THE State V Tafadzwa Mashoko

### Preamble
1
HB 50/22
HC (CRB) 09/22
---------


THE STATE

Versus

TAFADZWA MASHOKO

IN THE HIGH COURT OF ZIMBABWE

KABASA J with Assessors Mrs C.J Baye and Mrs L. Sithole

GWERU 26, 27 & 28 JANUARY 2022

Criminal Trial

M. Ndlovu, for the State

T. Militao, for the accused

KABASA J:	The accused is charged with murder, as defined in section 47 (1) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  He pleaded not guilty to the charge.

It is the state’s case that on 14th December 2018 at around 0700 hours, the deceased who was aged 23 was drinking beer with his friends at Hozi Business Centre in Silobela.  The accused who was also aged 23 arrived at the business centre, so did his brother, Bernard. The deceased confronted Bernard over an issue which had occurred the previous night.  Bernard decided to flee but the deceased gave chase and struck him on the head twice with a knobkerrie.  Bernard fell and the deceased wrestled with him, whereupon accused picked up a stone with which he struck the deceased once on the head.  The deceased fell unconscious, was ferried to hospital but succumbed to the injury that same day.

In denying the charge, the accused explained that Bernard had already warned him of the earlier altercation between him and the deceased.  When they saw the deceased at this business centre, he sought to diffuse any possible altercation by talking to one Edward, a member of the Neighbourhood Watch Committee.  The deceased and his friends who were armed with axes, machetes and knobkerries charged at him and struck him with a stone and a machete but he managed to escape.  He later met up with Bernard who had also been attacked.  He has no clue as to how the deceased sustained the injury which took his life.

To prove its case the state produced the accused’s confirmed warned and cautioned statement, the post mortem report and the stone which allegedly inflicted the mortal injury.  These were marked exhibit 1, 2 and 3 respectively.

The evidence of the following witnesses was also admitted in terms of section 314 of the Criminal Procedure and Evidence Act, Chapter 9:07: -

Phumulani Fuzane

Nkosana Chikwira

Welcome Dube and

Dr Roberto Lara Diaz

These witnesses’ statements which were admitted in terms of section 314 meant that this evidence was not in issue.  This being so because section 314 (1) provides that: -

“In any criminal proceedings the accused or his legal representative or the prosecutor may admit any fact relevant to the issue and any such admission shall be sufficient evidence of that fact.”

Phumulani arrived at this shopping centre with Nelson and there saw the deceased, Bezel and Edward Zvidza.  Shortly thereafter he saw the deceased chasing after Bernard and striking him on the head with a knobkerrie.  Bernard fell and the deceased continued with the assault using the knobkerrie, whereupon accused picked up a stone and struck the deceased causing him to lose consciousness.  The deceased was then ferried to hospital by Nelson.

Nkosana’s evidence proved that the scene was attended to on 14 December 2018 and witnesses’ statements were recorded on that same day.  On 20th December the witnesses were taken to the scene for indications, i.e., Edward, Nelson and Phumulani.

Welcome Dube identified the deceased’s body to Dr Roberto Lara Diaz who conducted a post mortem and concluded that the deceased died as a result of: -

1.	subdural haemorrhage

2.	skull fracture

3.	head trauma stone

Given these admitted facts we were of the view that the only issue was whether the defence of person was available as a complete defence to the accused.  Had the circumstances of the assault on the deceased been an issue, Phumulani Fuzane’s statement would not have been admitted into evidence in terms of section 314 of the Criminal Procedure and Evidence Act.

That said, the evidence of Edward and Nelson was by and large a repetition of what had already been admitted as fact with the admission of Phumulani’s evidence.

Edward was the one Phumulani saw when he arrived at the shops in the company of Nelson.  His evidence relating to how the deceased sustained the mortal injury was more or less as reflected in Phumulani’s statement.  The deceased was attacking Bernard with a knobkerrie and when Bernard fell the deceased got on top of him, that is when the accused picked up a stone and used it to assault the deceased.  Bezel, who had been in deceased’s company approached the scene and accused wanted to hit him with a knobkerrie but was disarmed by Nelson.

