The accused pleaded not guilty to a charge of murder as
defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The State alleges that at Hartzell High School, Old Mutare,
Penhalonga, on 11 October 2008, with actual intent, or realising the real risk
or probability of death occurring, the accused stabbed Raynot Museta once on
the back with a screw-driver, thereby inflicting injuries from which the said
Raynot Museta died.
The following sequence of events is common cause or not in
serious dispute.
The accused's uncle was, at the time, the Headmaster at
Hartzell High School, Old Mutare. Although the accused had been employed as a
school teacher, by October 2008 he was no longer employed as such. Most of his
former workmates were still in the employ of the school. He interacted with
both students and teachers alike. On the day in question, he had been at the
class-room blocks together with his friend, one Charles Makadzange (“Charles”).
He had a misunderstanding with one of the students, Takudzwa Nyamangodo. After
this misunderstanding he and Charles Makadzange left and proceeded to his place
of residence.
What transpired after they got home is a matter of some
dispute.
There is agreement amongst the witnesses that the accused
had agreed to download music onto some media device provided by the two
students who had accompanied him and Charles Makadzange. On the other hand, he
says whilst he was engaged in the task, he decided to fix or repair an old
radio.
It is not in dispute, however, that he had locked himself
inside his house whilst Charles and the students remained outside by the
window. It is also common cause that whilst so occupied a group of students
descended onto the residence and knocked at his door.
The accused asked Charles to attend to the knock. The
emissary, Charles, came back and advised him that the students required his
presence outside. It is also not in dispute that the crowd of students was
outside. After some hesitation, he eventually came out to meet the crowd. The
crowd appeared agitated. There is no agreement as to how the discussion
proceeded besides what the accused himself told the court.
There is agreement, however, that the students were not
patient with the manner in which the accused was conducting himself with their
spokesperson. There is agreement, too, that one of the students, who was not
identified either by the State witness or by the accused, initiated an assault
on the accused by striking him with a weapon below the waist.
This led to the accused hitting back.
Thereafter, there was a melee as more students joined the
fracas. As to how this melee proceeded, there are various versions given
depending on where the narrator stood and his power of observation. The scene
was fluid, so were the events and the emotions.
Faced with this situation, the accused tried to fight off
the attack by striking wildly with the screw-driver which he had brought from
inside the house. That blow found its mark on the left back of Raynot Museta
and punctured his internal organs. Upon realising that the accused was armed,
the students broke up and fled from the scene. The deceased fell after running
a few paces.
He was later carried away, but it was clear, immediately,
that the blow was fatal as the deceased could not speak upon being rescued by
his fellow students. There is no dispute as to how the assault on the deceased
occurred.
On the one hand, the State alleges that when the accused
came out of the house, there was no indication that he was armed with a lethal
tool as a screw driver.
In our law, the defence of private defence, that is,
self-defence of third person and property is one which excludes unlawfulness
and excuses or justifies the actions of the accused.
G FELTOE, in his book A Guide to Criminal Law – Zimbabwe, explains that defence…, as follows;
“The law provides that a person is entitled to take
reasonable steps to defend himself against an unlawful attack or take reasonable
steps to defend another against an unlawful attack. Harm or even death may be
inflicted on the assault in order to ward off the attack.”
The requirements for the defence are:
(a) An unlawful attack;
(b) Upon accused, or upon a third party, where accused
intervenes to protect that third party;
(c) The attack must have commenced or be imminent;
(d) The action taken must be necessary to avert the attack;
(e) The means used to avert the attack must be reasonable.
In the present case, the accused was besieged by a group of
40-50 students whilst he was within his house. They called him out and engaged
him in an animated discussion. They formed a crescent shaped circle around him;
thereby closing his access to escape to safety should the need arise.
The situation was admittedly volatile and the students
initiated an attack on him without warning by a strike below the belt leading
to what a witness described as chaos and confusion.
The accused says he was felled in the melee that followed
and to rescue himself he accidentally used the screw-driver to ward off the
attack.
See S v Magoge 1988 (1) ZLR 163 (SC); S v Nicolle 1991 (1)
ZLR 211 (SC).
Even if the use of the screwdriver was not accidental; in
our view, the accused was entitled to resort to its use in the agony of the
moment. A group of 40 to 50 students threatened his own life. It was, in our
view, kill or be killed. He did not have the luxury of the opportunity to
decide how he was going to survive an attack with sticks and stones. The use of
the screw driver, in the particular circumstance of this case, was reasonable
in order for him to avert the ongoing attack.
In our view, his actions were justifiable and therefore
excusable and the defence of self-defence is available to him.
He is, accordingly, found not guilty and
acquitted.
