THE State V Ibrahim MISI

### Preamble
1
HB 87-19
HC (CRB) 90/18
XREF TONGOGARA CR 01/07/16
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THE STATE

versus

IBRAHIM MISI

HIGH COURT OF ZIMBABWE

MOYO J with Assessors Mrs C J Baye and Mr E Shumba

GWERU CIRCUIT 24 MAY 2019

Criminal Trial

M Ndlovu for the state

J Makiseni for the accused

MOYO J:	The accused person faces a charge of murder, it being alleged that on the 1st of July 2016 at Mutemeri village in Shurugwi, he unlawfully caused the death of Anesu Mutangamberi by striking him once on the head with an axe.

The following were tendered into the court record;

1.	the state summary

2.	the defence outline

3.	the accused person’s confirmed warned and cautioned statement

4.	the post mortem report

They were all duly marked.

The evidence of the following witnesses was admitted into the court record in accordance with the law

1.	Edmore Mashova

2.	Dhaisan Kunatsa

3.	Constable Bikwi

4.	Dr Roberto Trecu

Two witnesses gave viva voce evidence for the state, these were Eria Toendepi and Simbarashe Mpofu.  According to Toendepi’s account the deceased was assaulted at the accused person’s homestead and the deceased was the aggressor.  The deceased went to accused’s homestead, called accused to the gate, they then had a misunderstanding.  They had a scuffle with accused threatening deceased with stones and also throwing them and the deceased propelling stones from a catapult but then missing accused.

Later on, accused started running into the homestead with the deceased in pursuit, they ran around the hut in opposite directions.  They then met at the doorway of the kitchen.  Accused’s mother then held the two of them by her hands, accused loosened from his mother’s grip and then he struck deceased with the axe.

This witness confirmed that when they ran into the yard, deceased was the one pursuing the accused.  He said at the time accused loosened his mother’s grip and struck the deceased, deceased was also trying to loosen accused’s mother’s grip and go to the accused.

Simbarashe Mpofu’saccount, however is slightly different from Toendepi’s account on material respects.  He said that soon after accused had gotten out of the gate he saw accused running from the gate and deceased was in pursuit.  The deceased held his catapult.  Accused then went and picked an axe.  Accused’s mother grabbed deceased and told him to run away.

That is when accused struck deceased with an axe.  He said accused’s mother was between accused and deceased and deceased faced the mother.

This witness confirmed that the accused person used the back of the axe to assault deceased.  Under cross-examination this witness confirmed that deceased had threatened accused and that accused was fleeing the deceased.

Accused himself told the court that he had lent deceased his clothes which deceased was not returning and was then using in a manner that accused felt would cause them to be worn out.  Accused threatened to report the matter to the police.  Deceased started propelling stones at the accused who was inside his homestead, saying he wanted to beat up accused so that he had something of substance to report to the police and not the issue of clothes which was not important.

Deceased propelled stones using a catapult but missed accused.  He then came inside the yard and started chasing after the accused.  Accused came across an axe, picked it and stopped.  He then realised that deceased had a machete, when he raised it, accused then struck him on the head with the back of an axe.

The state witnesses say deceased was armed with a catapult and not a machete.  Accused says deceased raised the machete.  Accused says he ran picked an axe, stood and waited to see if deceased would be dissuaded by the axe but that deceased nonetheless advanced wielding a machete.

Accused’s version of the presence of the machete has not been disproved, for the state witnesses themselves give different accounts of what transpired before deceased was struck.  Toendepi gives an impression that accused’s mother held deceased while he was struck.  Simbarashe Mpofu gives an impression that accused’s mother just stood between the two, facing deceased.  However both witnesses confirmed that deceased was still trying to go for accused who then was armed with an axe.

Accused’s explanation that deceased had a machete cannot be dismissed as being improbable, unreasonable or false since it has not been shown to be so, and in any event the circumstances of the case could mean such was probable as deceased could not advance towards a man already armed with an axe when he did not have also a weapon to counter the axe.

In any event, even if, it were to be argued that deceased did not have a machete, deceased was still armed with a catapult, which is also a dangerous weapon.

In the circumstances it is our finding that

1.	deceased was the aggressor, he went to accused’s homestead to cause chaos.

2.	he did propel stones with a catapult at accused.

3.	he persistently chased after accused who was initially fleeing.

4.	as a last resort accused picked an axe and says for himself that he picked it and stood hoping that deceased would relent, deceased persisted causing the accused to strike him

5.	accused also used the back of an axe and not its sharp end.

It is the position of this court that a man can only do so much in a bid to avoid an assault.  The court notes that accused was at his home, so deceased was the one in the wrong place.

Accused tried to flee with deceased in hot pursuit.  The accused was 17 years at the material time and deceased was older. Accused was under threat by deceased’s conduct, it could have been his life or deceased’s life in the circumstances.  The deceased in the circumstances did push the accused person to the limit, the accused person was a minor at the material time, and this court should not take an armchair approach as to what he should have done.

It is difficult to sit here and rationalize what would go through the mind of a 17 year old who was pushed in the manner the accused person was.  He had to act in defending his own life.  SimbarasheMpofu under re-exam when asked if accused’s life had been in danger, he said accused could have fled and hid in the kitchen.  No one has the capacity to rationalize what would happen in the mind of an immature 17 year old who had been persistently molested by an older person.  This court is of the view that in the circumstances even running into the kitchen would not have removed the danger that accused felt he was in.  A reasonable man in accused’s circumstances, and of his age, would have hit back.

It is for these reasons that this court finds that the accused person did act in self defence on the date in question but that he did exceed the bounds of self defence in the circumstances.  The state counsel rightly conceded to this aspect.

It is for these reasons that the accused person will be found guilty of culpable homicide.

Sentence

The accused person is convicted of culpable homicide.  He is a first offender.  He was aged 17 years at the material time.  The deceased was the aggressor and accused acted in self defence but however exceeded the bounds.

Life is sacred, and these courts time and again emphasise the non-acceptability of the loss of life through violence.

In its case however, there are peculiar features in that accused was a minor, deceased was the aggressor, who relentlessly pursued the accused person, the, accused struck deceased while deceased was still advancing at him.  To an extent accused was expected to act to defend himself, it is only the extent of the act of defending oneself that the court has condemned.  We have already found that he was justified in acting in self defence but exceeded the bounds.  The two cases cited by state counsel are factually distinguishable from the ones before this court.  In those cases, accused persons acted in revenge, their lives were no longer in danger as they armed themselves after having removed themselves from the scene of the attack.  In this case accused acted while still under attack so that makes his case different from the ones cited.

In sentencing, the court looks at the circumstances of each case, there is no one jacket fits all approach.  Each case depends on its own facts.  In this case accused has the following weighty mitigation that;

1.	deceased provoked him and persisted

2.	that he fled to his homestead but deceased persisted

3.	that he armed himself when the attack was still on going and struck deceased as he advanced

4.	he was immature as a 17 year old and in fact had tried to escape deceased’s attack to no avail.

It is for these reasons that the accused person shall be sentenced as follows:

4 years imprisonment with 2 years imprisonment suspended for 5 years on condition the accused person is not within that period convicted of an offence involving violence, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

H Tafa and Associates, accused’s legal practitioners