Nelson’s evidence was not materially different from Edward’s.  The deceased was assaulting Bernard with a knobkerrie when the accused hit the deceased with a stone.

It makes no sense to seek to discredit Edward and Nelson whose evidence was strikingly similar and dove-tailed with Phumulani’s account of events and yet Phumulani’s account was accepted as a correct reflection of what transpired and that is the essence of section 314 admissions.

Whilst issues were raised on whether Edward went to this business centre in the company of deceased and Bezel and Edward’s response to accused’s attempts to diffuse a potentially explosive situation, as well as when this stone was taken from the scene, these issues became a red herring in light of the evidence of Phumulani which was taken as fact.

Even if it were to be accepted that Phumulani’s statement was admitted into evidence as a result of an oversight by the defence, the fact remains that the striking similarity in these witnesses’ evidence could not possibly have been because they rehearsed their evidence.

This incident occurred around 7 a.m., it was daylight and these people were not strangers to each other.  They all were known to each other as people who reside in the same area and who go to the same business centre. 0700 hours is early morning and it is very unlikely that at such an hour that business centre would have had hordes of people milling around.

The suggestion that the witnesses who testified were in the deceased’s camp and so sought to falsely incriminate the accused did not make much sense.  This argument was also used to discredit the Investigating Officer, whose evidence primarily showed that whilst Bernard was evidently injured the accused was not.  This was also the testimony of Edward and Nelson.  This Police Officer was not known to both the accused and deceased but for some reason we were being asked to accept that he just decided to join forces with a camp which was out to falsely incriminate the accused.

If this was an issue of camps and one camp seeking to outsmart the other, why would Edward and Nelson narrate events which clearly revealed that the deceased was the aggressor and was unrelenting in his attack on Bernard forcing the accused to intervene?

We were of the considered view that the inconsistencies which the defence sought to argue were indicative of the fact that the witnesses were not credible, were of no great significance.  It was merely a splitting of hairs.

Edward and Nelson are much older compared to accused, Bernard and the now deceased.  One can describe them as father figures.  It is inconceivable that these elderly men would get themselves involved in a matter involving youths who were fighting over a $1,50 worth torch.  They were not even there that previous night when there was an altercation between Bernard and the deceased over this torch.

We were expected to accept that Edward ganged up and left home on the morning of 14 December 2018 with the deceased and others just so as to fight Bernard over a $1,50 torch?  If one were to believe that it means one can believe anything.

We were therefore satisfied that Edward and Nelson described the incident as they observed it and not as rehearsed or as a product of a fertile imagination.

This was not a boxing ring scenario where two protagonists were pitted together and the court was expected to award some points and declare one a winner and the other the loser.

The accused and his defence witness gave a totally different account of the events of this day.  They gave the impression that this was almost a war zone, with many people armed with machetes, axes and knobkerries baying for their blood.

If all these people had pre-planned an attack on the accused or on Bernard who had had an altercation with the deceased over a USD1,50 torch, would they not have caused the death of one or both of them?  Bernard’s account of what happened sounded like a movie script.  He was under heavy attack from deceased and 2 others and ran from the back of the shops under heavy pursuit.  In front of him, where he was hoping to seek refuge, was another mob coming for him, armed with all kinds of weapons and he says he ducked a stone and managed to flee?  The accused who supposedly could be the one he said he saw on the ground but did not identify who it was also managed to escape from that mob which was out to spill blood, a mob which included a member of the Neighbourhood Watch Committee who was both in stature and age superior to the two of them!

Granted, this happened in 2018, 4 years ago but both accused and Bernard could not have changed that much in these 4 years, so too Nelson and Edward.  Bernard is of a small stature and very youthful and accused is equally of slim built although tall. Bernard was 15 since he said he is now 19 and he managed to escape a mob of the description he gave? This, to us, sounded very improbable.

