Defence of Person, Self Defence, Private Defence, Defence of Property and the Defence of Necessity re: Approach

HH206-18 : THE STATE vs ROBERT TEVEDZAYI
Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

The accused, Robert Tevedzayi, is charged with the murder of his wife, Abigail Chindavata. She was a mother to his five sons. She was only 36 years old.

The two had been married for about fifteen years. Her husband is alleged to have assaulted her to death using a hoe, an axe, and a metal bar in their bedroom on the night of 12th-13th of March 2017. The incident happened at Village 3 Maryland Farm Compound, Macheke.

He pleaded not guilty to the charge.

In two sentences, he provided his Defence Outline. He had walked into the house and had seen his wife with a lover. The lover and his wife had started attacking him, and, in self-defence, he resisted the attack. During the course of the trial he further added intoxication to his line of defence.

In addition, his far lengthier warned and cautioned statement was also before the court as exhibit 2.

The post-mortem report by Dr Javangwe was admitted in evidence as exhibit No.1. It gave a detailed description of the injuries that had been inflicted and concluded that she had died of severe head injury consistent with mixed blunt/sharp objects. She also had face injuries. One of her ears, according to the report, had been hacked off.

The evidence of her friend, Dainah Matyora, who had attended the scene after the fatal attack, as well as that of the Investigation Officer Panganayi Chando, who attended the crime scene, was not in dispute and was admitted in evidence in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The warned and cautioned statement is vital especially since the accused person sought to depart from some of its material content. It was made and signed on the 21st of March 2017 and confirmed the following day before a Magistrate.

It gave a vivid and chilling account of what transpired on that fateful night. The chain of events had begun on Friday the 11th of March 2017, when the couple had gone to Craiglea Clinic for treatment for a sexually transmitted disease. This was at the accused's behest. He had been advised to buy two injections, one for each of them. His wife had also been given some tablets.

When they arrived home, his wife had proceeded to the local Chairperson's residence. His explanation is that she had done so because she knew that she was the one who had given him the sexually transmitted disease. According to him, his wife had also gone to the police the following morning to report the domestic dispute and had returned home later that Saturday afternoon.

In a bid to look for money to buy the two injections on that same day, the accused had gone to Durlstone Farm where he now normally stayed. He too had returned around 3pm in the afternoon without success. He had told his wife that he had failed to get money to which she had replied that it was his own problem as she had merely accompanied him to the clinic and that he was the one who was sick.

This had enraged him because he was unable to have sexual intercourse with any other woman other than his wife as his wife had “sexually locked” him.

He averred, in his statement, that, as a result, he had not slept with anyone but his wife. As such, this had convinced him that she was the vector of the disease he was suffering from.

A dispute had ensued as a result of her perceived lack of sympathy for his plight. He had enquired where she had slept the previous night and she had told him that she had proceeded to the Chairperson's home. She had also told him that the police wanted them to come to the station that coming Monday as she had also gone there. She had then said that she was no longer interested in going to the police on Monday.

The accused described, in his statement, how, at that point, he had assaulted her by slapping her. She had grasped him by the throat. He had overpowered her and had picked up a hoe which was in the house and had briefly assaulted her with it. She had managed to grab the hoe. He had then picked up a small axe which was also in the house and had effected blows on her face and the head. He could not remember how many blows. He had only stopped assaulting and hacking her with the axe when she fell to ground. Thereafter, he had picked up a metal bar which was also in the house and had further bludgeoned her with it on the face and head. He could not remember how many times. According to him, he had only put down the metal bar when he could hear no more cries and he could see she was limp.

In sum, the full nature of the attack on his wife, according to his warned and cautioned statement, was that he had started off by assaulting her with his bare hands, proceeded thereafter to using a hoe, before escalating the attack to using an axe and concluding, for final measure, with a metal bar. Thereafter he had left the house and had left her lying down. He said he did not know she was dead. He had gone to Durlston Farm where he normally stayed. On arrival, he had tried to kill himself by taking a tobacco pesticide. When people came that afternoon they had found him vomiting and had taken him to hospital.

The metal bar was admitted in evidence as exhibit no.3 whilst the axe was admitted as exhibit no 4. The certificate of weights of both these items was admitted as exhibit no.5. The metal bar weighed 12.90kgs and measured 86cm by 9.5cm width. The small wooden axe weighed 0.58kgs and the wooden handle was 60cm in length.

The Evidence

The accused's minor son, and a Form 3 pupil, who shall be referred to as X, gave evidence. He is the eldest in a family of five boys. He told the court that his father, who was in fact not staying with them, having moved out some months earlier, had come home on the 12th. He was staying at Durlston Farm and would come occasionally. That day, they had eaten and had gone to bed at around 8pm. His younger brother and he were sleeping in one room, whilst two other younger siblings, aged 5 and 2 and a half years at the time, were in the same room and the accused and their deceased mother.

He had been awoken in the early hours by his mother's piercing screams asking him to open the door. She was saying she was being injured. His younger brother, who was with him, had also woken up, whilst he himself had jumped out of the window to try and alert neighbours. His brother had followed. He had tried to call one neighbour who had refused to come on the grounds that he did not get along with the accused. He had managed to find another neighbour, Aaron Simbarashe Chiwara, whom he referred to as Simbarashe, who had agreed to come. Simbarashe had tried to intervene but had been threatened by the accused who held something in his hand although he had said he could not see what it was. They had proceeded back to Simbarashe's house who had then suggested that the two brothers go back home but they had refused, being too afraid to do so.

He told the court that they were always running away from home because of their parent's altercations. When Aaron Simbarashe Chiwara refused to accompany them again, they had proceeded to go and wake up a Mrs Chirombo. She had told them to go and sleep with her son and that they could go home in the morning.

In the small hours of the morning, they had woken up to go home. On their way there they had been met by their younger five year old sibling whom he instructed to ask for fire to light the room. The witness had proceeded to his mother's room and had observed her footsteps at the door. He had called out her name. There had been a deathly silence. He had immediately gone to call a woman called Mai Misheck (Dainah Matyora) and had alerted her that his mother was not answering to his calls. She had brought a torch with her as it was still dark and the boys had followed closely behind her. She had gone in and had immediately seen blood on the deceased's head and had started crying. She had immediately sent them to call one Chijoto who had then brought the police.

In cross examination, he told the court that he had heard his father telling his mother to sit down. He had also heard her cry out that she was being injured.

Asked by the court to clarify the nature of altercations his parents always had, he told the court that they would fight over the accused's failure to provide for the family. Sometimes his mother would go to his workplace to get food. He further told the court that at one time they had left home with their mother and the accused had followed them and assaulted her. On another occasion, the accused had rolled up some tobacco using their exercise books and he had beaten their mother when she reprimanded him. He also confirmed to the court that there had not been any other adult man at the house that night besides his father. He had only heard his mother and father.

The second witness was Simbarashe Chiwara, the neighbour who had come out to try and assist that night.

He described how the accused's son had come knocking vigorously on his door at around 2am whilst calling out that his father was assaulting his mother. He had immediately woken up and had proceeded to the house with X's younger brother whilst telling X to go and alert others. He told the court that he had tried to open the door but it was locked from inside. They had managed to push it slightly and it was at that point that the accused had come to the door armed with a metal bar. He had heard the deceased apparently asking for forgiveness.

The following morning he had been woken up by Mai Misheck's screams. He had rushed there and had seen the deceased lying on the ground and beside her was her youngest child - a toddler. He had observed that the walls were bloodied from the attack on the deceased.

He too corroborated the history of violence and said that it was not the first time that neighbours had been called upon to assist in resolving a dispute. He told the court that the deceased and the accused had had disputes about his failure to maintain the family. He also told the court that the accused had suspicions about wife infidelity. The accused had moved out about a year earlier. On the night in question, he too had not seen anyone else at that house besides the two who were fighting.

The Defence Case

In his defence, the accused reiterated the events of the day as captured in his warned and cautioned statement about going to the clinic for treatment. However, he elaborated on the defence he had introduced in his Defence Outline, which departed from his warned and cautioned statement.

There had indeed been a misunderstanding with his wife that night after supper over her refusal to co-operate about going to seek medication the following day. Angry about it, he had left to go to where he was now normally staying. He had stopped at a bar to ease his mood. He had however returned home when he realized that he had forgotten his clinic cards. He had walked into the house and had seen his wife with a lover. The two had, according to him, started attacking him. He had fallen down and his wife had grabbed him by the testicles. He had not seen the male assailant clearly but had fought both of them. The assailant had managed to bolt. It was then that he had picked up what he thought was a stick but was in fact an axe and started assaulting his wife on what he thought were her shoulders, but was in fact her head, in an endeavour to get her to let go of her grip to his private parts.

He told the court that he had previously heard of his wife's infidelity from the children but had not caught her....,.

The accused relied on...,. self defence arising from the fact that he was defending himself from an attack by his wife and her lover....,.

In terms of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) self-defence and defence of another can be a complete defence where an unlawful attack had commenced or was imminent, or, where the accused believed, on reasonable grounds, that the unlawful attack had commenced or was imminent. Other conditions must be fulfilled. The conduct must be necessary to avert the attack or the accused must believe as such and that they could not otherwise escape from or avert the attack. The means used to avert the unlawful attack must be reasonable in all the circumstances....,.

As regards self-defence, the evidence of the witnesses was important. X, the son who gave evidence, was very clear that there was no other adult person that night besides his parents when the violence occurred. The persons in the house that night were the witness's parents, himself and three other siblings. The fourth sibling was staying with his maternal grandmother at her rural home.

The accused also did not mention that he had been defending himself from anyone when he gave his warned and cautioned statement. If this had been the case, the gist of his lengthy statement would have been on this precipitating factor as the material cause of the violence.

The fact that the door was locked from inside does not corroborate the evidence of the accused that there was a man in the house that night. We do not believe his version that he left the house at all that night and that on his return to pick forgotten items he had then stumbled on a lover who engaged him in battle.

His added motive, which he presented only at the trial, being that he acted in self-defence against an assault by his wife and her lover, was clearly an afterthought.

It was far from being clear how the lover was said to have gotten out of the house that night since the house was locked from inside. The accused did not mention re-bolting the door at any point – something he forgot to do because he was making up his version as the trial unfolded.

The only person armed that night was the accused.

His explanation that he omitted to mention the fact of the lover in his warned and cautioned statement because he was afraid to contradict what the police had told him to say, is simply unbelievable.

There was no allegation from him that the confirmation procedure had not been properly followed. In fact, he admitted that when his statement was confirmed he was asked whether he was making the statement freely and voluntarily and that he told the court that it indeed was a freely made statement.

His defence that his wife was also squeezing his testicles is equally unconvincing.

His hands were free enough to get hold of an axe and then a metal bar and he could just as easily have used them to loosen her grip.

In any event, this version of events was again made up as the trial unfolded.

In his warned statement he had claimed that she had held him by the throat. We are in agreement with the State that the defence of self-defence, as a whole, is merely calculated to send the court on a wild goose chase. He was clearly in charge that night blaming his wife as a vector of disease and seemingly oblivious to the contradictions in his own statements that he was chaste.

How else did he discover his purported inability to sleep with women unless he had tried to sleep with droves of them?

By shifting blame, he merely hoped to get away from the consequences of his actions. It is easy for the accused to spin a version of events designed to ensure that the deceased was at fault for what happened to her; yet, as courts know only too well, there are always two sides to a story.

The accused's narrative about what happened that night was, from the onset, an incomplete one as the victim was dead. It was therefore a narrative told only by the accused as regards the causes behind the fight that day. This story, that he found her with a man, appears to be simply a continuation of his assault and vilification of her - even in her grave. As if mutilating her body was not enough, the accused simply resorted to mutilating her honour from a conviction, most likely from months of prison-talk among inmates, that an explanation that he acted in self-defence would exonerate him.

The defence of self defence against an attack by a phantom boyfriend is a fantasy of his imagination and cannot succeed.

HH233-16 : THE STATE vs BRIGHTON MUKWACHA
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and CHAGUGUDZA

The accused, whilst he pleaded guilty, did not really have a choice. The facts were clear that he acted out of proportion to the assault perpetrated upon him.Section 254 of the Criminal Law (Codification Reform) Act [Chapter 9:23] is very clear that where a person purporting to act in self ...

HB201-15 : THE STATE vs ROBERT NYONI
Ruled By: MAKONESE J

The accused, though provoked, retaliated in a manner that was disproportionate to the provocation. He struck the accused with a dangerous object on a sensitive part of the body.The injuries reflected on the postmortem report reveal that excessive force was used. A single blow to the head, below the ear, ...

HMT16-18 : THE STATE vs CHARLES HOFISI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and RAJA

This is a case in which the accused is charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] hereafter referred to as the Criminal Code.

The State alleges that at Makweza Village, Chipinge, on 16 October 2017, the accused unlawfully and intentionally caused the death of Charles Khosa by stabbing him with a single scissors blade in the neck intending to kill him and realising that there was real risk or possibility that his conduct may cause death but continued to engage in that conduct notwithstanding.

The accused pleaded not guilty to the charge emphasizing that he had no intention to cause the death of the deceased, and, that he did not realize his conduct would cause the death of the deceased.

The accused further averred that he was drunk on the fateful day and that the deceased provoked him when he assaulted the accused with open hands and booted feet.

It is apparent that the accused and the deceased had an altercation after partaking of home brewed beer commonly known as '7 days'; a name derived from the number of days taken from brewing of the beer to actually serving when ready. The beer drink was at the accused's mother's place and the accused's mother was selling the beer.

It is a fact that the accused stabbed the deceased with one scissors blade produced in court. The stabbing by the accused occasioned injuries from which the deceased bled and passed on.

