MAFUSIRE
J:
[a]
Introduction
[1]
On 16 August 2016 the accused struck and killed the deceased. He was
charged with murder. He pleaded self-defence. A trial ensued over two
days. Only two witnesses gave oral testimony: the deceased's wife,
Jennifer Mushandu [“Jennifer”], and the accused himself.
[2]
Initially, the State had lined up five witnesses. They were Jennifer;
one Julius Gavure [“Julius”]; Tendai Mutovo [“Tendai”], the
accused's wife; the police investigating officer, and the medical
doctor who conducted the post mortem examination on the deceased's
body and compiled a medical report.
[3]
The State abandoned plans to call Tendai. She was not a compellable
witness. The evidence of Julius, the police officer and the medical
doctor was admitted without objection.
[4]
In closing submissions, after the trial, the State abandoned the
charge of murder. It pressed for a conviction on culpable homicide.
Here is our judgment.
[b]
The Facts
[5]
The facts were largely common cause, or uncontroverted, either
because both the State and the defence agreed to them, or they were
not challenged by the one side when the other side presented them, or
because there was some convergence on some aspects of the evidence of
Jennifer and the accused. Areas of conflict will be indicated along.
[6]
On the fateful day, the accused, a brother-in-law to the deceased,
fought at a beer drink. They were separated by other imbibers. Each
went their separate ways. Soon after, the deceased came back to the
beer place. Jennifer was following behind. She was remonstrating
with, and dissuading him from pursuing the accused.
[7]
At the beer drinking place, the deceased demanded to see the accused.
He was holding a knife. Jennifer denied the deceased had been holding
a knife at that stage. But, in the summary of her evidence, it had
been stated in part that the deceased had shown the patrons at the
beer place the knife that he had been carrying. Furthermore, Julius'
summary of evidence that was admitted without objection, stated among
other things, that he was the village head; that he had been present
when the deceased and the accused had fought earlier on; that when
the deceased had come back a little while later with Jennifer
following behind, he had tried to stop him, but that the deceased had
produced a knife.
[8]
When he was told that the accused was not at the beer place, the
deceased left for the accused's homestead. Jennifer followed.
Accused's homestead was surrounded by a wooden fence. There was
only one entrance. The deceased entered. Jennifer remained standing
outside. She said as a sister-in-law to the accused, it was contrary
to cultural norms for her to have entered the accused's yard.
[9]
The accused saw the deceased entering his yard and holding a knife.
It was a flick knife, 24cm long. The blade alone was 11.2cm long. It
weighed 0.085 kilogrammes. The knife had been flicked open already.
The accused ran inside his kitchen hut for shelter. The deceased
followed. The accused came out running. His wife, Tendai, came out
too. She was remonstrating with the deceased who was her
half-brother.
[10]
The accused ran behind his bedroom hut and sought shelter behind a
tree. The deceased followed. He thrust the knife towards the accused
but missed. The accused ran towards a scotch-cart that was parked
between the kitchen and the bedroom. The deceased followed. He chased
the accused round that scotch-cart twice. Again he thrust the knife
towards the accused. Again he missed. Tendai continued to plead with
the deceased. He threatened to attack her if she persisted.
[11]
Initially, in her evidence-in-chief, Jennifer said as the deceased
chased the accused round the scotch-cart he was holding a knife.
However, in cross-examination she denied that he had been at that
stage holding a knife. She claimed it was inside the pocket of his
jacket.
[12]
The accused ran out of the yard and towards the entrance to the
homestead. It was the only escape route. As the accused opened the
wooden gate to get out, the deceased caught up with him. It was from
this moment on that there were serious conflicts in some aspects of
the evidence.
[13]
The accused's version was that the deceased lunged forward and
thrust the knife at the accused. He missed. The momentum brought him
down. But though it missed the accused's body, the knife caught the
accused's shirt and tore it. The accused pulled off the shirt
hurriedly.
[14]
The accused said once outside the gate, he ran towards the goat-pen.
It was some twelve metres away from the entrance. The deceased got up
and came after him. He chased the accused round the goat-pen twice.
[15]
The accused randomly picked a log from several of them at the
goat-pen. The log, when measured and weighed subsequently, turned out
to be 1.56 metres long and 1.815 kilogrammes in weight.
[16]
On the other hand, Jennifer's version on that point was that she
did not see the episode by the gate where the deceased had lunged
forward and thrust the knife at the deceased. But she admitted the
deceased had been following the accused “…still holding the
knife.” She admitted at some stage the deceased had fallen down and
that when the accused had come out of the homestead he had no shirt.
