IN THE HIGH COURT OF ZIMBABWE
MAKONESE J with Assessors Mrs A. Moyo & Mr J. Sobantu
BULAWAYO 13 & 19 FEBRUARY 2020
K. Jaravaza for the state
R. Ndlovu & A. Ncube for the accused
MAKONESE J: On the 25th July 2017 at around 2200 hours and outside his residence at 631 Emganwini, Bulawayo, the accused shot and injured deceased. The accused made a report at ZRP Nkulumane. He alleged that he shot the deceased who had attempted to rob him as he was parking his motor vehicle outside his gate. The deceased was conveyed to Mpilo Hospital where he died on 29th August 2017. The deceased succumbed to a gunshot wound.
The accused has been arraigned in this court facing a charge of murder in contravention of section 47 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23). The state alleges that on the day in question and at 631 Emganwini, Bulawayo, the accused shot the deceased with a Norinco pistol on the right side of the rib cage intending to cause his death or realising that there was a real risk or possibility that his conduct may cause the death of the deceased.
The accused denies the charge. He admits shooting the deceased but raised the defence of self defence and defence of property.
The circumstances surrounding the offence are set out in a state outline which has been tendered into evidence and now forms part of the record. In brief, the 38 year old accused is a businessman operating a restaurant in the Bulawayo central business district. He runs other business concerns in the city. The deceased was aged 43 years at the time he met his tragic death. The state alleges that on the 25th of July 2017 at around 2100 hours the deceased confronted the accused at his gate at 631 Emganwini, Bulawayo accusing the accused of having a love affair with his estranged wife, one Jacqueline Moyo. The accused who was parked outside his gate and was in the company of the deceased’s wife then pulled out his pistol and shot the deceased once on the right side of the rib cage. The deceased died on 29 August 2017 from the gunshot wound.
It shall not be necessary to repeat the entire contents of the outline of the state case. The accused filed a fairly detailed defence outline in support of his defence. It shall be necessary to set out the accused’s defence outline in detail. He averred as follows:
2. The accused will state that on the 25th July 2017 around 2200 hours he arrived at his residential house (number 631 Emganwini, Bulawayo) from a prayer meeting and parked in front of a gate. As usual and as a security measure he had telephoned his house maid to open the gate for him when he was less than a kilometre away from his house.
2.1 Accused had about US$2 200 in his person of which he had intended to buy a stand with. The only person who knew that the stand had not been bought is accused’s manager Stewart Nyathi.
3. He will further state that less than a minute whilst waiting for the gate to open and as his nephew was opening the gate, two people attempted to open the driver’s doors but failed because they were locked. Sensing danger accused then drew his pistol which was in between his thighs and cocked it. At that moment accused’s attention was quickly drawn to the third person who opened the front passenger door. This person happened to be the now deceased. Upon opening the front passenger door the deceased demanded some money, further stating that accused had a lot of money, at the same time attempting to get into the car.
4. The accused realised that he was on the verge of being attacked and robbed. He then accelerated swinging his vehicle to the right.
5. The accused will further state that the vehicle moved some metres and as the deceased tried to reach for his gun in a bid to disarm him, accused then pulled the trigger and deceased got shot on the lower part of the body and fell to the ground. Accused proceeded straight to Nkulumane Police Station where he made a report.
6. He will further state that he was accompanied by police officers back to the scene where they found deceased still lying on the ground the other assailants were nowhere to be seen. The police called an ambulance and deceased was taken to hospital.
7. The accused will vehemently deny the charge of murder or intentionally killing the deceased. He will maintain that:
(a) He shot the deceased in self defence and defence of property, having been accosted by character he subjectively and personally believed intended to harm and rob him of his valuables. The shooting took place at the spur of the moment after accused’s attempt to speed off had not helped him.
8. The accused will further deny that he was in the company of anyone in the car and let alone deceased’s wife. He will deny ever having a love affair with the deceased’s wife and will maintain that she was merely his employee and nothing else. Accused will further contend that the allegation that he was in the company of the deceased’s wife was “cooked” by the deceased and his accomplices after being charged with the offence of attempted robbery.
9. The accused had parked for not more than a minute in front of his gate when the deceased and his accomplices pounced, a clear indication that they had not been following accused’s vehicle, but had laid an ambush at the gate.
10. Accused will also contend that had the deceased survived he would have been prosecuted for the attempted robbery.
11. The accused further notes that the post mortem report indicates that the primary cause of death was “septic shock” and “septic lacerated spinal cord”. Considering the prompt report to the police and the immediate medical attention given to the deceased, one should reasonably expect that the infection could have been avoided or eliminated at the hospital.”