A postmortem report, exhibit 2, was tendered by consent. Therein, Dr Stephen Mbiri confirmed the deceased was injured in the neck and that the cause of death was hypovolemic shock secondary (2^o) to severe haemorrhage due to bleeding from a perforated left carotid artery.

Most of the facts are common cause.

In this case, the court is only to consider, closely, the circumstances of the attack on the deceased given the defences of provocation and intoxication raised.

It is this close analysis which will then assist the court in determining the single issue identified in this case. The issue being whether or not, given the alleged provocation and intoxication, the accused had the intention to kill the deceased or realised that his conduct might cause the deceased's death.

Although none of the witnesses gave an account of witnessing the actual stabbing, the mother of the accused, and other witnesses, rushed to the scene to investigate upon hearing screams that the accused had injured the deceased. The accused only fled, while holding the scissors blade, after witnesses had seen him.

He accepted having stabbed the deceased using the scissors blade which was tendered as exhibit 5 by consent.

Five of the State witnesses' evidence was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The evidence was on common cause aspects.

Three witnesses gave oral evidence, again, on common cause aspects, as will be discussed below, when we revisit each witness's account of what they observed.

Jennifer Sithole's evidence confirmed that traditional beer was sold and drunk at her homestead until 12 midnight. She then started selling again in the morning around 08:00 hours, and, by mid-morning, when Nyokase Muyambo arrived, the beer was almost sold out.

The witness was positive that both the accused and the deceased were at the beer drink although she was non-committal on whether or not she had seen the accused drink and also she could not comment on the accused's state of sobriety.

The witness, on retiring to rest, after selling and drinking beer, was roused by voices stating that the accused had stabbed the deceased. She went out to investigate and observed the deceased bleeding profusely from the neck as blood gushed out. According to the witness she did not at any time hear or observe the accused and the deceased quarrel. She wondered why the deceased had been stabbed.

The witness identified the murder weapon produced in court, the scissors blade, as the one she observed at the scene and the one which the accused had used to stab the deceased.

The witness was reluctant to pin point whether or not the accused drank beer and was even non-committal of his whereabouts and doings. She only retorted he was somewhere there in the campus.

We took this stance, of being economical with detail, to have been occasioned by the obvious relationship of mother and child. The fear of implicating her own flesh and blood. The witness's evidence, on common cause aspects, of there having been a beer drink and the deceased having been stabbed by the accused was straight forward.

Nyokase Muyambo, an aunt to the last witness, who, for the larger part of the testimony, referred to herself as the mother of the last witness, Jennifer Sithole, and, Jennifer Sithole equally referred to her as mother revealed she was not the natural mother of the witness.

This did not cloud her testimony in any manner given the African custom of interaction in the extended family.

Nyokase Muyambo arrived at the beer drink when the beer had been sold out. She was given a small quantity of beer to drink and she sat down whiling up time. According to the witness, the deceased was close by, quiet and very drunk. The witness told the court that the accused was also drunk walking about aimlessly. She was surprised when the accused furtively stabbed the unsuspecting deceased and fled from the scene.

The witness was steadfast that there was no quarrel and exchange of harsh words before the stabbing occurred. She vehemently denied ever seeing the deceased attack or provoke the accused in any manner. The deceased was seated within her reach. If the two had argued, she could have heard.

The deceased's mother, Jennifer Sithole, made it clear, in her testimony, that she gave the deceased, whom she regarded as a nephew, beer the first night of sale and also on the morning the beer was finally sold out as reward for the help he gave in sieving the opaque beer. There was no mention that she also gave the accused free beer.

This could probably explain the ambush and attack on the deceased who was drunk and seated. We can only surmise that the fact that the accused was not given free beer while the deceased received free beer from the accused's mother could have caused jealousy and angered the accused.

Whatever the reason, it is not in dispute that the accused furtively stabbed the deceased in the neck leading to the fatal consequences.

Shadreck Pachawo, a sergeant with the Zimbabwe Republic Police's testimony was for purposes of production of the recovered murder weapon. Nothing arises from his clear testimony - even the accused admitted that the murder weapon tendered was the one he had used to attack the deceased....,.

The accused suggested having been earlier attacked with open hands and booted feet by the heavily drunk deceased; again, no one else corroborates this version. Further, there is no evidence to show loss of self-control.

The drunken state of the deceased could not pose any danger to the accused. The accused, in a skirting and scanty manner, sought to paint a picture that he was defending himself.

The accused correctly did not pursue this defence for certainly he was under no attack; and, even if he had been struck with open hands, the use of a scissors blade on the neck was clearly unreasonable and disproportionate to any contemplated attack on him.

The defence of self-defence cannot be sustained as requirements have not been met. In any event, there was no unlawful attack which the accused would have been defending. It remains the accused stabbed an unsuspecting drunk deceased. See S v Mudenda HB66-15 were it was stressed that all requirements must be established for the defence of self defence to be available.

The court stated:

“The accused must show that there was an imminent attack. He must establish that the action taken to defend himself was reasonable.”

HB175-18 : THE STATE vs STEVEN TSHUMA
Ruled By: MATHONSI J

At the time Pedzisai Mpofu met his death, on 11 December 2017, at Bazha Business Centre under Chief Malaki Masuku in Matobo, Matabeleland South, he was 36 years old. He was the victim of an okapi knife attack, the stabbing being directed to his back and right side of the neck. It killed him instantly.

The then 30 year old accused person has been charged with the murder of the deceased in contravention of section 47(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]; it being alleged that he is the one who stabbed the deceased once on the back and once on the right side of the neck intending to kill him or realizing that there was a risk or possibility that his conduct may cause death but continued engaging in it.

The accused pleaded not guilty to the charge and gave a version in his Defence Outline which is diametrically different from that presented by the State. He put in issue all the allegations made by the State.

According to him, on the day in question, he arrived at Bazha Business Centre from Bulawayo, at about 1700 hours, and entered into Bazha Store intending to buy candles. He observed the deceased and Marvellous Tshuma consuming alcohol and the deceased was visibly drunk as he immediately started insulting him.

The deceased approached him scolding him and making remarks to the effect that he, the deceased, was having an affair with the accused's wife. Although the accused initially ignored the deceased's insults, telling the deceased to leave him alone, the deceased would not relent. He pulled out an okapi knife which he used to stab the accused in the hand causing him to fall down writhing in agony.

The accused stated, further, that although he had sustained a stab wound on the hand and had fallen down, he was able to grab the deceased's hand and disarm him of the okapi knife. He used the same knife, in defence of his person, to stab the deceased on the back of the shoulder.

After stabbing the deceased on the shoulder the accused says he ran away fearing for his life.

As he walked towards his homestead, somehow, he met the deceased again. This time, the deceased had armed himself with an iron bar which he threw at him hitting him on the ribs thereby inflicting excruciating pain, and, again, causing the accused to fall to the ground. As the deceased charged at him intending to inflict more pain to him, the accused says he gathered strength and withdrew the same knife he had snatched from the deceased earlier on which he again used to stab the deceased on the neck but in self defence. The deceased then ran towards the clinic but collapsed to the ground.

The accused says he managed to limp his way back to the Business Centre where he reported the matter to a policeman by the name of Mutisi who took him to the police base where he was later arrested and detained in cells.

According to the accused, the State witness, Robert Moyo, who is his own uncle, was not present at the scene but has fabricated evidence against him because he has a long-standing grudge against his family. Robert Moyo is using this case in order to fix him.

As shall become apparent later, Robert Moyo was not the only eye witness.

The accused relies on defence of person to ward off the charge leveled against him.

In order to succeed, the accused must satisfy the requirements of that defence set out in section 253 of the Criminal Law Code [Chapter 9:23]. It provides:

“(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 and 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; and

(b) His 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 he or she could not otherwise escape from or avert the attack; and

(c) The means he or she used to avert the 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.”

Subsection (2) of section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] requires the court determining whether these requirements have been met to take into account the circumstances in which the accused person found himself or herself in including any knowledge or capability the accused person may have had including any stress or fear operating on his or her mind at the time.

The question which arises is whether the accused was under any unlawful attack at the time that he stabbed the deceased twice, once on the back and once on the right side of the neck, inflicting fatal wounds.

Let me begin by making the critical point that defence of person or what is collectively referred to as “private defence” in Criminal Law, has evolved out of public policy considerations. Natural reason permits a person to defend himself or herself against danger. The following passage in JONATHAN BURCHELL's book, South African Criminal Law and Procedure, Vol 1, 4th ed, Juta, Cape Town, 2011, is apposite:

“A person who is a victim of an unlawful attack upon person, property or another recognized legal interest may resort to reasonable force to repel such attack. Any harm or damage inflicted upon the aggressor, in the course of such private defence, is not unlawful.

As a general rule, the law does not permit persons to resort to force or violence to protect their interests, expecting that they will invoke the protection of the law and the agencies of law enforcement for this purpose. To allow otherwise would be to permit and condone private vengeance, retaliation, and other forms of self-help to the detriment of peace, good order and the rule of law.

However, it is not always possible for the State, through the police and the courts of law, to provide the immediate and necessary protection due to every citizen with respect to their legal rights and interests. In such circumstances it is that individual's inherent right, 'accepted by all law, both natural as well as civil' to resort to private defence. In doing so, the citizen acts for the State and thus his or her actions are necessarily lawful.

Although allowing this right to the citizen, society must carefully limit its ambit.”

It is for the purpose of limiting the ambit of the defence that section 253(1) of the Criminal Law (Codification and Reform) Act makes it available as a complete defence to only an accused person who was under an unlawful attack.

Even where the accused person was under an unlawful attack, certain essentials must still be satisfied before the defence is availed;

The unlawful attack must have commenced or was imminent.

What this means is that fear alone is insufficient to justify a defence as there must be an actual or imminent attack upon the accused person in a case such as the present.

When referring to the imminence of the attack, the law draws the line that the defence cannot be resorted to where the accused person has the time or opportunity to seek other forms of protection like fleeing. The attack must be immediately about to begin in order for it to be imminent.

Regarding the means used to avert the attack, the law requires that they be reasonable in all the circumstances and should not be disproportionate to the harm sought to be averted.

An accused person facing an un-armed aggressor, or one wielding a small switch, cannot pull out an okapi knife and use it to stab the aggressor as a means to avert the attack.

I have had to discuss the law relating to defence of person in order to demonstrate that this is not a defence available to any accused person who has nothing better to say.

The difficulty confronting the accused in this case is that we have eye-witness accounts of what transpired at Bazha Business Centre immediately before the deceased met his violent death. In that regard, I must express my concern at what appears to have been an attempt by State witnesses to assist the accused person evade the consequences of his actions.

If one looks at the State summary, there are two witnesses, namely, Robert Moyo and Marvellous Tshuma, who were present inside Zamangothando Bottle Store when the accused entered and an altercation started between him and the deceased. At the trial, Marvellous Tshuma did not come to testify at all and a summary of his evidence had to be expunged from the record. It means that the court has to close its eyes to that evidence.

Robert Moyo did appear in court and gave evidence. However, his evidence is now substantially different from that summarized in the State Summary.

Suddenly, Robert Moyo was not present inside Zamangothando Bottle Store when the fight erupted. He told the court that, instead, he was seated outside Adams Cocktail Bar when he saw the deceased coming from Zamangothando Bottle Store. He was walking fast, not running, while holding his T/Shirt in his hand.

When he got close to the witness, the deceased muttered something to the effect that he had been stabbed, and was indeed bleeding from a wound at the back. Although Robert Moyo says he asked the deceased, twice, as to who had stabbed him the deceased did not respond.

The witness says he then went inside the cocktail bar and reported to a police officer, Trymore Tinashe Mutisi, that someone had been stabbed and together they went outside to attend the scene. It is then that he observed the deceased and the accused dashing towards the clinic.

As they were about to get to the road, Robert Moyo observed the accused lunge at the deceased and stabbing him on the neck “on the throat part.” By the time the witness, who says he had to mount his bicycle to get to the scene, a short distance away, arrived at the scene, the deceased had fallen to the ground and was dying. The accused was escaping, forcing the police officer to chase after him. He was apprehended.

I think Robert Moyo and the entire village community of Bazha should hang their heads in shame for daring to assist a person who committed a heinous crime at a Business Centre in broad daylight by trying to suppress the evidence.

I say so because the attack on the deceased must have been witnessed by a lot of people - most of whom did not see the need to come and assist the court dispense justice.

Robert Moyo, who is a fairly old man who should have wisdom, is testimony to the saying that at times old age does not come with wisdom, but may come strolling alone.

The fact is that even by the accused person's own version, the deceased came out of Zamangothando Bottle Store running for dear life. He had been stabbed. The police officer, Trymore Tinashe Mutisi, who was in the company of Robert Moyo, and had been summoned by him, actually saw the accused chasing after the deceased holding an okapi knife on his right hand. It is therefore disgraceful that Robert Moyo decided to suppress the chasing aspect.

According to the post mortem report compiled by Dr S Pesanai, a pathologist at United Bulawayo Hospitals, after examining the remains of the deceased on 13 December 2017, the cause of death was haemorrhagic shock and stab wound on the neck due to assault.

The stab wound perforated the right subclavian vessels.

The doctor also observed that the stab wound on the neck had taken the direction from front to right and top to bottom. This is consistent with Robert Moyo's evidence that he saw the accused stab the deceased “by the throat part.”

The accused person's defence that he acted in self-defence clearly does not hold water.

According to him, he went into a bottle store, which, in the normal course of things, sells alcohol, to buy candles. This was despite the fact that he had just arrived from Bulawayo where he had gone to buy seed maize and would have been expected to buy his groceries in Bulawayo. He does not drink at all but still went into a bottle store where the deceased was drunk and abusive.