She said she did not know why. Even though she denied seeing the
deceased trying to stab the accused, she admitted later on that he
had missed. “Missed what”, asked State Counsel? “He just fell
down”, she replied.
[17]
Around the goat-pen, Jennifer said the accused was walking briskly,
not running, but with the deceased following behind.
[18]
Regarding the crucial moment when he struck and killed the deceased,
the accused said after picking the log, his hope had been that the
deceased would realise that he was now armed and so would relent.
However, the deceased had continued to come after him. It was only
when the deceased had caught up with him again that he turned round
and struck him with the log, once on the head. He claimed he had
become exhausted and could run no further or no more.
[19]
This version is consistent with that in his warned and cautioned
statement that was recorded some three days after the incident. He
wrote: “I then picked a log which was at the goat pen and continued
running away holding it [my emphasis]. He kept chasing after me for a
distance of about 40 metres. I then stooped, turned back and struck
him once with a log on his head and he fell down to the ground.”
[20]
On the other hand, Jennifer, at first, in evidence-in-chief, said
after picking up the log, the accused turned round to face the
deceased, shouting; “Now I am going to kill you!” Seeing that the
log the accused had now armed himself with was a more dangerous
weapon than the knife the deceased was holding, she and Tendai,
despite initial misgivings about touching a shirtless brother-in-law,
physically pushed the accused back for some thirty metres or so.
However, the accused overpowered them. At that moment the deceased,
whose fall earlier on had stalled him, arrived. The accused struck
him a single blow to the head. The deceased fell down and lay still.
The accused shouted, “You will die for nothing!” He then threw
down the log and just walked away.
[21]
Led by State counsel, Jennifer said there had been ample opportunity
for the accused to have continued running away from the goat-pen. She
said he could have run along the road that passed through the area,
or entered the nearby bush. She denied that the accused could have
been so exhausted as to have been unable to run away any further.
[22]
Under cross-examination, the accused claimed that after leaving the
scene, he had walked some seventy kilometres to the police station to
make a report.
[23]
From the post mortem report, the cause of death was massive head
injury and intracranial bleeding.
[24]
After all her evidence, but before she was excused, State counsel
asked Jennifer if the accused had paid compensation for the death of
the deceased. Her answer was a flat no. However, in cross-examination
on this point, she admitted that he had paid “misodzi”, a form of
compensation under traditional African custom. This was in the form
of five head of cattle. Four had been retained by the deceased's
extended family. The fifth had been slaughtered for food at the
funeral.
[c]
The Law on Self-defence
[25]
A person who is the 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 it is
imminent, is not unlawful.
[26]
By an unwritten social contract, the State takes it upon itself to
protect private citizens from unlawful attacks by others. In return,
the citizens refrain from retaliating, or resorting to self-help, or
to private vengeance, as these threaten good order and the rule of
law.
[27]
However, since it is not altogether possible for the State's law
enforcement agencies to be always around each and every citizen to
render the necessary protection round the clock, the law allows, out
of necessity, private citizens to take the law into their own hands
and resort to self-help to quell the unlawful attack by any means
necessary, including killing the assailant. But concerned with the
need to preserve human life, and to avoid indiscriminate killing
under the guise of private defence, most legal systems impose some
restrictions on the defence of self.
[28]
In Zimbabwe, self-defence is governed by section 253[1] of the
Criminal Law [Codification and Reform] Act, [Cap 9:23] [“the
Code”]. It reads:
“[1]
Subject to this Part, the fact that a person accused of a crime was
defending himself or herself or another person against an unlawful
attack when he or she did or omitted to do anything which is an
essential element of the crime shall be a complete defence to the
charge if –
[a]
when he or she did or omitted to do the thing, the unlawful attack
had commenced or was imminent or he or she believed on reasonable
grounds that the unlawful attack had commenced or was imminent; and
[b]
his or her conduct was necessary to avert the unlawful attack and he
or she could not otherwise escape from or avert the attack [emphasis
added for discussion later on] or he or she, believed on reasonable
grounds that his or her conduct was necessary to avert the unlawful
attack and that he or she could not otherwise escape from or avert
the attack; and
[c]
the means he or she used to avert the unlawful attack were reasonable
in all the circumstances; and
[d]
any harm or injury caused by his or her conduct -
[i]
was caused to the attacker and not to any innocent third party; and
[ii]
was not grossly disproportionate to that liable to be caused by the
unlawful attack.”
[29]
The above requirements are conjunctive, not disjunctive. In other
words, a person pleading self-defence must meet all of them in order
for the defence to be available to him as a complete defence.