The state tendered into the record a post mortem report compiled by Dr Sanganayi Pesanai at United Bulawayo Hospitals on 30th August 2017. The pathologist carried out an examination of the remains of the deceased and concluded that the cause of death was:
- Septic shock
- Septic lacerated spinal cord
- Gunshot wound
On marks of violence the pathologist observed a gunshot wound satured and healing on the right lateral part of the chest on the 7th intercoastal spine. It was noted that the bullet had gone through from left to right, top to bottom. There was no exit wound. The post mortem report was filed under PM number 820/819/2017.
The State case
The state led oral testimony from three witnesses before closing its case. The first to testify was STEWART NYATHI. The witness was employed as a manager by the accused at Fish and Chicken City, Bulawayo at the relevant time. The deceased’s wife was also employed at Fish and Chicken City by the accused. The witness was known to the deceased during his lifetime. His evidence was essentially that he was requested by the deceased to trail the accused person, whom he suspected of having an illicit love affair with his (deceased’s) wife. On the 24th of July 2017 and at around 2130 hours and after knocking off from work, the witness in the company of the deceased and Leeroy Malunga trailed the accused’s motor vehicle. The deceased’s wife had been spotted boarding the accused’s vehicle. Along the way, they lost sight of accused’s vehicle and they decided to meet the following day. On the 25th July 2017 the witness teamed up with the deceased and Leeroy Malunga. They followed the deceased’s wife in a hired taxi driven by Leeroy. At some point they observed deceased’s wife board accused’s vehicle. The witness and his companions drove behind the accused’s vehicle at a safe distance. When they got to the accused’s house at Emganwini, they stopped the vehicle some distance away. The deceased asked to be dropped off indicating that he was going to confront the accused. The witness and Leeroy drove away. When asked to explain why they chose to drive away, the witness stated that he did not want his employer to know that he had been trailing him. It is common cause that the confrontation between the accused and the deceased led to the tragic death of the deceased. The circumstances surrounding the death of the deceased are not known to this witness. He was unable to shed light on what transpired after he had left Emganwini. This witness confirmed that the day after the shooting he was invited to the police station. He was informed that he was a suspect in a case of attempted robbery involving the accused. The witness was taken to court on initial remand. As events unfolded, a decision was taken that this witness was a witness on the murder charge now before this court. The court found that the evidence of this witness was of little assistance in proving the guilt or otherwise of the accused person. The witness was subjected to extensive cross examination by counsel for the accused. It became clear that the witness had an axe to grind with the accused. He testified that he was unhappy that the accused no longer listened to him and preferred to protect the deceased’s wife. The witness stated that when he set out to trail the accused and the deceased’s wife his intention was to correct his employer and to make him “feel some pain”. As already alluded to, we found the evidence of this witness extremely unhelpful. In fact his evidence, left more questions than answers. The witness knew that the accused was armed and that he routinely carried a loaded pistol. The witness knew that deceased was walking into a dangerous situation. And yet the witness found nothing wrong with that whatsoever. The witness knew that it was not safe to approach the accused at that time of the night at the gate and yet he simply left the deceased to resolve such a delicate issue on his own. It was put to the witness under cross examination that they were out to rob the accused person that night and that they lay an ambush for him at the gate. The witness denied that they set out to rob the accused. The court finds that such an allegation is not supported by any evidence. That however, leaves the state with the accused’s version as to what transpired at his gate as the only version upon which the case against the accused must be proven.
The state then led viva voce evidence form LEEROY MALUNGA. This witness is a friend of the last witness. He was also known to the deceased. He was introduced to the deceased by Stewart Nyathi. He operates a taxi service in the city. On the 24th July 2017 he was advised that deceased intended to trail his wife whom he suspected of having an affair with the accused. Stewart hired his taxi to trail accused’s wife. Leeroy’s version of what occurred on the first day is somewhat different from the testimony of the first witness. This witness gave the impression that they trailed a commuter omnibus on the first day. They realised that they were trailing the wrong vehicle and they abandoned the exercise. On the second day Leeroy stated that they indeed followed the accused’s motor vehicle. The deceased confirmed that his wife had boarded the accused’s vehicle. They were not mistaken about the occupant in the accused’s vehicle. They followed accused’s vehicle. When they got to Emganwini the witness testified that he stopped his motor vehicle just before they got to the accused’s residence. The deceased indicated that they should drop him off and he would confront the accused. The witness drove his motor vehicle, a Honda Fit, away from the scene. He confirmed that he did not drive up to the accused’s gate as alleged in the state outline. The court found the evidence of this witness to be straight forward, but again of little assistance to the court. The witness did not witness the shooting incident. He decided to leave the scene together with Stewart. The evidence of this witness did not assist the state case. The witness was initially a suspect in a case of attempted robbery. He was subsequently made a witness for the state in this case. The police suspected that the deceased had been the victim of a love triangle. The difficulty in the state case is that both Stewart and Leeroy left the scene before the shooting. In fact, they did not get to the accused’s front gate. They parked some distance away and then drove off.