According to him, although the deceased was used to making disparaging remarks about his wife, Sinikiwe Moyo, claiming to be having an affair with him for 11 years, he again repeated those claims at Zamangothando Bottle store leading to a fight.

Although it is the deceased who was provocative, and, for his part, the accused kept his cool telling the deceased to leave him alone, it is, again, the deceased who withdrew a knife and stabbed him on the right hand disabling that hand. He had fallen to the floor as the deceased was bearing down on him armed with an okapi knife.

The accused says he was still able to achieve the insurmountable feat of using his left hand, he says he is left handed, to grapple with the deceased and disarm him. He then used the same okapi knife to stab the deceased, not on the front as would ordinarily happen where the aggressor is charging at you, but at the back next to the spine. The accused says that the deceased exited the bottle store running away, which is of course different from his claim in his Defence Outline that it is himself who ran away.

Denying that he chased after the deceased, as witnessed by Trymore Tinashe Mutisi, the accused says he was on his way home carrying his luggage on his head while still clutching the okapi knife in one of his hands, when he somehow met the deceased who was by then armed with an iron bar - never mind that the deceased had in fact taken flight after being stabbed in the back. The deceased threw the iron bar at him from a distance of about six (6) paces hitting him in the rib cage and causing him to fall. The deceased still charged at him while on the ground and pressed him to the ground.

Even though the accused was in that position of disadvantage, he says he still managed to stab the deceased in the neck in self-defence inflicting a wound which took a front to back, left to right and top to bottom trajectory as observed by the pathologist.

That kind of story only exists in the world of fiction. I reject it as demonstrably false.

The accused's own relative, Robert Moyo, who I have already said tried desperately to protect the accused by suppressing part of the evidence, saw the accused stabbing the deceased on the neck. Trymore Tinashe Mutisi saw him chasing after the deceased wielding an okapi knife produced in court as exhibit 5.

Clearly, the accused was under no attack of whatever nature. It was not imminent and was not going to commence.

He was simply an aggressor who preyed on a drunk person armed with a lethal okapi knife. He directed his blow to an extremely vulnerable part of the human body, the neck by the throat, fatally cutting blood vessels.

He knew what he was doing.

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The deceased, Nestai Ncube, was employed as a lecturer at the Midlands State University at the time she met her death. She was 48 years old. She had been married to the accused since 2001 and resided at their matrimonial home at 33 Wentworth Road, Southdowns, Gweru.

The accused, who is aged 63, is facing a charge of murder; it being alleged, that, during the early hours of 27 February 2016, the accused armed himself with a home-made mattock and struck the deceased with it on the head three times. As a result, the deceased sustained three deep wounds in the head, leading to her death.

The accused pleads not guilty to the charge, and, in his defence, avers that he acted in self defence as he was under imminent attack from the deceased.

The bulk of the evidence in this matter is common cause or at least not in dispute. It shall not be necessary to repeat the contents of the State Outline which has been tendered into the record of proceedings and now forms part of the record as exhibit 1.

The Defence Outline was tendered as exhibit 2.

In brief, the accused's defence was, that, prior to this fateful day, the accused had established that the deceased was engaged in an extra-marital affair with one Prosper Maburo. The accused had confronted the deceased's lover who admitted the illicit relationship and promised to terminate the affair.

This did not happen.

In a desperate attempt to save his marriage, the accused had roped in the assistance of two pastors from the Seventh Day Adventist Church, one Xmas Mutero and Artwell Tapera, to counsel the deceased and persuade her to end the relationship.

On the night of 26 February 2016, the two pastors visited the deceased at her matrimonial home and held lengthy discussions with the deceased. At the end of these discussions, the deceased said she needed more time to consider the issue.

The accused avers, that, following this discussion he retired to bed around 9pm. The deceased said she was going to the kitchen to wash dishes.

The accused states, that, he did not notice the time the deceased came to the bedroom. He states that around 2am the following morning the deceased woke up and left the bedroom going to the toilet. When she returned, she was in possession of a home-made mattock (exhibit 5) which she swung at him while he lay in bed.

The accused managed to wrestle the deceased and dispossessed her of the weapon.

The accused then struck the deceased three times in the head as she tried to get up from the bed where she had fallen. The deceased fell down and never got up again thereafter.

She had been fatally injured.

The accused locked the house and the outer gate to the premises and drove off to Sanyathi where he later handed himself to the police.

The accused avers that he had no intention to kill the deceased but acted in self-defence at the spur of the moment and did not have time to rationalize things but had taken immediate defensive measures.

The State tendered the accused's confirmed warned and cautioned statement (exhibit 3) recorded at Gweru on 1 March 2016. In this statement, the accused gave his response to the allegations as follows:

“On the night of Friday 26th February 2016, Pastors Tapera and Mutero had held discussions with Nestai Ncube on the marital problems between myself and Nestai Ncube as I was emotionally stressed. These related to her affair with Prosper Maburo which had been going on for quite some time resulting in her not coming home sometimes and to my former wife, Grace Muchadenyika, whom she thought I was having an affair with and she indicated that she was bitter.

Nestai Ncube needed time to consider the request that she lets go off the bitterness (sic) and vengefulness.

Early Saturday, around 0200 or 0300 hours, Nestai Ncube woke up to visit the toilet, and, after quite a long time, she came back; and, as I looked through the bedroom door, I noticed that she was holding an object. On entering the bedroom she proceeded to where I slept and swung the object intending to strike me.

We wrestled and I managed to get the weapon and struck her and she groaned.

I left home thereafter fearing for my life as my brothers-in-law were known to be violent.

Later, I phoned Xmas Mutero to go and check Nestai Ncube's condition and possibly take her to hospital. I proceeded to Sanyathi to brief my mother and relatives on the matter, and I voluntarily handed myself over to the police at Sanyathi Police Station.

It was never my intention to cause the death of Nestai Ncube.”

After recording the accused's response to the charge, the accused was asked further questions relating to his defence, and two of those questions were as follows:

“Q. When you struck Nestai Ncube where was she?

A. She was on the bed after she had fallen on the bed when I was trying to take the object from her….,.

Q. How many times did you strike her, and on which part of the body?

A. Three times, around the neck area.”

It is important to note, that, the accused stuck to his defence throughout the trial and did not depart from his Defence Outline in material respects when he gave viva voce evidence.

The State tendered the post mortem report as exhibit 4.

The postmortem report was prepared by Dr Ivian Betancourt following an examination on the remains of the deceased at United Bulawayo Hospitals on 29 February 2016.

The pathologist concluded that the cause of death was:

(a) Severe cerebral damage;

(b) Subdural haematoma, skull bones fractures;

(c) Severe head trauma due to unknown object;

On marks of violence, the report indicates the following injuries:

(1) Sutured wound, 10cm, on the middle frontal region;

(2) Sutured wound, 12cm, on the right temporal and parietal region;

(3) Sutured wound, 3cm, on the back of right ear;

(4) Abrasion (one circular abrasions) on the left scapular region;

(5) Swollen both eyelids, marked on the right eyelid;

The post-mortem further reveals the following injuries on the skull:

(1) Subgaleal haematoma on the frontal and both parietal areas and occipital region;

(2) Skull bones fractures (multiple) localized in frontal region (complete frontal region) and another big stellate fracture with bone fragments localized in right temporal and parietal region;

(3) Sortie of encephalic mass and severe brain damage;

(4) Big right subdural haematoma through the right skull fracture seen;

The State produced the murder weapon; a home-made mattock, as exhibit 5, and a visual observation of the weapon reflects that it is a garden tool shaped like a pick axe, with blunt edges on both sides. The mattock has a handle 89cm long; its blade is 23cm long; and it weighs 2.6kg.

The State, with the consent of the defence counsel, introduced the summary of the evidence of the following State witnesses as it appears in the State Outline by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07), namely;

(a) Xmas Mutero;

(b) Nixion Mupasiri;

(c) Osbert Jere;

(d) Prisca Mbwende;

(e) Conrad Ngungu;

(f) Detective Sergeant Mushura;

(g) Detective Sergeant Sakala;

(h) Dr I. Betancourt;

The State opened its case by leading oral testimony from its sole witness Constance Chirigo.

This witness testified that she is employed at Gweru Provincial Hospital as a nurse. She has nine years nursing experience and she was on duty on 27 February 2016, in the casualty ward, when the deceased was brought to the hospital in an ambulance. The witness pushed the patient on the stretcher into the resuscitation room.

The deceased was badly injured and was not able to talk.

She observed two deep wounds, one near the forehead, and the other at the back of the head. The deceased was bleeding profusely from these injuries. The doctor on duty was called to attend to the patient. The wounds were sutured and she was transferred to the female surgical ward for further treatment and care.

The witness's evidence was not challenged by defence counsel as it was essentially common cause.

The State closed its case at that stage.

The accused opened the defence case by giving viva voce evidence under oath.

To a large extent, the accused adhered to his Defence Outline and maintained that he acted in self defence.

The accused narrated, in detail, how he had tried to restrain the deceased from engaging in an adulterous relationship with one Prosper Maburo. He testified that he had confronted his wife's lover at his workplace and warned him not to continue his relationship with the deceased. The deceased's lover promised to discuss the matter with the deceased and thereafter give him feedback.

The accused stated that he got the impression that the affair had persisted as his wife continued to come home late, and, in certain cases, did not come back home at all.

This prompted the accused to solicit the assistance of Xmas Mutero and Artwell Tapera, two pastors from the Seventh Day Adventist Church (SDA Church). The two arrived at the accused's matrimonial home on 26 February 2016 and held a lengthy discussion with the deceased.

The accused testified, that, at the end of the meeting with the pastors, the deceased intimated that she still required more time to consider the issue.

It would seem that the failure by the deceased to undertake to put an end to the illicit affair was not taken well by the accused. It would also appear he was frustrated as he went to bed early.

The deceased meanwhile went to the kitchen to wash the dishes.

What transpired in the bedroom, in the early hours of the morning of 27 February 2016, is only known to the accused and the deceased, who is no longer alive to testify. There is no independent evidence to corroborate or rebut the accused's version of events.

The court shall, to a large degree, assess the evidence placed before it and weigh the probabilities before accepting or rejecting such evidence.

The court is mindful that the accused's version can only be rejected if it is found to be false and if it is not reasonably possibly true.

The accused's version is that he went to bed alone leaving the deceased to do the dishes. The accused stated that he believed that the deceased was only trying to find an excuse to update her lover on the outcome of her discussion with the pastors. The accused says he proceeded to sleep and did not notice at what stage the deceased came to bed.

He said that in the early hours of the fateful day, the deceased had woken up, ostensibly to visit the toilet. He said she took an unusually long time before returning to the bedroom. When she came back, and while he was lying in his bed, he observed that the deceased was holding an object in her hand.

The accused remained still, and, when the deceased was about a metre and half away he realised that she was in fact in possession of a home-made mattock (exhibit 5).

The accused said the deceased swung the mattock towards him and aimed at his chest.

The accused blocked the blow, and there was a tussle for the weapon. The accused dispossessed the deceased of the weapon, resulting in the deceased falling on the bed on her stomach.

The accused said he was seized with fear and could not accurately remember what happened thereafter.

On how he struck the deceased, the accused had this to say:

“As the two of us wrestled, I got hold of exhibit 5. I do not know what happened thereafter. What I still remember is that deceased was still trying to get up that is when I struck her with exhibit 5.”…,.

The accused then narrated that he struck the deceased at least three times, and, when he realized that the deceased was on the floor and injured, he exited the bedroom in a hurry, locked the house and the outside gate, and drove off.

The accused said he knew the deceased's brothers to be persons of violent disposition so he felt unsafe and took a decision to drive to his home in Sanyathi. He did not think it wise to report the matter at a police station in Gweru.

From the accused's own version, he struck the deceased on the head on more than one occasion as she was trying to get up from the bed.

She was no longer in possession of the mattock. He had managed to overpower the deceased and he was in a stronger position.

On the accused's own version, as she lay on the bed, after he had taken the murder weapon from her, she posed no real danger to him. The accused had evidently averted the danger by taking the mattock.

At that stage, the person who was in imminent danger was the deceased.

The accused did not choose to leave the bedroom when he had secured the weapon. He only thought of striking the deceased.

The accused accepts that he delivered at least three blows to the head in quick succession.

He testified, that, he had no time to think or rationalize things and merely took defensive measures. The accused refused to disclose the amount of force he used to inflict the injuries but readily conceded that the extent of the injuries reflected in the post mortem report is indicative of the fact that excessive force was used.

Factual findings by the Court

This court makes a specific finding, that, from the accused's own admission, he was under no imminent attack when he struck the deceased.

The accused was content to state that he was full of fear.

The accused failed to explain why he struck the deceased repeatedly when he was aware that he had already averted the danger.

Counsel for the State fairly put the position when he indicated that had it been shown that the accused introduced the mattock into the bedroom, the matter would have taken an entirely different complexion.

The court makes a finding, that, on the facts, the accused used excessive force and attacked a defenceless person indiscriminately.

The court rejects the accused's explanation, that, when he saw the deceased approaching him with a weapon he remained still in bed and did nothing.

The accused's version on this aspect is not within ordinary human experience.

In the face of danger, any normal human being will seek to confront the source of danger or run away from it.

It is clear that on this aspect the accused was not telling the truth and one would wonder what he was hiding.

Before concluding the assessment of the accused's evidence, the court observes that the demeanor of the accused in the witness stand was poor.

The accused did not answer questions put to him directly and sought to give lengthy explanations. The accused's defence counsel was so exasperated by the accused's manner of answering questions and had to caution the accused to answer the questions put to him.

