsvai and sketch plan drawn through indications of witnesses and the accused were produced as exhibits 1-4 respectively by counsel.

Evidence of all the other witnesses, 2 and 4-11, was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Rosemary Chitagu, the mother of the accused and the deceased, and Winston Muchineripi Masomera gave oral evidence.

Rosemary Chitagu's evidence was on common cause aspects that on the day in question their children, including the deceased and the accused, were assisting them at the brick kiln. In the evening, the family gathered by the fire outside while the father and mother were inside the kitchen hut. According to the witness, the children, that is the boys, were drinking beer courtesy of the witness and her husband, the second witness. According to the witness, the beer purchased for the “boys” was two (2) crates of opaque beer commonly known as “scud”. The witness told the court that not all the beer was consumed and none of their children was drunk. The witness told the court that the deceased remonstrated with the accused over his wayward behaviour of having extramarital affairs. This did not go well with the accused who left for his home. The deceased remained behind and indicated he would stroke the fire to ensure that the fire at the kiln was attended to. Thereafter, the deceased bade his mother farewell.

Within a short space of time she heard noise and words to the effect “arise, arise, muka, muka” and advised her husband that their children were fighting but the latter was dismissive. The witnesses went out to investigate and she found the accused standing while the deceased was lying on the ground injured. The witness told the court that the accused was shouting in a weird manner that she thought maybe he was possessed given she was used to him being a respectable young man, but, on that day, when she sought clarity from him he disrespected referring to her in the singular; “hey you don't talk to me.” The accused went away with the log while the witness was trying to resuscitate the deceased using water after she had notified her other son Benjamin. The deceased regained consciousness and was taken to the clinic then hospital where he eventually died.

The witness' evidence was straight forward and she maintained, understandably, as a mother, that she was shocked in the manner the accused had struck his brother given ordinarily the two were close and the accused respected his elder brother. She maintained that there was no illicit brew of nipper or kachasu/tototo partaken by the children at the residence. She also suggested she did not know how to brew this beer.

Her evidence in this respect, and on all material aspects, was confirmed and corroborated by the husband Winston Muchineripi Masomera.

The latter confirmed that their children were, on the day in question, drinking opaque beer commonly known as “scud”. This was after assisting the parents at the brick kiln. His evidence as regards the sequence of events was the same as that of his wife. The accused left after having been remonstrated with over having extra marital affairs and an argument about tobacco seed. A while later the witness was called to the scene where the deceased was lying unconscious. Despite taking the deceased to the clinic and hospital the latter died.

The witness was firm that there was no illicit brew being partaken at his house on the night in question but opaque beer. He, just like his wife, pointed out that his wife could not brew the illicit beer as she was a member of the apostolic sect. He was equally surprised at how the accused turned violent on the night in question as he ordinarily respected his elder brother.

The accused was the only witness in the defence case.

He maintained that he was acting in self-defence and that he was intoxicated.

Upon considering the totality of the evidence, the court is left to decide on whether or not the defences of self defence and intoxication can be sustained in this case; or, put in other words, whether or not the defences, as suggested by the accused, negate the intention to kill the deceased.

The accused, in his account, pointed out that the deceased punched him with clenched fists and also struck with open hands. This, he said, happened while at the homestead when they had a misunderstanding about his alleged issues of extramarital affairs. This alleged physical combat was not confirmed by the State witnesses who pointed out that their children/sons only shouted at each other about the issue but there was no exchange of blows.

Both the father and the mother intended to stop the argument over tobacco seed and/or extra marital affairs.

By the way, we have no reason to doubt the State witnesses' evidence.

If we are to accept that the accused did not waylay the deceased his version was that the deceased was assaulting him with open hands hence he defended himself.

The question; is the defence of self-defence available in the circumstances?

Section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the defence as a complete defence where all requirements therein are met. The requirements can be safely summarized as follows:

1. An unlawful attack must have commenced or be imminent.

2. The conduct by the accused was necessary to avert the unlawful attack and that he could not otherwise escape from the attack.

3. The means used to avert the unlawful attack were reasonable in all the circumstances and the harm caused was not grossly disproportionate to that liable to be caused by the unlawful attack.

In the circumstances of this case, all the requirements cannot be reached.

The accused used a log to strike the deceased's head whereas the accused stated that the deceased was unarmed; such a reaction was grossly disproportionate, and, in any event, given the good head start by the accused one wonders why he did not make good his escape.

When the accused testified in evidence in chief, and under cross examination, and even in the closing submissions, it was apparent the defence of self defence was raised as a mere gamble as the accused failed to account for how he was attacked or assaulted to warrant the use of a log to avert the attack.

The defence could not be substantiated given the sequence of events.

The accused was charged with murder in that on the 8^th day of September 2016, at Umsweswe Bottle Store, Pingo in Kadoma, he unlawfully and with intent to kill caused the death of Linda Runyararo Mushangi by stabbing her on the stomach with a knife causing injuries from which she died.