The last witness for the state was CHARLES NYAMUKUBVA. He is an Assistant Inspector in the Zimbabwe Republic Police with 13 years experience. At the relevant time he was based at Nkulumane Police Station. He was the attending detail. He visited the scene of the shooting after a report had been made by the accused. The accused had reported a case of attempted robbery. Accused alleged that as he was at his gate he had been accosted by two assailants. The accused said he had shot one of the assailants in an act of self defence. He was carrying some cash in his car and believed that he was being robbed. The witness in the company of Constable Takura and Matemararo attended the scene. Upon arrival the witness observed the deceased lying on the ground next to a gravel road. The deceased was in pain. He was lying a few metres from accused’s residence. The deceased was writhing in agony. The deceased only managed to utter the words “Ungibulele”, meaning “he has killed me”. The witness assured the deceased that he would be attended to. There was blood coming out of his mouth. He advised the deceased not to speak as he could see he was in pain. The witness observed that the deceased had a bullet wound on the right side of the chest. The witness checked the deceased’s pockets and recovered a mobile phone belonging to the deceased. He observed that the deceased had been in communication with the two state witnesses prior to the incident. Initially, the witness believed the accused’s version of attempted robbery. The first two witnesses were arrested and taken to court on allegations of attempted robbery. As more details began to emerge it became clear that the deceased might have been at the centre of a love triangle. On the 27th of August 2017 the deceased died from injuries sustained from the single gunshot wound. The accused was placed under arrest on allegations of murder. He maintained his defence of self defence and defence of property.
The evidence of the last state witness was of a formal nature. The witness was not contradicted in any material respects under cross examination. In fact, counsel for the accused did not subject the witness to extensive cross examination. The witness confirmed that when he attended the scene, the accused did have some cash amounting to about US$2 300. The witness also confirmed that he recovered one spent catridge from accused’s motor vehicle. The accused”s firearm was licenced. There was no dispute that accused had shot the deceased at close range. What is not clear are the circumstances under which the firearm was discharged. The witness conceded that he had no evidence to rebut the accused’s defence of self defence. He confirmed that the accused made a report at ZRP Nkuluname soon after the shooting.
The evidence of Dr Sanganayi Pesani was admitted into the record of proceedings by way of formal admissions in terms of section 314 of the Criminal Procedure and Evidence Act (Chapter 9:07). With that, the state closed its case without adducing further evidence.
The accused ORICIOUS MOYO, elected to give evidence under oath. He resides at 631 Emganwini, the scene of the shooting incident. He is a businessman. He operates Fish and Chicken City in Bulawayo. He is also into transport and other businesses. He was not known to the deceased during his lifetime. The deceased’s wife was in his employ at the relevant time. He denied having an extra marital affair with the deceased’s wife. The accused is known to Stewart Nyathi who was his manager and confidant. He averred that he trusted Stewart and took him as a younger brother. Stewart and Jacqueline Moyo (deceased’s wife) were workmates. The accused adhered to his defence outline. He maintained that on the fateful day he was at a prayer meeting at Pumula South. Sometime after 2200 hours he was driving to his residence at Emganwini in his Toyota Vista motor vehicle. When he was about a kilometre away from his house, he phoned his maid instructing her to open the gate. The accused stated that as a security measure the gate had to be opened by the time he arrived at the house. He was carrying some cash in the vehicle. His gun, a Norinco pistol was placed between his legs. As he approached the gate three men accosted him. One pulled the left passenger door and managed to place his body inside the car. Accused states that he was struck with fear and believed he was being robbed. Immediately, he pulled out his pistol with one hand while pushing away the deceased. The accused admits that he shot the deceased in the right side of his chest area. The deceased who was clinging to his motor vehicle fell to the ground upon being shot. Accused drove to Nkulumane Police Station where he lodged a report of attempted robbery. Accused denied that he was in the company of the deceased’s wife or any other person at the time of the shooting. He denied having a love affair with the deceased’s wife. The defence closed its case without leading further evidence.