One crucial observation is that the accused was free to give a detailed account of each and every event up to the moment he went to bed on 26 February 2016. The accused seems to have suffered loss of memory from the point he says he dispossessed the deceased of the murder weapon.

The accused was evidently uncomfortable to confront the gory details of his attack upon the deceased.

On the most critical aspects of this matter, the accused pretended not to remember much.

It is the court's view that the accused was very mean with the truth on his account of what happened in the bedroom. The accused, it would seem, only told the court what he wanted to disclose.

Analysis of the Law

In his book, The Guide to Zimbabwean Criminal Law, PROFESSOR G. FELTOE discusses the distinction between positive or actual intent and constructive intent or legal intent. The author characterises the distinction as follows:

Actual Intention

(a) Desires death. Death is the aim and object; or

(b) Death is not the aim and object, but, in the process of engaging in some activity, foresees death as a substantially certain result and proceeds regardless as to whether this consequence ensues.

Legal Intention

Does not mean to bring about death, but foresees it as a possibility whilst engaged in some activity regardless as to whether death ensues. The requirements are thus:

(a) Subjective foresight;

(b) As to possibility not probability;

(c) Recklessness;

These requirements are now fairly established in our law.

For the court to return a verdict of murder with actual intent, the court must be satisfied, beyond reasonable doubt, that:

(a) The accused's fixed and settled intention was to bring about the death of his victim;

(b) While pursuing another objective, he foresees the death of his victim as a substantially certain result and proceeds with his conduct recklessly.

See the case of Robert Mugwanda v The State SC19-02; The State v Herold Moyo HB19-17.

Self Defence

In our law, the law of private defence, that is, self-defence; and defence of third persons; and defence of property provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack.

Under our law, the defence has been codified, and section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] sets out the requirements for this defence:

(a) There must be an unlawful attack;

(b) The attack must be on the accused;

(c) The attack must have commenced or imminent;

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

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

The court's approach to this defence should be as objective as possible.

The court must take into account the circumstances of the victim and all the emotional pressures which the accused was subjected to. The court must assess the threat that was directed at the accused and the possibility of a fatality arising therefrom.

See the cases of The State v Nkululeko Nleya HB138-02 and Ntsoni v Minister of Law and Order 1990 (1) SA 572.

On the facts of the instant case, the following facts have been established:

(a) The accused perceived the imminent threat to be the mattock that was being wielded by the deceased;

(b) The accused succeeded in averting the danger by dispossessing the deceased of the weapon;

(c) When the accused struck the deceased, he had eliminated the danger and the deceased was lying on the bed trying to get up;

(d) When the accused struck the deceased, he had various options and could have simply exited the bedroom. He did not have to assault the deceased.

(e) The force used in striking the deceased was disproportionate in all the circumstances of the case.

Counsel for the accused fairly conceded, in my view, that he had difficulty in finding the rationality of the means used by the accused in averting the perceived danger.

He conceded that a perusal of the findings in the postmortem report reveals that the degree and extent of the injuries leads to only one conclusion - that the force used to avert the danger was exceedingly disproportionate.

The accused acted recklessly and proceeded with his conduct regardless of the consequences.

The accused's explanation for striking the deceased is that he felt afraid and believed that she might get up and wrestle for the weapon again.

This explanation is not reasonable and does not accord with common sense.

In my view, the State has managed to prove that the accused is guilty of murder with constructive intent.

He did not intend, on the evidence before us, to bring about the death of the deceased. There is, however, proof beyond reasonable doubt that the accused subjectively foresaw death as a substantial possibility when he repeatedly struck the accused on the head with a dangerous weapon.

At the material time, the accused had averted the danger. He failed to explain why it was necessary to inflict the injuries on a person who was lying on a bed. He had neutralized the danger.

We, accordingly, find the accused guilty of murder with constructive intent.

HH482-16 : THE STATE vs PHILLIP MASHAVA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

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

It is the State's contention, that, on 31 July 2015, and at Derust Farm Compound, Chipinge the accused, accompanied by Simon Puranyemba Simango, who is still at large, unlawfully and with intent to kill, assaulted Happymore Mashume with an axe and a machete on the shoulder, twice, thereby causing injuries from which the said Happymore Mashume died.

According to Dr. NR Chinhema, who examined the body, the deceased sustained cuts on the left shoulder and right wrist. The doctor observed that the cut on the shoulder was deep with exposure of blood vessels. He concluded that cause of death was hypovolaema secondary to severe acute bleeding.

The post mortem report, exhibit 1, by consent, refers.

Further, in evidence, the axe and machete were produced as exhibits. Also a pair of brown shoes, cream shirt blood-stained and yellow blood stained t-shirt.

A sketch plan drawn to scale, by Sergeant Chatiza, showing indications by the accused and witnesses; a confirmed warned and cautioned statement by the accused were also produced as exhibits.

The State also produced as exhibit 5 photographs depicting the dead body of the deceased.

This did not serve any purpose given the cause of death and the recovery of the body from the river is not in dispute as between the State and defence.

Evidence of seven (7) witnesses was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as common cause.

Five (5) witnesses, inclusive of the accused, gave oral evidence.

Sekai Mwaneka's evidence was basically to the effect, that, while she was at her home selling illicit brew (kachasu/sope) she observed the accused's wife sitting in a compromised position with the deceased. She described the posture of the two on the bench as that of the accused wife's thighs or legs on top of the deceased while the latter was inserting his hand into the skirt whose zipper was open.

Her version was similar to the accused's version in so far as the manner of sitting was concerned.

She recalled how the accused took a hosepipe and assaulted his wife with it.

This, again, conforms with the accused's version.

The witness told the court that, thereafter, the accused and his wife left for their homestead. She was not privy to what transpired there but she told the court that the accused's wife later returned and requested to put up at her house because of squabbles with her husband.

The witness's evidence was clear and to the point.

Edison Musimandoyo, a neighbor to the accused, told the court, that, on the day in question, in the evening, he heard noise at the accused's homestead. He heard the accused shout and order the deceased to go away from his homestead and he also heard the accused shout at his wife labelling her a prostitute.

He later heard the accused sharpen his axe and shout at the deceased for the latter to leave.

The witness observed Simango Puranyemba strike the deceased on the hand and the two chased one after the other via his compound.

It was getting dark and he could not clearly see, but there was some noise at the neighbor's house when he retired indoors.

The witness, who appeared terrified by the incident, spoke in low tones but there is nothing to criticize about his evidence. He did not seek to comment on what transpired behind the house as he could not see. The following day, he also witnessed the recovery of the body of the deceased from a nearby river.

Hebert Makuyana recounted events of the day in question when he passed via that witness, Edison Musimandoyo's residence while he was in the company of Puranyemba Simango.

Puranyemba Simango proceeded to the accused, his uncle's homestead, where there was some noise.

The witness, just like Edison Musimandoyo heard Puranyemba Simango inquire what was wrong from his uncle, the accused; following which he was advised the deceased had proposed love to his wife in the afternoon.

This angered Puranyemba Simango who chased after the deceased and struck him with a machete on the shoulder. They chased after each other, and, at that time Edison Musimandoyo went indoors and the witness proceeded to his place going past the accused's residence.

He observed the accused strike the deceased with an axe on the shoulder and the latter fell down.

As he passed by, going to his home, he heard the accused and Puranyemba Simango say the deceased should go away from the residence but he did not know if the latter had died.

The witness was put to task on why his observations differed from Edison Musimandoyo but he stood his ground that he initially observed while passing by Edison Musimandoyo's residence and the latter moved close as he passed by the accused's residence. The witness said it was at night but there was moonlight.

We must point out, that, the witness's evidence was on the events he observed while at Edison Musimandoyo's residence; there were no material difference from Edison Musimandoyo's version, that of Puranyemba Simango and the deceased chasing each other. The other detail he stood his ground he observed on his way past the accused's home.

In any event, the accused, in his Defence Outline and evidence in chief, even in his confirmed warned and cautioned statement, does not deny the fracas occuring.

It is the sequence of events which he sought to challenge.

In the confirmed warned and cautioned statement, the accused confirmed the State witness version that he chased the deceased away and the latter resisted then he sharpened his machete and axe and that his nephew, Puranyemba Simango, joined in.

The State also adduced evidence from Peter Kasora, the officer who received the exhibits.

His evidence was confirming recovery of the blood stained t-shirt from the accused's residence; the machete and axe, both of which were blood-stained and recovered from the accused's bedroom. One sandal, which was blood-stained, was recovered from the place where the body was and another from the accused's kitchen.

The witness's evidence is clearly common cause.

The accused adopted his Defence Outline as evidence in chief.

The accused was not candid with the court as he was clearly exposed as trying to hide behind a finger simply because the co-perpetrator, one Puranyemba Simango, was at large.

He admitted using the machete and not the axe, and that when Puranyemba Simango took the axe and chased the deceased he retired indoors.

On realising the axe was recovered from his house, in the bedroom, with blood stains, he knew he had to explain how the axe got to be there. He sought to give an unsatisfactory explanation that he just found the axe in his compound the following morning.

The accused could not explain how the t-shirt he was wearing got blood stained, and he sought to unconvincingly whisk away the blood stains as dirt.

Again, on realising the contradictions in his testimony, he sought to point out that he was threatened by the police, which threat he did not disclose to the magistrate who confirmed his confirmed warned and cautioned statement, which, to a large extent, supports the State case.

The accused's incredible story that when his nephew came to his assistance, of a supposed paramour of his wife, he retired indoors, is not only unsatisfactory but unbelievable.

Moreso, when viewed with the totality of the evidence before the court.

It is apparent from the evidence, that, on the night in question, the accused was accosted by the deceased while he was at his homestead. Earlier in the afternoon, the accused had seen the deceased seated in a compromised position with his wife at a beer drink. The accused had assaulted his wife over this misdemeanor and went home with his wife who he further assaulted for failing to cook because of the drunken state.

Upon arrival of the deceased, the accused ordered the latter to leave but the deceased resisted leading to an altercation.

The accused's nephew, one Simon Puranyemba Simango, joined in.

The accused, who had sharpened his machete and axe, resorted to using these weapons together with his nephew.

It is also very clear that Puranyemba Simango only joined in after revelation of what the problem was by the accused.

The accused is the one who took out the weapons used in striking the deceased.

The two were acting with common purpose vis a vis the intruder - that is the deceased.

There is nothing from the accused's testimony, or the State witnesses, which can lead one to come up with a deduction that the accused and the co-perpetrator were not acting with common purpose.

It is a fact that the deceased died as a result of injuries sustained from the physical confrontation with the accused and Simango Puranyemba.

Given the common cause aspects, what falls for determination, is; given the defence of provocation and self defence raised by the accused, has the State discharged the required onus in proving that the accused either with dolus actulis or dolus eventualis caused the death of the deceased.

From the evidence, the accused did not set out with a desire to bring about the death of the deceased or murder the deceased with actual intention. The accused requested the deceased to leave his place of residence after the deceased had come asking after the accused's wife whom he was drinking with in the afternoon.

The accused told the court the deceased struck him with a small bench on the legs, and, in his Defence Outline, he said he was struck on the legs and forearm. The discrepancy is not really material because what comes out is that the accused said he was assaulted.

In raising the defence of self-defence, as outlined in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], one has to meet the requirements set out therein.

One does not require more than ordinary wisdom to discern that the accused used disproportionate means to avert an assault by a bench.

Further, using lethal weapons, such as a machete and axe, to wade off an assault from a small wooden bench means the accused exceeded the limits of self defence and that defence is not available to the accused in this case.

HH966-15 : THE STATE vs GARIKAI CHIPENI
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

The delay in handing down judgement in this case was due to the loss of the notebook and delay in transcribing the record of proceedings.

The accused is charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:07]. He is alleged to have struck and mortally wounded his friend, Lucky Mafuta, on 18 December 2011 who eventually died on 9 January 2012.

The facts surrounding the alleged murder are, to a large extent, common cause.

The undisputed facts are that the accused and the deceased were unemployed friends who decided to pool their resources together and embark on a joint business venture buying and selling airtime recharge cards.

Each partner contributed an initial capital of US$23.

The deceased was responsible for keeping both the capital and proceeds of the business venture.

The accused eventually found alternative part-time employment resulting in the two agreeing to dissolve the partnership and share equally the business capital and profits on 18 December 2011.

On the morning of that date, the accused visited the deceased's lodgings at House Number 559 Makomo, Epworth for that purpose. He found the deceased at home. Instead of getting down to the business of dissolving the partnership and sharing the business proceeds, the deceased took him on a wild goose chase.

He first asked him to accompany him to Munyuki Bar where they had a few drinks with a friend before returning to the deceased's residence.

At the residence, the deceased could not produce the money, alleging that it was with his father who was away drinking. When the accused suggested that he would go and fetch the father, the deceased objected saying that his father detested being disturbed when drinking.

This resulted in a brawl which broke out into a fist fight.

There were no eye witnesses to the fight. What transpired during the fight can best be related in the words of the accused person's own words;

“…,. He grabbed me with his right hand by the neck. Thereafter, I tried to get hold of his hand to remove it from my neck. He then said I was desecrating him. He then assaulted me using clenched fists. I was unable to retaliate because I then fell down.

I fell on the bicycle and I sustained a cut on my left temple.

Thereafter, he took a piece of firewood that was behind the door next to the primus stove. I was now standing up. He feigned me with the firewood because he was aiming on the head. When he tried to assault me on the head I dodged and lifted my legs. He then assaulted me on the right leg.

I was down and I did not get a chance to get up.

After he had assaulted me I told him that he had injured me and he told me that he wanted to injure me. He did not say why he wanted to injure me. By the time I spoke to him that is when I got the opportunity to stand up.