If
not, and in terms of section 254 of the Code, the person may escape a
verdict of murder but may be convicted of culpable homicide. In other
words, if it is shown that the accused did, or omitted to do anything
that is an essential element of the crime of murder, he shall be
guilty of culpable homicide if all the circumstances for self-defence
are satisfied except if the means he used to avert the unlawful
attack were not reasonable in all the circumstances – for example,
hitting back instead of running away, if he could.
We
have reached a verdict.
[d]
Reasons for the verdict
[30]
Jennifer's testimony was riddled with contradictions. We found it
unsafe to rely on it. A few examples will suffice:
(i)
She denied the deceased was holding the knife when he entered the
accused's yard. Yet, according to Julius, and even in the summary
of her evidence, by the time the deceased came back to the beer
place, with herself following behind, he had already pulled out the
knife. Furthermore, she later on conceded that as he chased after the
accused out of the yard, the deceased was still holding the knife.
(ii)
She did not see the deceased lunging at the accused and thrusting the
knife. She did not see the knife catching the accused's shirt. She
did not see how and why the deceased had fallen down. But she
subsequently admitted that the deceased had missed. She was vague
about what it is he had missed.
(iii)
The picture that she graphically painted in her evidence-in-chief was
of the accused picking up a log from the goat-pen, turning back to
face the deceased and announcing his intention to kill him, which he
instantly proceeded to fulfil. However, she conceded in
cross-examination and, in the process, corroborated a crucial aspect
of the accused's evidence, that he did not immediately confront the
deceased after picking the log, but that he had continued to move
away from the deceased.
(iv)
She nearly misled the court that the accused had not paid some form
of compensation for the death of the deceased.
[31]
In this matter, virtually all the material facts are common cause.
They are these:
(a)
The deceased was armed with a dangerous and wicked weapon.
(b)
The deceased was determined to use that weapon. He did try, not once,
not twice, but three times. The third time was too close. The knife
tore up the accused's shirt.
(c)
The accused was constantly running away, with the deceased in hot
pursuit. For example, he ran away from his hut. He ran round his
bedroom. He ran round his scotch-cart, not once, but twice. He ran
completely out of the yard and of the homestead enclosure. He ran
round the goat-pen outside the homestead, not once, but twice.
Finally,
he picked and armed himself with a log from the goat pen, at least to
try and balance the odds. Even then, he did not immediately turn to
confront the deceased. But the deceased was undeterred. He continued
to come after the accused.
[32]
The accused said he had become exhausted. That was when he had
eventually turned round and struck a single blow on the deceased's
head. Unfortunately, it had proved fatal.
[33]
After the third thrust of the knife by the deceased, there can be no
telling what could have happened on the fourth and/or subsequent
times. Probably, the accused might not have been the one in the dock,
but the one in the box. Conversely, the deceased might not have been
the one in the box but the one in the dock.
[34]
We discount some aspects of Jennifer's evidence, denied by the
accused, on the basis of self-interest. We do not blame or condemn
her. She was the deceased's wife. Not unnaturally, she seeks
retributive justice. But even the State, in the closing submissions,
fairly concedes that there was a “… tinge of exaggeration …”
in her evidence because she had tried to tone down the deceased's
own role. Furthermore, early in her evidence-in-chief, State counsel
had had to remind her that it was common cause that her husband had
been the aggressor. He had to caution her that there was no need to
try and defend him posthumously.
[35]
In addition to the aspects pointed out above, we have further
discounted Jennifer's evidence for self-interest, and for being
incompatible with probability, on the following aspects:
(a)
that she and the accused's wife, at the crucial moment, pushed the
accused away and thereby bought him enough time to escape;
(b)
that the accused ought to have continued to run away along the road
or to enter a nearby bush;
(c)
that after grabbing the log from the goat-pen, the accused had turned
round and confronted the deceased, shouting; “Now I am going to
kill you!”
(d)
that after striking the fatal blow, the accused had shouted to the
deceased, who had fallen down and gone limp; “You will die for
nothing!”
[36]
Undoubtedly, except for paragraph [b] of sub-section [1] of section
253 of the Code, that says that the accused must have believed, on
reasonable grounds, that his conduct was necessary to avert the
unlawful attack and that he could not otherwise escape from or avert
the attack, there is no debate on all the other elements of
self-defence. They have been completely satisfied.
[37]
But even with paragraph [b] above, we believe the law is not exacting
an impossible standard of human behaviour. Armchair criticism of an
accused's reaction many days, or weeks, or months or even years
after the event, and in the comfort of the courtroom, and which
ignores the exigencies of the occasion, is to be avoided.
The
accused is not to be judged as if he had both the time and the
opportunity to weigh calmly the pros and cons in the sudden emergency
created by the unlawful attack: see Union Government [Minister of
Railways & Harbours] v Buur1.