Granted, as was stated in R v Difford 1937 AD 370 and S v Kurauone HH 961-15 the court should not expect the accused to convince it as to the truthfulness of his story and equally such story should not be dismissed unless shown to be not only improbable but beyond doubt false.

Is the accused’s story as supported by Bernard improbable?  It sure is.  Was it shown to be beyond doubt false?  It sure was.

We are not in doubt that the accused was not out to fight when he went to this business centre.  He was for peace and even his approach when he sought to diffuse the situation spoke of one who was not out to fight.  He was actually a peace maker.

He got embroiled in this issue after Bernard was attacked.  Edward who could have diffused the situation appears to have just watched.  We are not told that anyone tried to rescue Bernard.  Bernard is the accused’s nephew and he was just a young boy in 2018.

Section 253 (1) of the Criminal Law Code, Chapter 9:23 provides that: -

“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 –

When he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent.

His or her conduct was necessary to avert the unlawful attack.

The means used was reasonable in all the circumstances and

Any harm or injury caused by his or her conduct –

was caused to the attacker and not an innocent third party

was not grossly disproportionate to that liable to be caused by the unlawful attack.

Subsection 2 goes on to say: -

“In determining whether or not the requirements 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.”

Turning to the facts in casu we found the following as proved: -

1.	Accused is Bernard’s uncle and Bernard was a young boy of about 15 in 2018.

2.	Bernard had had an altercation with the deceased the previous night and on the day in question Bernard had alerted accused to the issue.

3.	Accused tried to diffuse what he believed could turn out into a nasty situation.

4.	Deceased launched an attack on the accused’s nephew using a knobkerrie.  He did not relent even when Bernard took to his heels.

5.	Bernard fell and deceased got on top of him still assaulting him with a knobkerrie.

6.	Accused then picked up a stone whose size was not one to cause trepidation in anyone, and used that stone to hit the deceased on the head inflicting an injury from which the deceased succumbed to.

The court ought not to adopt an armchair approach and that is why the court is urged to look at all the circumstances.

It is our considered view that to argue that the accused ought to have tried to pull the deceased off his nephew as suggested by state counsel, is being unrealistic and adopting an academic approach to the matter.

The accused’s reaction was spontaneous, he reacted in the heat of the moment and his actions cannot in all honesty be considered unreasonable.

We feel compelled to say that it is very likely that it would have been Bernard who would have died had the accused not intervened when he did.  That knobkerrie was probably more lethal than the stone and to suggest that the accused’s actions would have been justified if the deceased had a firearm is a failure to appreciate what section 253 (2) expects the court to consider.

In S v Farai Kapenga and Anor HH 14-2018 HUNGWE J (as he then was) had this to say: -

“The question whether an accused can successfully claim the defence of private defence is determined by examining objectively the nature of the attack and defence to determine whether they conform to the principles of law that are set out above.  This means that each requirement of the attack and defence must be judged from an external perspective rather than in terms of accused’s perceptions and his assessment of the position at the time he resorted to private defence.  In applying this test, the court must be careful to avoid the role of arm-chair critic …. weighing the matter in the secluded security of the court room.  Instead, the court must adopt a robust attitude, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence.  See S v Ntuli 1975 (1) SA 429 (A) at 436 D.”

That said, to hold that the accused’s actions were unreasonable is to adopt an arm-chair approach.  The court would be guilty of living in some world of fantasy devoid of reality.

We are therefore of the considered view that whilst the accused sought to unwisely deny the charge completely, probably motivated by fear of accepting that he was the cause of deceased’s demise, the fact is we cannot ignore what was proved.

The defence of person is therefore available to him as a complete defence.

Consequently the state has not proved beyond a reasonable doubt that the accused’s conduct makes him criminally liable of murder or even the lesser offence of culpable homicide.

He is accordingly found not guilty and acquitted

National Prosecuting Authority, state’s legal practitioners

Militao Law Inc., accused’s legal practitioners