I stood up.

I managed to get the piece of wood that was in his hand and we started wrestling for that piece of wood. When we started wrestling, that is when I got the opportunity to get a piece of firewood behind the door.

I assaulted him with the piece of firewood just above the ear once. When I assaulted him that is when I got the chance to escape because the deceased was older than me. I then managed to run away.”

From the accused's own testimony, it is apparent and a matter of common cause, that, he struck and killed the deceased with a blunt object as alleged by the State. The only point of dispute is whether or not he used the back of the wooden handle of an axe, as alleged by the State, or a piece of wood, as alleged by the accused.

In my view, there is no material difference. The bottom line is that the accused struck the deceased a vicious blow with a blunt object on the head with sufficient force to cause fatal injuries.

This is what he had to say under cross-examination;

“Q. Confirm you struck the deceased on the head with a hard object?

A. Yes.

Q. What object?

A. Firewood.

Q. How big?

A. 45cm long.

Q. Thickness?

A. I could not put my hand around it.

Q. Meaning it was heavy?

A. Yes.

Q. The doctor said there were fragments where the deceased had been struck on the head?

A. I do confirm.

Q. That means you used severe force?

A. Yes.

Q. Why did you choose to strike on the head?

A. Since I was being assaulted that was the only way I could escape.

Q. Why not strike on the hand?

A. When I struck the deceased on the head I was not looking where I was striking. I only wanted to strike him and escape.

Q. You appreciated the head was the most vulnerable part of the body?

A. Yes.

Q. Why did you not render him assistance?

A. I was afraid.”

The accused, having admitted that he deliberately struck the deceased on a vulnerable part of the body, the only issue that remains is whether or not he has a partial or complete defence for his conduct.

The evidence establishes, without any doubt, that, the accused struck the deceased with a heavy piece of wood on the head with severe force to cause multiple fatal fractures to the head.

Having regard to the nature of the weapon used, and the force applied, the accused must have foreseen and therefore did appreciate that death was likely to ensue.

The fatal blow was however struck in circumstances of severe provocation and in the course of a fight.

His defence, that he was acting in self-defence, is somewhat justified; but, having regard to all the available evidence, he exceeded the bounds of self defence.

HB19-17 : THE STATE vs HEROLD MOYO
Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

On the 17th of April 2016, during the evening hours, the deceased was at Sisonke Quarter Bottle Store, Maphane Business Centre, Gwanda. The deceased was aged 29 years at the time he met his death and was employed by the Zimbabwe National Army as a soldier.

The accused was also at the bottle store, drinking with his friends. The accused was 26 years old at the time of the offence.

The accused appears in this court facing a charge of murder. The State alleges, that, on the aforementioned date the accused did wrongfully and unlawfully and intentionally kill and murder Mthabisi Mthimkhulu (the deceased) by stabbing him with an okapi knife.

The accused denies the charge and avers that he stabbed the deceased in self defence.

The accused further raised the defence of provocation and stated, that, the deceased person subjected him to extreme provocation by attacking him with a beer bottle and fists and that his reaction to the attack was clouded by emotion and that he reasonably believed that his life was under threat. He went on to state, that, he acted in the heat of the moment and took such defensive action as was necessary to ward off the attack.

The State tendered into the record a summary of the outline of the State case (exhibit 1). It shall not be necessary to repeat the entire contents of the State Outline which now forms part of the record.

The accused tendered a Defence Outline (exhibit 2). At the heart of the accused's defence is the defence of provocation and self-defence.

It is not in dispute that the accused stabbed the deceased with a knife on his back and shoulder inflicting fatal injuries that led to the death of the deceased. The accused fled the scene after the stabbing on a bicycle and disappeared into the darkness. The accused was to remain in hiding before his arrest on 28 May 2016.

The State produced a confirmed warned and cautioned statement recorded from the accused person at Gwanda and confirmed by a magistrate on 27 June 2016. The English translation of the warned and cautioned statement is in the following terms:

“I committed a crime of murder using a knife while drinking some beer. The name of the deceased is Mthabisi Ndlovu. When they started this misunderstanding they were three of them. I rebuked them and two of them took heed of what I was saying, but, the deceased responded to say, who do I think I am. I then got hold of him intending to take him out, but the now deceased, again enquired as to who do I think I am. He threw a bottle at me and I ducked. I then produced a knife and stabbed him. The now deceased had earlier on got into the shop, and when he wanted to get to the shop once again, I again stabbed him and he died.”

The post mortem report was tendered into the record by the State as exhibit 4.

A duly registered medical practitioner employed as a pathologist at United Bulawayo Hospitals examined the remains of the deceased on 18 April 2016. The postmortem report is filed under number 329/325/2016. As a result of an examination conducted on the body of the deceased, the pathologist opined that the cause of death was;

(a) Hypovelimic shock;

(b) Rupture of anxillary and braquial arteries (right side) haemothorax;

(c) Stabbing injury;

On external examination, the pathologist observed the following marks of violence:

1. Wound (9x3.5cm) on the right arm, with muscles exposition in this region;

2. Wound (5x2cm) on the right back, to 8cm from right axillary region, to 17cm from the neck, to 7.5cm from longitudinal axis;

3. Wound (2.5x1cm) on the back of the left scapular to 22.5cm from longitudinal axis on the back;

4. Abrasion on the left costal cage;

On internal examination, the pathologist made the following further observations;

Wound 1: Affected arteries on the right arm (braquial artery) right side;

Wound 2: Affected axillary artery (right side);

Wound 3: Is penetrating inside thoraxic cavity and affected superior lobe of left lung. Haemothorax (approximately 200ml);

An examination of the lung/pleura revealed that there was a small rapture of the left lung (superior lobe) and haemothorax.

These were the findings of the pathologist which were set out in some detail in the post-mortem report. The findings are consistent with a knife stabbing.

The accused does not deny the stabbing. It is his motivation and intention that has to be examined by the court taking into account the evidence placed before the court.

The State Case

The State led viva voce evidence from three witnesses.

First to testify was Sincengani Dube. She is a female adult aged 35 years. She was, at the material time, employed as a shopkeeper at Sisonke Quarter Bottle Store. She knew the accused as a brother to the owner of the bottle store.

On the fateful day, she was at work. Around 7:30pm the deceased arrived at the bottle store in the company of his friends, including one Nkosiyethu Tshalibe. The deceased asked the witness how many black label beers she had in stock. The witness went behind the counter and counted the beer bottles and confirmed that she had twenty-three black label beers. The witness narrated that whilst this conversation was going on the accused was standing in the shop on the other side of the counter. As the deceased was walking out of the shop the witness observed the accused grabbing the deceased by the neck and pulling him to the side of the shop.

The witness said that she could not see what happened at that stage as her vision was obscured by a large speaker.

A little while later, the witness heard the sound of beer bottles being smashed. The sound originated from the direction where the deceased and accused were pushing and shoving. The witness then saw the accused stabbing the deceased once on the back just above the left shoulder. She also noticed that the deceased was bleeding profusely from the left arm.

The deceased ran out of the shop with the accused in hot pursuit.

After about 15 minutes, the accused returned to the shop, and, when the witness enquired why the accused was behaving in such a manner, the accused retorted that the deceased was disrespecting him.

The accused was still brandishing a knife.

The witness stated, that, there were several patrons in the bottle store. She testified that when the accused and the deceased went behind the speaker, and before she witnessed the stabbing, she heard the accused utter the following remarks:

“Ngizakuqeda isisoja sakho lesi” meaning “I will end your career as a soldier.”

The witness was subjected to intensive cross-examination. She maintained her evidence and confirmed that she had observed the accused stabbing the deceased. In that regard, she merely corroborated the accused's version that the accused indeed stabbed the deceased.

The witness was not controverted in any material respects and her evidence reads well. We find that she was a credible witness and her evidence is accepted by the court. We did not detect any tinge of exaggeration in her testimony. She was prepared to concede that she did not witness what transpired when the accused and the deceased went behind the speaker. The witness gave a clear and precise account of what she perceived.

Lungisani Mathema

This witness resides at Agnes Mathema's homestead in Gwanda. He knew both the accused and deceased before this incident as locals in the area. He was at Sisonke Quarter Bottle Store on the day in question.

He testified that he did not witness the stabbing of the deceased.

He met the deceased after he had already been stabbed. The deceased was bleeding profusely and had a deep cut on the right arm. He also noticed that the deceased had another deep cut at the back above the shoulders.

The witness stated, that, at that stage, he heard someone screaming and when he sought to establish what was happening he met the accused person who was holding a knife. The witness ordered the accused to stop. The accused did not stop and was complaining that the deceased and his colleagues were not showing him respect.

The witness then concerned himself with the injured deceased. The witness organised for a vehicle, at his own expense, for the ferrying of the deceased to hospital. At that stage, the deceased was not able to speak.

Mthabisi Ndlovu died at United Bulawayo Hospitals on the 18th of April 2016 as a result of stab wounds inflicted by the accused.

The evidence of this witness corroborated the first State witness.

The witness met the accused after the stabbing. The accused reiterated that he had stabbed the deceased because he felt disrespected.

It is not entirely clear how and why the accused felt humiliated to the extent of stabbing the deceased several times.

The court accepts that the evidence of this witness is an accurate reflection of what transpired on the night in question.

The accused was observed, after the stabbing, still holding the murder weapon. He admitted the stabbing. We make a finding that the evidence of this witness is entirely credible. He narrated what he observed. He did not testify on what he did not witness.

Constable Robson Makwea

The State called its third and last witness, Constable Robson Makwea. He is a duly attested member of the Zimbabwe Republic Police based at Gwanda Rural.

He testified, that, after receiving information about the whereabouts of the accused person, who had gone into hiding after the stabbing of the deceased, he, together with other police detectives, were dispatched to go and effect an arrest of the accused.

The witness stated, that, they located the accused at Simangele Dube's homestead where he had sought refuge. They arrested the accused who promptly admitted having committed the offence.

We were not impressed by the evidence of this witness who appeared to have little or no information regarding the case. The court found his evidence to add very little weight to the State case. The court will therefore conclude, that, the testimony of this witness is relevant to the extent that it corroborates the fact that the accused has never disputed that he stabbed the deceased.

The State then sought, and obtained authority to have the evidence of the under listed witnesses, as it appears in the summary of the State case, introduced into the record by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]), namely:

(a) Nkosiyethu Tshalibe;

(b) Innocent Mpofu;

(c) Lloyd Makotore;

(d) Nicholas Paringira;

(e) Farai Nyakonda;

(f) Kudakwashe Victor Chivise;

(g) Dr I. Betancourt;

The State closed its case.

Defence Case

The State led evidence from the accused, Herold Moyo. His version of events is that he arrived at Sisonke Quarter Bottle Store around 7:00pm. He requested for a jersey from the first State witness, Sincengani Dube. He was given a jersey and went out of the bottle store for about 45 minutes to an hour. He came back in the company of a group of people. They sat down in a corner and started drinking opaque beer commonly referred to as “calabash” (a term derived from the type of container that resembles a bottle gourd in which this type of beer is packaged).

The accused indicated, that, at the time of the incident, he was not yet drunk. He was in control of his mental faculties to the extent that he did not attribute his conduct to the consumption of the alcoholic beverage.

The accused testified, that, as they were enjoying their drinks, they observed that the deceased and his associates were entangled in a misunderstanding with one Bheki of Gwanda Vale. The accused stated that he immediately intervened and remonstrated with Nkosiyethu and Nosizwe who were involved in the pushing and shoving.

The accused said that he had succeeded in defusing the fracas when the deceased stood up and grabbed him by his hand and collar pushing against a wall. The deceased asked the accused who he thought he was. The accused says the deceased, who was holding two beer bottles in one hand, then threw one bottle at him and he ducked. The accused contends that they exchanged blows and he felt that he was being overpowered.

The accused said that, in the heat of the moment, he produced a knife to defend himself. He stabbed the deceased above the shoulders on three occasions. The accused averred that he stabbed the deceased in random fashion and that he felt that he was under imminent danger.

He did not realize that he could cause the death of the deceased. He acted in self-defence and under serious provocation.

He admitted that he was overwhelmed by anger, but did not intend to cause serious harm to the deceased.

The accused confirmed, that, upon realizing that the deceased was injured and bleeding profusely, he jumped onto a bicycle and fled the scene. The accused later learnt that the injured person had succumbed to the stab wounds and died. He decided to go into hiding. He was arrested a month after the incident at Simangele Dube's homestead.

We found the accused's version of events improbable for a number of reasons:

(i) Firstly, it is not clear from the evidence why the accused was angered by the deceased. It is also not clear why he felt that he was not being respected. He appeared to have been harbouring some grudge against the deceased.

(ii) Secondly, the accused gave the impression that he was a peacemaker who was protecting Bheki. The evidence from the State witness shows that the accused was in a violent mood. He was alleging that he was not being respected. He was the initial aggressor in that he blocked the deceased's path and told him not to go behind the counter.

(iii) Thirdly, the accused was not provoked to such a degree that he would reasonably have been expected to produce a knife. The accused was heard saying that he wanted to end the life of the soldier. He therefore clearly intended the consequences before the alleged fight.

(iv) Fourthly, the accused claims that he acted in self defence. He was under attack and wanted to extricate himself from the deceased's hold. There is no credible explanation why the accused stabbed the deceased three times in the back and on the left arm. The stab wounds were deep and penetrating. One of the stab wounds caused a rupture of the deceased's left lung. The post mortem report shows, beyond any doubt, that the force used in plunging the knife into the deceased's body was excessive. The deceased evidently suffered serious wounds. After the stabbing, the deceased was chased around by the accused like a wounded chicken and eventually bled until he died.