The
law does not demand a detached reflection in the face of an up-lifted
knife: see Brown v United States2.
[38]
In applying the requirements of self-defence to the flesh and blood
facts, courts adopt a robust attitude. They do not seek to measure
with nice intellectual callipers the precise bounds of legitimate
self-defence; see S v Ntuli3
and S v Banana4.
[39]
The import of paragraph [b] is that self-defence ceases to be a
complete defence if the accused could have run away to avert the
attack on himself and to avoid killing the deceased. But obviously
this duty to retreat or flee is insisted upon only if it is possible
or safe to do so, without exposing oneself to even greater danger.
A
man is not obliged to gamble with his life by exposing himself to the
risk of a stab in the back: see S v Steyn5.
The
law will excuse him if by killing his assailant, he secures his own
safety, if there is no other way.
[40]
In S v Zakalala6
the deceased, supported by a number of friends, launched a murderous
attack on the accused with a long knife. The accused avoided two
thrusts of the knife by dodging and jumping over a bench. They were
in a crowded beer-hall. To repel a further attack, the accused opened
a small pocket knife then in his possession and stabbed the deceased.
The
trial court dismissed the accused's claim to self-defence on the
basis that he had gone too far, and that if he had once jumped over
one bench, he ought to have kept on jumping over other benches.
However,
on appeal, the conviction was overturned on the basis that the
accused could not be obliged to have borne the risk of stumbling over
the other benches just in order to get away.
[41]
In the present case, the State says the accused should have continued
to run away.
The
accused says he had grown tired and could go no further. The State
says that is a lie because after striking the deceased, the accused,
per his own admission, still had enough stamina to walk a whopping
seventy kilometres to the police station to make a report.
[42]
However, there are some flaws in the reasoning by the State:
(i)
Firstly, the distance of seventy kilometres was just a thumb-suck by
the accused under a barrage of questions in the heat of
cross-examination, and was never tested for accuracy or
reasonableness. We find it unfair to hold it against him.
(ii)
Secondly, that he was tired and could run no further away from the
unrelenting and prolonged pursuit at the goat-pen does not mean that
afterwards he could not have walked that long distance to the police
station. Walking freely at one's own pace is different from being
forced to run for fear of an attack, especially after what the
accused had been through.
(iii)
Thirdly, in terms of sub-section [2] of section 253 of the Code, in
determining whether or not the requirements of self-defence have been
satisfied in any given case, the court is obliged to take into
account the circumstances in which the accused finds himself,
including any knowledge or capability he may have and any stress or
fear that may have been operating on his mind [my emphasis].
[43]
Applying this particular requirement for self-defence to the facts of
this case, we note the following:
(a)
The accused was a person who, for the greater part of the time, had
been running away from a murderous brother-in-law;
(b)
He was a person who had run for shelter into his own kitchen but who
the unrelenting deceased had dislodged him from there;
(c)
A person who each time he put distance between himself and his
assailant, the latter would always catch up with him;
(d)
A person whose shirt had been caught by the third thrust of the
knife;
(e)
A person whose wife and the deceased's wife, the only people
present at the crucial moment, had been totally ineffective in
restraining or remonstrating with the deceased;
[44]
What guarantee then, in his subjective state of mind, did the accused
have that he was now going to outpace the deceased if he had
continued to run away from the little barrier that the goat-pen had
provided?
[45]
The State, basing on Jennifer's jaundiced opinion, argued that the
accused should have aimed the blow away from the head; admittedly a
delicate part.
However,
as already been stated, the accused, under such circumstances, should
not be adjudged as if he had the opportunity and the time to weigh,
with mental calmness, the pros and cons in the sudden emergency. We
are satisfied by his explanation that he just swung the log and
struck the deceased indiscriminately.
[46]
To convict under such circumstances would bring the law and the
justice delivery system under ridicule. The standards of behaviour
set by the law must be attainable. The accused was entitled to defend
himself in the manner he did. The deceased was the author of his
demise.
[e]
The Verdict
[47]
The accused is found not guilty of murder, as charged, or of any
other offence. He is hereby discharged.
14
July 2017
National
Prosecuting Authority, legal practitioners for the State;
Mutendi,
Mudisi & Shumba, legal practitioners for the first accused, pro
Deo
1.
1914 AD 273, at p 286
2.
256 USR 335 at p 343
3.
1975 [1] SA 429 [A] at p 437E
4.
1994 [2] ZLR 271 [S] at p 274F – H
5.
2010 [1] SACR 411 [SCA], para 21
6.
1953 [2] SA 568 [A]