The summary of the State's case was that on the day in question, the accused, Arnold Jeri, who had been drinking beer at Umsweswe Bottle Store when the deceased, Linda Mushangi, visited her friend, Tatenda Gwata, had tried to endear himself to the deceased but had been spurned. This had apparently irked the accused who had slapped the deceased on the face with an open hand and had intensified his assaults with booted feet. The deceased had picked up an empty beer bottle and had hit him with it.

Attempts had been made to stop the accused from assaulting the deceased. She had used this window of opportunity to run away from the accused by seeking refuge from some patrons. The accused had followed her with a knife and had tried to stab her from both left and right sides before he succeeded in stabbing her in the stomach from the left. She had screamed and had run out of the room and had collapsed at the foot of the veranda. The accused was said to have run way from the scene. He had eventually surrendered himself at ZRP Nyamapanda on 14 November 2016.

The accused's defence was that the deceased had shouted at him using obscene language and that she had caught him unaware and struck him twice with a beer bottle on the head. He had used his knife in self-defence as he wanted to disarm the deceased whom he said was holding a broken beer bottle. It was during this time that he had accidentally stabbed the deceased's stomach....,.

It was therefore not in dispute that the accused had stabbed the deceased in the stomach....,.

The State's evidence

Tatenda Gwata: She worked as bar lady for the owner who had several bars and bottle stores. The deceased was her friend who would come to the bar to assist her with relief duties and preparing food. She knew her as a relative of one of the women who also worked at the bar. She also knew the accused as a patron at the bar. He was called Pipiro by his friends. She had been working at that particular bar for a week as the owner had several bars.

Her collection of the events of that day was that Kabanga Muyambo had been the first to arrive at the bar and she had sold him beer. The accused had then arrived later. The deceased had arrived between 16:30 and 17:00 hours. They had discussed what they would eat and had decided on buying plain sadza to consume with milk. It was when the deceased was coming from buying the sadza that the accused had thrown an empty bottle of water at her and the deceased had protested and indicated that she did not like that behaviour. The accused had not responded, but, when they started eating he had returned again and wanted to know why he had been excluded from joining them in their meal. He had not been answered.

It was at around 20:00 hours that the accused had again approached the deceased saying she should come to him as he had summoned her on several occasions. The deceased had responded that she had already told him that she was not interested in his advances. She had asked the deceased if she had any relationship with the accused to which she had said no. The accused had, at that point, slapped the deceased on the face and had kicked her resulting in her hitting the refrigerator. He had also gotten hold of the deceased and had head butted her several times. At that point this witness had screamed and had thrown a bottle top at Kabanga Muyambo, the accused's friend, who had been asleep. So vicious was the attack against the deceased that she had had to close her eyes and hold her face in her hands as she let out that the accused would injure the deceased from the way he was head-butting her. It was also at this point in the assault that the deceased had taken an empty beer bottle and had hit the accused with it.

Kabanga Muyambo had woken up and had tried to pull the accused away but he had been beaten and pushed against some empty crates stacked against the wall. The accused had pushed Kabanga Muyambo outside the bottle store and had himself come back to continue his pursuit of the deceased who had now taken refuge behind one of the three patrons who were in the bar. He had continued his assault even as one of the men stood between the accused and the deceased as a human shield.

It was also her evidence that two of the men had managed to subdue the accused and had taken him out of the bar but he had come right back in. It was when he returned again that he had drawn a knife from his satchel which he had been carrying on his back. He had, once again, gone to the deceased who was behind a patron and had tried to stab her several times until he had been successful in doing so on the left side. The deceased had screamed that she was dying and had run outside at that point before collapsing to the ground.

The accused had put back the knife in his satchel and had walked out of the bar.

Whilst at the height of the assault on the deceased, she had hidden behind a door; she had, nonetheless, been able to continue observing from a vantage point provided by wide gap between the hinges.

The police had been called and had attended the scene. She had only left the following morning when her statement and photographs from the scene had been taken.

Asked to comment on the accused's sobriety at the time of the assault she stated, in her examination in chief, that on that day she herself had not observed him drinking but had noticed that he was carrying a bottle of water which looked like it had water inside although she did not verify its actual contents. She however did not think he was drunk.

As to whether the deceased had provoked the accused in any manner she had not heard anything and certainly at no time had she heard the deceased hurl any insults at the accused.

In cross examination, she confirmed when asked that she had heard that the deceased was a sex worker but that she had not seen her solicit at the bar in question.

Counsel for the accused had also put it to her that she herself was a sex worker like her friend before the court objected to this line of questioning of the witness's moral turpitude as irrelevant to the case at hand.

She conceded that hitting someone with a bottle was dangerous.

She was asked why the other three men who were drinking in the bar had not intervened at the time of the slap on the basis that if she had done nothing to the accused they would not have left him to assault the deceased. She did not know their reasons for not intervening then.

She had also stood steadfast that the deceased was no longer armed with a bottle and was merely hiding behind the man in question for protection when she was stabbed by the accused.

As regards the accused's sobriety, it was put at her that the bottle of water that the accused was carrying may in fact have contained alcohol and that she could therefore not dispute that he was drunk.