We totally reject the accused's version.

The evidence of Sincengani Dube shows that the accused was the aggressor. There was no reasonable cause for the accused to use a deadly weapon such as a knife. The accused repeatedly and randomly attacked the deceased. He did not stop to render assistance. He fled the scene....,.

Self Defence

In our law, the law of private defence, that is, self-defence, and defence of third persons, and defence of property provides, that, a person is entitled to take reasonable steps to defend himself against an unlawful attack.

G. FELTOE, in his book, Guide to Criminal Law of Zimbabwe…, states as follows:

“The requirements for this defence are:

(a) An unlawful attack;

(b) Upon X;

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

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

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

In deciding whether the defence of self defence is available to an accused person, the court must be satisfied that the accused was under attack and that he was in imminent danger.

The court examines all the available evidence placed before it.

The court must not adopt an armchair approach but must carefully consider all the circumstances of the case.

In the instant case, it is not disputed, that, the accused was seen by Sincengani Dube blocking the path of the deceased and challenging him as to why he was going behind a counter. The accused was observed pulling the deceased by the neck. Moments later, Sincengani Dube heard the noise of breaking beer bottles.

It is not disputed that the deceased suffered stab wounds inflicted by the accused.

On his own version, the accused stated, that, he stabbed the deceased three or four times on the back above the shoulder. The nature of the stab wounds are described in detail in the postmortem report.

The accused could not explain why he stabbed the deceased several times if he was just defending himself.

It is clear that the accused exceeded the bounds of self defence.

The accused said when he attacked the deceased he was overpowered by anger. We reject the notion that the accused was acting in self-defence because he was clearly the aggressor. He threatened to end the life of a soldier.

He achieved his purpose.

In terms of our law, the defence of self defence has been codified under section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which provides 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 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.”

The means used by the accused to avert the unlawful attack was not reasonable. The manner of the attack shows a repeated stabbing using excessive force.

The accused was determined to inflict serious injuries upon the deceased.

Even after the deceased had escaped and was bleeding, the accused pursued him, whilst brandishing the knife.

The circumstances of the case clearly indicate that the defence of self defence is not available to the accused. We accordingly reject that defence: see the cases of Sibanda v The State SC07-87; State v Kanyowa HH10-04.

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

In my view, the defence of necessity must be confined within the strictest and narrowest limits because of the danger attendant upon allowing a plea of necessity to excuse criminal conduct.In S v Beaule 1984 (2) ZLR 146 (S) it was held that for an act to be justified on ...

HMA45-19 : THE STATE vs THOMPSON MACHINGURA
Ruled By: MAWADZE J and ASSESSORS: NISH and GWERU

The then 30 year old accused is facing the charge of killing his then 38 year old sibling as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by assaulting him all over the body at Gwati Vllage, Chief Zimuto, Masvingo on 2 February 2019.

At the material time, only the accused and the now deceased stayed at their parents homestead in Gwati Village, Chief Zimuto, Masvingo.

It is not in dispute, that, sometime between 2017 or 2018, the now deceased was afflicted with some mental illness and had to be hospitalised, for two weeks, at Ngomahuru Psychiatric Hospital in Masvingo and that he fully recovered.

On 2 February 2019, the accused collected some maize from the Social Welfare Department, as drought relief, and took it home. It has not been disputed that the now deceased sold one of the maize bags without the accused's consent. The accused alleges the now deceased even wanted to sell the remaining bag and that this led to the altercation between the two.

The State alleges, that, the now deceased assaulted the accused with a yoke pin (chikeyi) and that the accused dispossessed the now deceased of the yoke pin. It is alleged the now deceased picked a hoe but was again dispossessed by the accused.

The State case is that the accused proceeded to assault the now deceased with the hoe causing injuries on the right hand, right leg, and the head resulting in the now deceased's death.

The accused is said to have dragged the now deceased's lifeless body from their main house and left it in a disused kitchen hut at the homestead.

The next morning, on 3 February 2019, the accused advised their cousin sister, Gladys Mavise, that he had assaulted the now deceased the previous night. Gladys Mavise then found the now deceased's body in the disused kitchen hut and alerted her father, Nelson Mavise. Meanwhile, the accused proceeded to the police and handed himself over. The police attended the scene and recovered the hoe.

The accused's basic defence is that he acted in self-defence as he was being indiscriminately attacked by the now deceased.

In our view, this is the narrow issue this court has to resolve as most of the facts are not in dispute.

The evidence of the village head of Gwati Village, Solomon Zimuto, an attending police detail, Pasca Musengezi, and Dr. Godfrey Zimbwa, who examined the remains of the now deceased and compiled a post mortem report, was all admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. In a summary, it is as follows:

(a) Solomon Zimuto

The accused woke him up in the early hours of 3 February 2019, at around 0100hrs, and disclosed that he, the accused, had assaulted the now deceased after the now deceased had sold maize meant for their food. He said the accused advised him that since the now deceased was injured the accused was now proceeding to hand himself over to the police. Later, at dawn, around 0500hrs, Solomon Zimuto proceeded to the now deceased and accused's homestead to check on the now deceased. He found the now deceased's body in a kitchen hut with injuries on the right leg, right hand, and back of the head. He also observed a trail of blood from the main house to the disused kitchen where the now deceased's body was.

Our only brief comment is that the accused did not tell Solomon Zimuto that he had fought the now deceased or acted in self defence as the accused now alleges. Further, the accused, did not also reveal that the now deceased had been fatally injured or was dead.

(b) Pasca Musengezi

He is one of the police details who accompanied the investigating officer, Rtd Sgt Augustine Magadzi, to the crime scene. He observed blood in the accused's main house and the blood spoor or trail led to the dis-used kitchen hut where the now deceased's body was.

Our brief comment is that the accused admits that he indeed assaulted the now deceased whilst in the main house and later on dragged him to the disused kitchen hut.

(c) Dr Godfrey Zimbwa

Dr Zimbwa carried out the examination of the now deceased's remains and authored the post-mortem report, exhibit 1, on 4 February 2019. He observed the following:

(i) Extensive body bruises;

(ii) Multiple skull fracture;

(iii) Fracture of the left tibia and fibula;

(iv) Fracture of the right humerus;

(v) Massive abdominal inflation or distention.

Dr Zimbwa concluded, that, the cause of the death was haemorrhagic shock, arising from the head injury and the multiple fractures.

The cause of the now deceased`s death is not an issue.

The accused admits inflicting the fatal injuries.

It is clear from the nature of the injuries that the assault was indiscriminate and severe force was used. A potential lethal weapon, a hoe, exhibit 3, was used. Its weight is 660g (after being broken) and the broken hoe handle was 14cm.

Indeed, the blows by the accused landed on the deceased's head, a vulnerable part of the body, causing not only hand and leg fractures but multiple skull fractures. This is indicative that several blows were delivered.

The State led viva voce evidence from three (3) witnesses, Gladys Mavise, a cousin to both the accused and the now deceased, her father, Nelson Mavise, who is an elder brother to both the accused and the now deceased's late father and the investigating officer, Rtd Sgt Augustine Magadza.

None of all these three (3) witnesses was an eye witness to the assault of the now deceased by the accused. Their testimony therefore is very peripheral and of no probative value to the issue at hand. We simply refer to it for the sake of completeness of the facts.

1. Rtd Sgt Augustine Magadza

In our view, nothing turns on his evidence other than that he is the investigating officer and attended the scene. He observed the injuries on the now deceased and the blood spoor from the main house to the disused kitchen where the now deceased's body was found. He also recovered the hoe, exhibit 3, on the accused's indications.

2. Nelson Mavise

Nelson Mavise confirmed that the accused and the now deceased had normal sibling misunderstandings and that at one point the now deceased suffered from mental illness but was successfully treated. He denied that the now deceased was a person of violent disposition as alleged by the accused. His daughter, Gladys Mavise, called him on 3 February 2019 and led him to the disused kitchen hut where the now deceased's body was and he noted injuries on the now deceased's head.

3. Gladys Mavise

Gladys Mavise (Gladys) is an elder cousin of both the accused and the now deceased and she stayed about 100m from the accused and now deceased's homestead. Gladys confirmed, that, prior to this day, the accused and the now deceased had once fought over a dispute of food and she counselled them. Contrary to the accused's assertions she said it is the accused and not the now deceased who was of violent disposition. She confirmed that the now deceased was once afflicted with mental illness and admitted to Ngomahuru Psychiatric Hospital, Masvingo, but was successfully treated.

As regards the events of this day, Gladys said, on 2 February 2019, at around 1900 hours, it is the accused who came to her. The accused was moderately drunk and advised her that the now deceased had sold the maize the accused had collected as drought relief. She said the accused said he was going to deal with the now deceased or to sort him out (kumugadzirisa in shona).

Gladys said being aware of the accused's inclination to violent behaviour she implored the accused to shelve the matter until the next morning. The accused then left and she never saw him again that night.

Later that night, the now deceased is the one who came and collected some food from Gladys. The now deceased was sober.

This is contrary to the accused's assertions that the now deceased was drunk.

Gladys said at around 2100 hours she heard both the accused and the now deceased quarrelling in high pitched voices but she got scared to check on them as it was late at night. She said it is the accused who came to her the next morning saying he was going to the police. Upon inquiring why, the accused said he had broken the now deceased's leg. She asked the accused to take her to the now deceased, but, before they got to the disused kitchen hut, the accused disappeared.

Inside the kitchen hut she saw the naked lifeless body of the now deceased lying on his back. She also observed a blood spoor from the main house to the kitchen hut. Realizing the gravity of the situation, she called her father, Nelson Mavise.

Under cross examination, Gladys Mavise admitted, that, on 4 November 2018, the accused had assaulted Gladys's father, Nelson Mavise, accusing him of practising witchcraft and that the accused had been arrested.

She denied that the now deceased was of a violent disposition, but had burnt their grandmother's hut when he was mentally ill.

Gladys insisted, that, the accused had said he would sort out the now deceased that night for selling the maize and that the accused was moderately drunk. She denied that the accused made any other report other than that he had broken the now deceased's leg.

In our assessment, Gladys Mavise is a mature woman who was very balanced in her testimony. We did not find any possible motive for her to lie on any issue, but was fair and objective. Further, most of the factual issues she testified on are not in dispute. We therefore find no objective basis not to accept her evidence.

In order to resolve the issue as to whether the accused acted in self-defence, and be absolved of any criminal liability, we shall focus more on the accused's own evidence as it unfolds from his confirmed warned and cautioned statement, exhibit 2, the Defence Outline, Annexure B, and viva voce evidence.

Thereafter, we shall evaluate whether the accused's testimony is not only credible but whether it meets the legal requirements as self defence.

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.

The requirements outlined is section 253(1)(a) to (d) of the Criminal Law (Codification and Reform) Act are conjunctive.

In the case of the State v Collet Baira Manzonza HMA02-16…, I dealt at length with the requirements of self defence and how they should be applied.

I now turn to the accused's evidence.

In his Defence Outline, the accused lied that he went to advise Gladys Mavise that the now deceased had become violent. This was disputed by Gladys Mavise.

The impression the accused gave in his Defence Outline is that when he delivered the fatal blows it was in darkness and in self-defence.

What the accused concedes is that after disarming the now deceased he proceeded to attack him.

In his warned and cautioned statement, exhibit 2, the accused said after he kicked the now deceased on the chest the now deceased fell down. The accused said he disarmed the now deceased of the hoe. The reason the accused gave for attacking the now deceased was that he was angry, or, I quote: “I struck him as a result of anger.”

Under cross examination, the accused conceded, that, by the time he assaulted the now deceased, the now deceased did not retaliate. The accused further conceded, that, his life was no longer in danger. Most importantly, the accused conceded, that, he acted in anger rather than in self defence.

In our view, that concession by the accused puts to bed his assertion that he acted in self-defence.

It was futile for the accused to try to disown incriminating parts or contradictory parts of his confirmed warned and cautioned statement.

Our finding is that whereas the accused may have been under unlawful attack, his conduct of savagely attacking the now deceased was not necessary to avert the unlawful attack. The accused could simply have fled from the scene. Further, the means he used to avert the unlawful attack cannot be said to be reasonable in all the circumstances.

Lastly, the injuries he inflicted on the now deceased were grossly disproportionate to the unlawful attack he faced. In fact, the accused had virtually no injuries.

It is therefore clear, that, on the facts proved, the defence of self-defence is not available to the accused. The accused is simply raising that defence in a dishonest manner.

He was angered by the deceased's conduct of selling the maize and decided to “sort him out” to quote his own words.

While the accused may not have intended to kill the now deceased, the manner in which he assaulted him indiscriminately leads to the finding that the accused realised that his conduct may cause death, but, nonetheless, continued to assault the now deceased in that manner despite the risk or possibility.

In the result, we find the accused guilty of murder with constructive intent as defined in section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

VERDICT: Guilty of C/S 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - Murder with Constructive Intent.

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Pursuant to the conviction and sentence for Attempted Murder as defined in section 189(1) as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the appellant lodged the present appeal with this court.

The appellant, a girlfriend to the complainant, was convicted of unlawfully stabbing the complainant, one Josam Mapinge, in circumstances where there was realisation that there was a real risk or possibility that murder may be committed.

The appellant, who stabbed the complainant, Josam Mapinge, with a knife once in the abdomen, was convicted of attempted murder and sentenced to 6 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour.

The brief circumstances informing the charge, as discerned from the record, are as follows:

The appellant visited the complainant, the boyfriend. She requested for his cell phone to read some text messages. The complainant gave her the cell phone, and, when he requested the phone back, the complainant resisted and locked herself inside while the complainant was outside. Later, the complainant gained entry into the room and asked for his phone. The appellant was not forthcoming and she then picked the knife from the kitchen and stabbed the complainant.

