The
accused is charged with murder.
At
the time of the crime he was aged 29 years; it being alleged that on
12 July 2014, at Village 35B, Magamba, Chief Saunyama, Nyanga, he,
with actual intent or realising the real risk or possibility that
death may result, stabbed Dunmore Matengeni with an Okapi knife
thereby inflicting injuries from which this said Dunmore Matengeni
died.
The
accused, whilst admitting causing the death of the deceased, stated,
in his Defence Outline, that the death occurred whilst he was under
an imminent attack from the deceased who had harassed him for quite a
considerable time prior to the stabbing. He pleaded self-defence and
implored this court to find him not guilty of the charge.
Most,
if not all, of the facts surrounding the events leading to the
stabbing of the deceased are not in dispute. They may be summarised
as follows.
In
2004, the deceased's father loaned a bovine to the accused as
draught power. On 12 July 2014, the accused and the deceased were at
a homestead attending to a beer drink. The accused had spent the
better part of the previous right partaking of the local brew. The
deceased joined the accused at some point during the beer drinking
jaunt. The deceased then raised the issue of the loaned bovine. This
led to a misunderstanding in which the deceased, who was at the time
of his death 22 years old, demanded that the accused pays him
compensation for the beast by allocating a portion of his land to him
or by pledging one of his daughters to the deceased.
Because
the matter became heated, the accused decided to leave for his
residence fearing that the argument might degenerate into a physical
tussle or confrontation. The deceased had, in his possession, an axe,
and appeared drunk. The accused decided to find someone to provide an
escort to him at his parent's home so as to deter the deceased, who
appeared bent on pursuing the matter with him, from being
belligerent. Upon arrival at his parents' home he secured the
escort service of his brother's two young sons. He explained his
predicament with the deceased to the young boys. True to his fears,
the deceased followed him up to his parents homestead and persisted
in his rowdy behaviour.
The
accused made a hasty departure in the hope of shaking the troublesome
deceased in the process. He went through a neighbour's residence.
The deceased caught up with the trio and picked up the quarrel with
the accused.
The deceased threatened, at this stage, to physically deal with the
accused. The accused left his parents' residence but when he got to
a nearby field, the deceased slapped the accused. The accused pleaded
with him to desist from his action as they were both drunk. When the
children tried to restrain the deceased from his aggressive
behaviour, he turned on them and threatened to unleash violence
against them. They fled in terror as the deceased was armed with an
axe.
What
happened thereafter is a matter of some dispute.
At
this point, the deceased, according to the accused, grabbed the
accused by the collar of his shirt and swerved his axe and feigned an
attack on him with the axe. The accused feared for his life. In order
to ward off the imminent attack, the accused drew his knife and
stabbed the deceased. The accused says he had aimed the stabbing blow
to the hand that handled the axe but missed and struck him in the
stomach area.
Questions
put to the accused during cross-examination by counsel for the State
appeared to be aimed at discrediting the version given by the accused
regarding how the stabbing took place.
In
our view, the only eye witness to the event, who is now the accused,
gave a reasonably possible explanation which the court cannot dismiss
as false. Had the State been able to lead evidence in rebuttal of the
defence version, then this line of cross-examination would have been
quite justified. In the absence of any such evidence contradicting
the accused, one must rely on the probabilities of the matter and
decide whether the accused's version is reasonably possibly true.
It was on that basis that we were unable to discount his version that
we decided that the version has not been challenged and therefore
remains as the truth in the matter. The court therefore accepts it.
That version is quite probable given the corroborative evidence led
from the 15 years old David Maenda.
David
Maenda confirmed to this court that the deceased had with him an axe
and had assaulted their father. When they had tried to restrain him
he turned on them and they fled in fear of the deceased.
When
they were a short distance away, they saw the deceased fall to the
ground and the accused stab him once on the thigh.
The
accused explained that the deceased tried to kick him despite the
stabbing blow to the body.
Even
if this was highly unlikely, we are of the considered view that the
accused's defence of self defence must be examined to determine
whether he has met the requirements of the law.
The
requirements for this defence are;
(a)
An unlawful attack;
(b)
Upon the accused or a third party where the accused intervened to
protect that third party;
(c)
The attack must have commenced or be imminent;
(d)
The action taken must be necessary to arrest the attack; and
(e)
The means used to avert the attack must be reasonable.
In
determining whether an accused has met the requirements for the
defence of private defence, it must always be borne in mind that the
trial court must avoid taking an armchair approach in the assessment
of the situation faced by the accused. It is easy, after the event,
and far from the dust of the conflict in which the accused was
involved, to find possible ways and means through which the accused
could possibly have averted the deceased's death.
(See
S v Manyekete
HS-386-81).
The
accused was faced with a drunk youngster who was a sheer pest on that
fateful day. He cautioned him about the folly of raising emotional
issues when they were both drunk and suggested that he approaches him
on another day when he was sober and away from the crowd. He also
decided to leave, and, indeed, left the beer drink - all in an effort
to avoid the deceased. He secured the escort of young relatives
hoping that their presence would act as a deterrent to the deceased.
He tried to calm him down by telling him that he was going home. All
these efforts did not pay off. Instead, he was attacked by an
axe-wielding drunk and aggressive youngster. When he was attacked he
was justified in taking appropriate self-defence measures.
Unfortunately, these measures put an end to a life.
In
S
v Mpofu
1969 (1) SA 334, the deceased attacked the accused with a knife. The
accused threw a stone at the deceased who was hit on the head and
died. The accused's plea of private defence was upheld.
In
our view, faced with an armed and persistent, aggressive, and a
drunken assailant, the accused was quite entitled to use the knife to
put an end to the threat confronting him. As such, the accused's
action is not unlawful.
He
is therefore found not guilty and acquitted.