From her evidence, therefore, what we deduced materially were the following crucial points:

(a) It was the accused who had assaulted the deceased first and had engaged in a vicious assault including pushing and head-butting the deceased.

(b) It was during this assault by the accused on the deceased that the latter had retaliated by hitting him with a bottle.

(c) Efforts had been made to restrain the accused from further assaulting the deceased before the fatal stab.

(d) At the time of the stabbing, the deceased had been standing behind a patron who had stood as a buffer between the accused and the deceased.

Kabanga Muyambo: His evidence was that he had arrived at the bar at 11am in the morning whilst the deceased had arrived at around 15:00 hours. He said he had bought the accused three opaque beers and that when the accused had finished these he had consumed a drink called double punch mixed with water. He himself had fallen asleep at around 18:00 hours whilst the accused whilst still drinking his double punch.

However, he had still been awake when the deceased and Tatenda Gwata, the first witness, had eaten their meal. He had observed the accused talking to the deceased but said he had not heard what the conversation had been about but the tone had been cordial. He said he had been awoken suddenly by glass shards falling on him when a bottle hit the accused. He had seen the accused head butting the deceased and had grabbed the accused who shook himself free and jumped over the counter and continued beating the deceased. He had followed him and dragged him from there and the accused had started beating him until he fell against some crates alongside the wall. He said he had managed to pull the accused outside but the latter had rushed back in again.

This corroborated Tatenda Gwata's evidence that there had been efforts to restrain the accused from assaulting the deceased save to say that she had said it was the accused who managed to push this witness outside whilst the witness said it was him who pushed the accused outside. This was not material since no two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.

The crucial point on which there was consensus was the clear effort to restrain the accused.

Further corroborated was Tatenda Gwata's evidence that the deceased had sought shelter behind one of the patrons and that the deceased had not been holding any beer bottle fragment at that time.

As this witness was about to return inside he had observed the accused putting something in his bag and walking away.

His view was that the deceased was not a violent person and that if any provocation had taken place it was likely to have been the accused who had provoked the deceased as he had witnessed the two talking nicely before.

He further corroborated the first witness's evidence that on that day the deceased was definitely not drinking at the very least up to the point he fell asleep. He told the court that he had known the accused for over a year and that he had at least three girlfriends at the same time....,.

The Accused's evidence

The accused then gave his evidence.

He could not remember what time he had arrived at the bottle store as he had no watch. He surmised it was in the afternoon around 14:00. He confirmed that he was drinking beer bought by Kabanga Muyambo and not by himself. He could also not recall what time the deceased had entered the bottle store save that she had arrived when he was already there. His evidence was that the deceased had come to the counter where he was and they had started talking and drinking together. It was whilst they were talking that the deceased had stated that she wanted to sleep with him for a small fee. He had told her he had no money but she had been persistent.

According to him, the deceased had then hurled insults at him calling him useless and a pauper and had then poked him on his forehead with her finger. She had used profanities and had even slapped the accused after uttering the profanities. He had become angry at the insults and had slapped her and grabbed her head and butted her. That is also when she had hit him with a bottle.

He said she had continued uttering profanities and had come after him with a broken bottle. That was when Kabanga Muyambo got hold of him but he had shaken him loose. The deceased was by now behind one of the patrons but was still trying to advance to him with a broken bottle. He had taken out the knife to scare her from using the bottle and had intended to strike her on the arm. He had stabbed her in the stomach instead when he thought he had stabbed her in the arm. He had the knife on him because he had intended to go hunting....,.

The accused also relied on self defence in that he was in fact the one protecting himself from being attacked by the deceased with a broken bottle. The elements of self defence are:

(a) An unlawful attack;

(b) Upon the accused or upon a third party where the accused intervenes to protect that third party;

(c) The attack must have commenced or be imminent;

(d) The action taken must be necessary to avert the attack;

(e) The means used to avert the attack must be reasonable.

See S v Mabvumbe HH39-16 and S v Muchairi HB12-15....,.

The self-defence argument equally fails to hold.

We found the evidence by Tatenda Gwata and Kabanga Muyambo that there had been efforts to get the accused to stop his assault on the deceased by taking him outside to be credible. At the time that he stabbed the deceased, there was no unlawful attack upon the accused that was imminent and from which he needed to protect himself.

We also found their evidence credible that the deceased was, at that time, no longer armed with a bottle.

We also found Kabanga Muyambo's evidence credible that when he woke up to the bottle shards, and observed the deceased fighting the accused behind the counter, she was now at that time merely using her hands, defending herself and simply trying to shake off the accused. In other words, the bottle incident had passed which, in any event, the evidence showed, had been instigated by the accused head butting of the deceased. Indeed, if she had still been holding a broken bottle piece at the time of the stabbing, then the reasonable reaction of the man she stood behind would have been to face her in an effort to get her to drop the bottle.

The deceased's position behind this man suggests, in every sense, that she was in a protective as opposed to a combative position. The accused was therefore clearly not in any immediate danger at the time that he stabbed the deceased.