Dissatisfied with both conviction and sentence, the appellant lodged seven (7) grounds of appeal against conviction and four (4) grounds of appeal against sentence.

The grounds, as discerned from the Notice of Appeal, are as follows:

“Conviction

1. The learned Magistrate erred and misdirected herself at law and fact when she convicted the appellant of attempted murder.

2. The learned Magistrate further erred and misdirected herself at law and fact when she used an armchair approach and stereotyped victims of sexual assault by the complainant.

3. The learned Magistrate further erred and misdirected herself when she rejected the appellant's defence and explanation that she was a victim of sexual assault.

4. The learned Magistrate further erred and misdirected herself when she rejected the appellant's contention that she was acting in self defence.

5. The Trial Magistrate further failed to apply her mind to the inherent dangers of accepting the complainant's testimony (without corroboration) as a single witness to the incident. Ultimately, she failed to apply caution to that evidence.

6. The Trial Magistrate further grossly erred and misdirected herself when she rejected the evidence of the Appellant's witness(es).

7. The Trial Magistrate further erred and misdirected herself when she placed an onus on the appellant to prove her innocence of the charge.

Sentence

1. The sentence that was imposed by the Trial Court induces a grave sense of shock and disbelief and is not in tandem with other decided cases.

2. The Trial Magistrate erred and misdirected herself in her approach to sentence when she paid lip service to the highly mitigatory features in favour of the appellant.

3. The learned Magistrate further erred and misdirected herself when she injudiciously criticized and immortalized the appellant for engaging in an adulterous relationship with the complainant.

4. The learned Magistrate further erred and misdirected herself by sensationally refusing to impose community service or a hefty fine on the appellant.”

The grounds of appeal in respect of conviction are clearly repetitive.

In summary, the appellant took offence with the rejection of the defence proffered by the appellant.

Further, the appellant took issues with the court accepting the evidence of the complainant while rejecting that of the accused and her witnesses.

The appellant thus attacked the factual and legal finding by the court a quo.

What falls for consideration here is whether or not the trial court properly rejected the accused's defence of self-defence.

It is common cause the defence is provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In order for one to succeed in relying on the defence, one must prove that:

(i) He or she did or omitted to do the thing, the unlawful attack had commenced or was imminent;
(ii) His or her conduct was necessary to avert the unlawful attack or that he or she could not escape from or avert the attack;
(iii) The means used were reasonable in all the circumstances; and
(iv) That any harm or injury caused by his or her conduct was caused to the attacker.

Clearly, the defence is only available if the requirements are all met.

Only when there is an unlawful or imminent unlawful attack can one motivate the defence of self-defence.

The trial court had to look at the circumstances presented before it and analyse the evidence to deduce if the appellant qualified for the defence.

The court a quo believed the State witnesses and decided that the appellant did not satisfy the requirements of the defence and thus found her guilty as charged.

A close look at the record of proceedings reveals the following common cause aspects:

1. That the appellant and complainant were lovers and were together on the night in question.

2. That they parted ways after having a misunderstanding over a text message on the complainant's phone.

3. That the complainant followed the accused to her house and that he forced his way in using the back door after failing to be granted access through the front door.

4. That a misunderstanding ensued which culminated in the complainant being stabbed by the appellant.

The complainant was the only witness in the State case.

There was need to be cautious of his evidence so as to eliminate the danger of false incriminations; moreso, given the common cause aspect that the complainant forced himself into the appellant's house when the latter had denied him access over the disagreement about the text message.

Given the manner in which the complainant entered, and the disagreement that existed, there was need to consider the sufficiency of the evidence upon which the court convicted.

The complainant's evidence, and the accused's evidence, and probabilities ought to be weighed in such a manner as to eliminate the dangers of false incrimination.

It is settled, that, the accused in a criminal matter does not have to prove his innocence, but, that the State has to prove the accused's guilt beyond reasonable doubt: see S v Shack 2001 (2) SA CR 185 SC 17 and S v Ndlovu & Others HB81-06.

See also S v Kuiper 2000 (1) ZLR 113.

Once the accused's story is reasonably possibly true, that, the accused ought to be granted the benefit of doubt and be acquitted.

In S v Makanyanga 1996 (2) ZLR 231 GILLESPIE J stated that:

“Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true….,.”

The accused, in this case, raised the defence of self-defence and the accused was to prove that she was under attack, and that when she engaged in an altercation on the attacker it was to avert the unlawful attack in a reasonable manner: see S v Tafirei Runesu HMA37-17; S v Mabvume HH39-16; and S v Manzanza HMA02-16.

In S v Manzanza HMA02-16 MAWADZE J made the following pertinent remarks on assessment of what is “reasonable” when he remarked:

“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 novo, a super human with papal infallibility or an agent.”

In the present case, the court was faced with the complainant's evidence and the appellant's evidence.

The court a quo, in its judgment, pointed out it had to juxtapose the complainant and the appellant's version and determine which one was true.

Such approach, in the absence of demonstration of reasoning of elimination of the danger of false incrimination, would be faulty.

It is permissible to convict on a single witness evidence, but, the evidence has to be properly weighed with the totality of circumstances and not just balance the evidence of the witnesses in the abstract ignoring the obvious requirement on the State to prove its case beyond reasonable doubt.

It is appreciated the court a quo had the benefit of assessing credibility of the witness.

Given the evidence of the complainant and the appellant, the court a quo ought to have considered that evidence against the defence raised.

The key factor being, that, the accused has no onus to prove his or her innocence; once his defence is reasonably possibly true, then, he ought to be granted the benefit of doubt.

The court a quo, in rejecting the appellant's defence, made inferences while at the same time disregarding other possibilities without justification.

The court a quo had its own reconstruction of what it expected the appellant to have behaved like.

This then leads to the dismissal of the defence of self without considering whether or not it was reasonable in the circumstances the appellant found herself in as enunciated in S v Manzanza HMA02-16 and S v Ntuli 1975 (1) SA 429.

The court was dismissive of the defence of self defence as it made a finding, that, the appellant was aggrieved by the fact that the complainant, whom she had been in an adulterous affair with for 5 years, was seeing another woman and that she was incensed with jealousy since she anticipated marriage.

This appeared to be an inference drawn by the court despite the common cause aspects that the complainant is the one who pursued the appellant at the house, and, despite being denied entry, forced his way into the complainant's house.

This intrusion is what the appellant sought to wade off.

The appellant's defence was that the complainant used the back door to enter and he sought to sexually impose himself on her.

It is in the context of that attack that the self-defence was motivated, and, of course, the issue of whether the means used were reasonable in the circumstances arises.

The court a quo rejected the defence version on the basis that there were two (2) other people in the house and assumed the complainant would not have made sexual overtures.

Further, in its judgment, the court a quo further remarked:

“It was impossible for the complainant to raise his chest whilst his hand was propping her private parts and the other taking out his penis….,. If it happened in that manner, it could not be true for the accused to say the complainant was pressing her down and could not have freed herself. What it means is that if the upper part of the complainant's body was not in contact with accused's body she could easily have managed to sit down and free herself from complainant's grip. There was no way complainant could have entered her private parts whilst seated.”

This is clearly indicative of the court entertaining the appellant being under attack but then falling into the error of seeking to measure, with nice intellectual callipers, the precise bounds of the legitimate defence.

The court a quo proceeded to draw inferences on the occurrences and discounted other possibility in circumstances where there is no justification for such findings.

The appellant was under attack from the lover, who forced his way into the house on the background of a misunderstanding over a cell phone message.

That the appellant sought to impose himself on her is reasonably possibly true given forced entry into the house and the use of a knife. The use of a knife to stab him, in face of a potential sexual abuse, cannot be said to be disproportionate to the harm that would have been caused by the non-consensual intimacy or rape.

That the appellant and complainant used to be intimate, consensually, in the past, should not be held against the appellant's defence given the background of disagreement.

In any event, prior consent to intimacy in the past would not mean consent on that day.

The forced entry into the appellant's house, given the affair, could have been most likely actuated by the beliefs that he was entitled to special privileges. This, on its own, gives credence to the appellant's defence of self-defence, and, in the face of sexual imposition, the limits of the defence were not exceeded.

The appellant's story was reasonably possibly true and she ought to have been acquitted.

The appellant had also appealed against sentence and the respondent conceded. I will not dwell much on the aspect of sentence as it does not arise given our finding on conviction.

Suffices, however, to point out, that, pursuant to a proper conviction for attempted murder, the sentence of 6 years imprisonment with 2 years suspended on condition of good behaviour is in sync with sentences imposed for similar offences.

There would have been no reason for interfering with the properly exercised sentencing discretion.

In the present case, the conviction cannot stand, and, consequently, the sentence falls off.

Accordingly, it is ordered that:

1. The appeal be and is hereby upheld.

2. The decision of the court a quo is set aside and substituted as follows:

The accused is found not guilty and acquitted.

HMT43-19 : THE STATE vs MICHAEL MUNAPO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

In this case, the accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in which it is alleged, that, on 11 September 2018, at Gumtree Shop, Chitakatira Village, Chief Zimunya, Mutare the accused, with intent to kill, stabbed the deceased with a knife once on the right side of the neck thereby inflicting injuries from which the deceased bled profusely and succumbed to death due to massive haemorrhage.

The post mortem report prepared by Dr Forgiveness Chitungo concluded the cause of death and it was tendered as exhibit 4 by consent. The doctor concluded, that, the cause of death was exsanguination secondary to haemorrhage.

The accused, in his defence, does not dispute stabbing the deceased, but, denied stabbing the deceased with an intention to kill.

He raised a defence of self-defence and he explained that he feigned stabbing the deceased at the time he was under attack from the deceased and company.

The factual allegations in this case are largely common cause. The only issue that falls for determination is whether or not, when the accused stabbed the deceased, he was acting in self defence such as to negate the requisite mens rea to commit the crime of murder.

The State adduced evidence from a total of 12 witnesses. Only four witnesses, Dr Forgiveness Chitungo, Baison Nedyere, Letwin Mavoyo, and Shadrek Munapo gave viva voce evidence.

The rest of the witnesses evidence was formally admitted as it was on common cause aspects.

The undisputed facts are as follows:

1. On 11 September 2018, the accused proceeded to Gumtree Shopping Centre in possession of a knife carried in his pocket.

2. The accused met with the deceased, and others, at the shopping centre.

3. The accused and the deceased had issues of stalking the same girlfriend, one Miriam Chabikwa.

4. The deceased had issues with the accused after “Whatsapp message bragging about how accused snatched the girlfriend.”

5. It was clarified the accused had not sent any whatsapp message as clearly revealed he had not been on whatsapp line or connection for over 2 weeks back.

6. The accused challenged the deceased by getting in conduct with the chest and the deceased slapped the accused and the latter retaliated.

7. A scuffle ensued between the accused and the deceased who had pushed each other to a dark place.

8. The deceased was stabbed on the neck and the carotid artery was severed.

9. The accused fled from the scene.

10. The deceased profusely bled and was pronounced dead upon arrival at Mutare Provincial Hospital where he had been referred by the sister in charge, Chitakatira Clinic, one Letwin Mavoyo.

I must point out, that, Dr Forgiveness Chitungo gave very clear evidence on the examination and preparation of the post-mortem report of the remains of the deceased.

He observed a 5cm laceration on the right side neck of the deceased. He further observed that the carotid artery was severed, and came up to the conclusion, that, death was as a result of exsanguination secondary to massive haemorrhage.

The doctor made it clear, that, the process of stopping blood oozing from a severed carotid artery was complex and would require use of special tools to plug the artery and this was not available at clinics like Chitakatira.

The doctor was unnecessarily subjected to what this court may term harassment on his experience and qualifications.

He never sought to portray himself as a specialist pathologist but was taken to task.

His report was clear on the history of the body he observed, and the observations he made.

The deceased was stabbed and he bled to death, or that he lost blood to levels incapable of sustaining life for himself.

Despite the unnecessary bruising and barraging cross-examination, the witness maintained his professional stance as he explained his observations, as recorded in the postmortem report, exhibit 4.

Given the accused's defence, it was not in dispute that the deceased died following the stab wound.

Letwin Mavayo's evidence was also very straight forward.

She is a nursing sister at Chitakatira Clinic. She only covered the wound with a bandage. According to her, at the time she attended the deceased, blood was no longer oozing out, but, the deceased's clothes were soaked in blood. Even at the place where he was seated, after being dropped off by a vehicle, there was a pool of blood.

The witness deduced, that, the deceased required hospital attention and thus referred the patient to Mutare Provincial Hospital.

The witness gave her evidence well. She took a barrage of unnecessary criticism from the defence counsel as regards how she carried out her duty.

The defence queried why she was not in the clinic after hours. The witness was on call and was within the hospital campus, and, as is expected, upon receiving an emergency, akin to “urgent matter” at court, she immediately attended.

Blood had been gushing from the scene of the stabbing at the shopping centre, a distance estimated by witnesses to be about 5km, and the flow had subsided at the time of reaching the hospital.

This decrease in blood flow, naturally, as elucidated by Dr Chitungo, is not because of treatment, but, that the blood contained in a human being is not infinite but an average quantity of about 5 litres.

The witness attended and referred the patient for specialised care.

There was no failure to timeously and professionally attend to the patient and administer treatment as suggested by the defence.

In so far as carrying out the duty of responding to call, and attending to a patient, the witness cannot be criticised. Her evidence was straightforward.

Byson Nendere also gave oral evidence.