Analysis of the evidence
The only evidence for the state that could remotely link the accused to the offence is that of Leeroy and Stewart. Even if the court accepts that the accused was in the company of Jacqueline Moyo during that night, such evidence does not assist the state case. There is simply no evidence from any other independent witness on how the deceased met his death. Counsel for the state, Mr Jaravaza indicated that deceased’s wife was interviewed by the police and denied that she had an affair with the accused. Further, and more crucially she denied having been in the company of the accused on the day of the shooting. The state was therefore evidently seriously handicapped in that the only person who could have shed light on what actually transpired between the accused and the deceased was deceased’s wife. She chose not to co-operate with the police. The accused’s version therefore, remained uncontroverted at the end of the trial. Counsel for the accused, Mr R. Ndlovu drew this court’s attention to the celebrated case of R v Difford 1937 AD 370 which sets out the principle that an accused bears no onus to prove his defence. The cardinal rule is that no onus rests on an accused to convince the court of the veracity of any explanation which he may give in his defence. The accused is required to give an explanation which is reasonably possibly true. A court may only convict an accused person if it is satisfied that, not only that is his explanation improbable, but that it is beyond reasonable doubt false. A heavy onus is placed on the state to prove its case beyond reasonable doubt to eliminate the possibility of convicting an entirely innocent person.
The defence of self defence and defence of property
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). The defence of self defence is a complete defence and provides as follows:
“(1) Subject to this Part, the fact that a person accused of a crime was defending himself or herself or another person against an unlawful attack when he or she did or omitted to do anything which is an essential element of the crime shall be a compete defence to the charge if:-
- where he or she did or omitted to do thething, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; and
- 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
- any harm or injury caused by his or her conduct –
- was caused to the attacker and not to any innocent third party;
- was not grossly disproportionate to that liable to be caused by the unlawful attack.
2. In determining whether or not the requirements as specified in subsection (1) have been satisfied in any case, a court shall take due account of the circumstances in which the accused found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.”
These principles were applied and re-affirmed in several cases in this jurisdiction, including; State v Herold Moyo HB-19-2017 and State v Manzonza HMA-02-16.
In his book, A Guide to the Criminal Law of Zimbabwe, at page 45, the author G. Feltoe states as follows:
“The law provides that a person is entitled to take reasonable steps to defend himself against an unlawful attack. Harm, and sometimes death, may be inflicted on the assailant in order to wade off the attack.”
It is settled law that the test for self defence is an objective one. In other words, the court must consider what a reasonable person in accused’s position would have done taking into account the specific circumstances of the case. The courts must not take an arm chair approach where the defence of self defence is raised. The courts must determine what a reasonable person in accused’s situation would have done to repel an unlawful attack in defence of his person or property. An unlawful attack means any unlawful conduct which endangers a person’s life, bodily integrity or freedom.
The provisions of section 255 of the Criminal Code are equally relevant to the circumstances of this case. It is provides as follows:
“If a person genuinely and on reasonable grounds, but mistakenly, believes that he or she is defending himself or herself or another person against an unlawful attack, he or she shall be entitled to a complete or partial defence in terms of this Part to any criminal charge in all respects as if his or her belief were in fact correct.”
When the court is faced with a situation where there is doubt as to what happened in a particular case, the doubt must be resolved in favour of the accused. See the remarks of SANDURA JA (as he then was) in Edward Chindunga v The State SC 21/02 where he states;
“…In my view, the appellant gave a reasonable explanation of what he did during the night in question. That explanation cannot be rejected out of hand.”
See also; S v Kuiper 2000 (1) ZLR 113 (S) and S v Manyika 2002 (2) ZLR 103 (H).
The accused person’s defence is that he believed that he was under attack from assailants who intended to rob him. The accused person has given an explanation which has not been rebutted by the evidence adduced from state witnesses. His explanation has not been proven to be false or improbable. There are gaps in the evidence of the state case. The only version on what led to the fatal shooting is the accused’s version. The allegations against the accused are largely speculative. The state allegations did not discharge the burden of proof to prove its case beyond a reasonable doubt. When all the evidence has been assessed, we are satisfied that the state failed to prove its case, and consequently we find the accused not guilty on the charge of murder.
Verdict: Not guilty and acquitted.
National Prosecuting Authority, state’s legal practitioners
R. Ndlovu & Company, accused’s legal practitioners