He narrated how, on the day in question, the accused arrived at the shops. According to the witness, there was a misunderstanding over a whatsapp message. The issue involved a girlfriend common to the accused and the deceased. The witness was in the company of the deceased one James and David when checks were made. It was confirmed the accused had not sent the alleged whatsapp message as he was not online. It was then that the accused challenged the deceased.

The latter then slapped the accused and the accused retaliated.

The two grappled with each other in a dark place and then the deceased cried out he had been stabbed and injured. He fell to the ground.

The witness was not taken to task on what role he played, if any, during the scuffle.

It appears that he was at the scene and was assumed to have participated.

The witness, although he pointed out that the accused challenged all the people, saying there is nothing you can do to me, it was clear a scuffle ensued between the accused and the deceased.

David Munapo, a cousin brother to the accused, confirmed the sequence of events at the shopping centre as recounted by Byson Nendere.

After the check on whatsapp, his brother, the accused, challenged all people, including the deceased, saying they could do nothing to him. The accused actually physically poked the deceased's chest following which he was slapped and a scuffle ensued.

The witness pointed out that the two pushed each other and he later heard the deceased cry out as he had been stabbed.

The witness was just observing as he was taken aback by the accused's courage and challenge to the deceased who was much older than him. He wondered what it is the accused was riding on to have such courage.

The minor differences in the witness testimony and that of Byson Nendere is immaterial.

The incident occurred in the evening, at the shopping centre, and it was for a short while. The witnesses do not have to give evidence which is word for word with each other for them to be held credible.

On material aspects, the witnesses corroborate the State case.

The scuffle was between the accused and the deceased, even though the accused challenged the witnesses and the deceased - especially after verification that no whatsapp message had been sent. The issue was clearly between the accused and the deceased as the accused is said to have snatched away the deceased's girlfriend, Miriam Chabikwa.

The minor discrepancies on distance during observation of the scuffle, one saying 3 metres and another saying 6–7 metres, and difference on when instruction to phone the police after being stabbed was given, are immaterial as they do not go to the root of the matter neither do they change the complexion of the matter.

The evidence of the witnesses, on what transpired, is clear, and both witnesses gave evidence well and in a truthful manner.

In the case of S v Lawrence and Ors 1989 (2) ZLR 29 (S) it was held:

“…, discrepancies in a case must be of such magnitude and value that they go to the root of that matter to such an extent that their presence would no doubt give a different complexion of the matter altogether.”

In casu, the variations on witnesses version about distance from the shop veranda to the secluded place are minor and do not change the common cause evidence that a misunderstanding over a whatsapp message about a common girlfriend, Miriam Chabikwa degenerated into a challenge between the accused and the deceased.

During the scuffle, the two moved away by pushing each other to a dark place; following which the deceased sustained a stab wound.

The witnesses, Byson Nendere and David Munapo's evidence remained intact and they cannot be said to have been lying on common cause aspects.

The last witness who gave oral evidence is Shadreck Munapo, the father of the accused.

The witness, as correctly observed by defence counsel, did not witness the fraca at the Gumtree Shopping Centre neither did he witness the stabbing of the deceased.

His evidence was strictly “hearsay”.

As if that was not enough, the witness's evidence, that, prior to this day, the accused had sought to stab him, and, that, on that date, the accused threatened him, is inadmissible as it is similar fact evidence.

In any event, the witness oscillated from saying he was threatened on that day to saying it was on another day.

However, such evidence still has no relevance to the present case.

The witness had issues with the accused and the accused's mother, his wife, as he took offence with why the accused was legally represented.

When viewed in conjunction with the accused's evidence, there was no good or cordial relationship between the accused and the witness; as clearly, the accused was hostile to the fact, that, the father was living with another woman not his mother. The accused referred to that woman as a prostitute.

There was clearly tension between the accused and the witness.

The witness's evidence, in our view, was to a large extent inadmissible, prejudicial, and irrelevant to the matter beforehand.

It is accordingly expunged from the record or disregarded to that extent.

The accused maintained he took out the knife and feigned to stab the deceased in a bid to wade off an attack on himself by the deceased and his companions, who included Byson Nedyere and David Munapo.

In his evidence, however, the accused did not elaborate how he was attacked.

Both evidence in chief, and even during cross examination of witnesses, the detail of how he was attacked is missing.

Only in closing submissions is there emphasis that he was held and assaulted all over the body by more than three people and that is when he produced the knife to scare off his assailants.

Even in his confirmed warned and cautioned statement, exhibit 1, the accused's version is clear that he and the deceased, Blessing Mhondera, were fighting for a girlfriend, Miriam Chabikwa, when he stabbed the deceased.

Failure to give such detail in the confirmed warned and cautioned statement, and failure to give flesh and detail on the attack which he had to defend himself, and only emphasizing the defence in the Defence Outline and closing submissions taint the accused's version as an afterthought.

Even during cross-examination by the State counsel, the accused appeared to be taking a gamble on the suggested defence of self-defence as he was not firm on the defence.

The defence of self-defence, as provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], clearly outlines requirements which have to be fulfilled in order for one to succeed.

An accused relying on the defence must prove, that, when he or she did or omitted to do the thing:

(i) The unlawful attack had commenced or was imminent;

(ii) His or her conduct was necessary to avert the unlawful attack or that he or she would not escape from or avert the attack;

(iii) The means used were reasonable in all circumstances; and

(iv) That any harm or injury caused by his or her conduct was caused to the attacker.

See S v Sibanda HB139-18; S v Manzanza HMA02-16; and S v Tafirei Runesu HMA37-17.

In S v Tafirei Runesu HMA37-17, MAFUSIRE J, in discussing the law on self defence pointed out that:

“A person who is a victim of an unlawful attack is entitled to resort to force to repel such an attack. Any harm or damage inflicted on the aggressor, in the course of such an attack, or when the attack is imminent, is lawful.”

See also S v Ncube SC58-17.

Central to this defence of self-defence is whether the harm caused to the attacker was reasonably necessary to avert the unlawful attack and that the means used were reasonable in the circumstances.

In casu, the accused, who challenged the deceased, was slapped by the deceased.

He fought back and the two engaged in a fight. There is no evidence that the deceased was armed; there was pushing and shoving by the two in an open space when the accused took out his knife.

His story or version, that he feigned to stab, given the nature of injuries sustained and the body part to which the blow was aimed, is not only unbelievable but false.

If it was mere producing of a knife, then, the question is: how then was the deceased stabbed with significant force?

The accused had consciously left his home armed with a knife which, according to him, would have become handy in case he met some muggers. It is the same knife that he resorted to use when a fight erupted between him and the deceased.

The question is whether the accused acted unlawfully and that he realized or ought reasonably to have realised that he was exceeding the bounds of self-defence and foresaw or ought to reasonably have foreseen the possibility of the resultant death.

If the answer is in the affirmative, basing on evidence adduced by the State proving the case beyond reasonable doubt, then, the accused is liable for the offence.

In this case, the evidence of State witnesses was well presented and the witnesses who were at the scene impressed us as truthful and reliable witnesses. They maintained their version, which, to a great extent, tallied with the accused's version, that, the fight between the two was over a girl.

The afterthought defence, of self-defence, cannot be sustained given all the requirements cannot be met.

The accused certainly exceeded the limits when he stabbed the unarmed deceased he was fighting within an open space.

Even if it were to be accepted, that, the deceased had companions in attendance; fear of being attacked by unarmed men, who have been shown not to be actively involved in the fight, would not warrant use of a knife.

The action taken was disproportionate to the perceived danger sought to be averted.

The crime of murder, faced by the accused, consists of unlawful and intentional killing of another human being.

In S v Kurongera HH267-17, HUNGWE J opinioned that:

“Where there is no expression of such intent, the law can infer such an intention from the accused's conduct and circumstances surrounding the commission of the offence and conclude that such an intent existed in accused's mind.”

In this case, the accused cannot be said to have set out with an aim to kill, and proceeded to achieve his goal, but, he definitely went out armed with a knife ready to use, if attacked.

When involved in a fight, which he started, by poking the deceased, he consciously took the knife and stabbed the deceased in the neck severing the carotid artery.

Such conduct, of using a lethal weapon on another's delicate part of the body, gives the impression the accused had the requisite legal intention.

The accused is legally liable for the death of the deceased, and cannot escape conviction, for, he engaged in conduct of stabbing the deceased in circumstances where there was realisation that there was real risk or possibility that the conduct might cause death.

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

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

The defence raised by the accused is provided for in section 263 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It provides that:

“(1) Subject to this Part, the fact that it was necessary for a person accused of a crime to do or omit to do anything that is an essential element of the crime in order to avoid harm to himself or herself or to another person shall be a complete defence to the charge if -

(a) The harm which he or she sought to avoid would have resulted in -

(i) Death or serious bodily injury to himself or herself or to another person; or

(ii) Considerable financial or proprietary loss to himself or herself; and

(b) He or she believed, on reasonable grounds, that, the harm referred to in paragraph (a) had started to occur or was imminent; and

(c) The harm referred to in paragraph (a) did not arise through his or her own fault; and

(d) He or she believed, on reasonable grounds, that, his or her conduct was necessary to avoid the harm referred to in paragraph (a) and that there was no other feasible way of avoiding it; and

(e) By his or her conduct, he or she did no more harm than was reasonably necessary to avoid the harm referred to in paragraph (a), and the harm he or she did was not disproportionate to the harm referred to in paragraph (a).

(2) In determining whether harm would cause considerable financial or proprietary loss to a person for the purposes of subparagraph (ii) of paragraph (a) of subsection (1), a court shall have regard to the financial or proprietary resources of the person concerned.”

Further, section 264 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] goes on to give further requirements to be met for the defence of necessity to be a complete defence to a person accused of murder.

It is apparent, from the reading of section 264 of the Criminal Law (Codification and Reform) Act, that, the harm that an accused seeking to rely on defence of necessity ought to be one which would have resulted in his or her death or that of family, and that he or she had no prior warning of the imminent harm and therefore would not have been able to forestall it.

The defence is akin to the defence of self-defence and is not available by mere asking but only available if all the requirements outlined by the law are met.

If all requirements are met, and it is evident that more harm than was reasonably necessary was occasioned, then, the accused relying on the defence of necessity should be liable for negligently causing the death of another - culpable homicide.

Provisions of section 265 of the Criminal Law (Codification and Reform) Act (the Criminal Code) are instructive....,.

The defence of necessity contemplated in sections 263 and 264 of the Criminal Law (Codification and Reform) Act is a defence that can only be relied on by an accused who would have done the act in a bid to defend himself, or any other person, from an attack or imminent danger which would have resulted in death of the victim....,.

The law only allows a person to take reasonable steps to defend himself or another against an unlawful attack, and, in so doing, an attacker, in justifiable circumstances, can be killed: see S v Mabvumbe HH39-16; S v Tafiresu HMA; and S v Mudenda HB66-15.

The accused must show that there was an imminent attack and action taken was reasonable.

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Defence of Person, Self Defence, Private Defence, Defence of Property and the Defence of Necessity re: Approach

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HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HMA45-19 : THE STATE vs THOMPSON MACHINGURA
Ruled By: MAWADZE J and ASSESSORS: NISH and GWERU

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT43-19 : THE STATE vs MICHAEL MUNAPO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

Categories

Law Portal Zimbabwe

Defence of Person, Self Defence, Private Defence, Defence of Property and the Defence of Necessity re: Approach

HH206-18 : THE STATE vs ROBERT TEVEDZAYI Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

HH233-16 : THE STATE vs BRIGHTON MUKWACHA Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and CHAGUGUDZA

HB201-15 : THE STATE vs ROBERT NYONI Ruled By: MAKONESE J

HMT16-18 : THE STATE vs CHARLES HOFISI Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and RAJA

HB175-18 : THE STATE vs STEVEN TSHUMA Ruled By: MATHONSI J

HB124-17 : THE STATE vs FREDDY SHAVI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HH482-16 : THE STATE vs PHILLIP MASHAVA Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

HH966-15 : THE STATE vs GARIKAI CHIPENI Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

HB19-17 : THE STATE vs HEROLD MOYO Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE Ruled By: KAMOCHA J and TAKUVA J

HMA45-19 : THE STATE vs THOMPSON MACHINGURA Ruled By: MAWADZE J and ASSESSORS: NISH and GWERU

HMT42-19 : AGNESS CHIGWADA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT43-19 : THE STATE vs MICHAEL MUNAPO Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HMT48-19 : THE STATE vs VICTOR DINGA Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

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Law Portal
Zimbabwe

HH206-18 : THE STATE vs ROBERT TEVEDZAYI
Ruled By: TSANGA J and ASSESSORS: KUNAKA and JEMWA

HH233-16 : THE STATE vs BRIGHTON MUKWACHA
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and CHAGUGUDZA

HB201-15 : THE STATE vs ROBERT NYONI
Ruled By: MAKONESE J

HMT16-18 : THE STATE vs CHARLES HOFISI
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and RAJA

HB175-18 : THE STATE vs STEVEN TSHUMA
Ruled By: MATHONSI J

HB124-17 : THE STATE vs FREDDY SHAVI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HH482-16 : THE STATE vs PHILLIP MASHAVA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

HH966-15 : THE STATE vs GARIKAI CHIPENI
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and GONZO

HB19-17 : THE STATE vs HEROLD MOYO
Ruled By: MAKONESE J and ASSESSORS: HADEBE and MOYO

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HMA45-19 : THE STATE vs THOMPSON MACHINGURA
Ruled By: MAWADZE J and ASSESSORS: NISH and GWERU

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT43-19 : THE STATE vs MICHAEL MUNAPO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MAWONEKE

HMT48-19 : THE STATE vs VICTOR DINGA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO