Zivanai Kurarama v The State

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HH 275/13
CA 549/12
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ZIVANAI KURARAMA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAVANGIRA J

HARARE, 24 April 2013 & 15 May 2013

IN CHAMBERS IN TERMS OF S 35 OF THE HIGH COURT OF ZIMBABWE ACT, [CAP 7:06]

MAVANGIRA J: The accused was arraigned before the magistrate at Kadoma on a charge of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] it being alleged that on 21 June 2010 at Rimaunga Estate, Macheke, the appellant unlawfully caused the death of Christopher Rice either negligently failing to realise that the death might result from his conduct or, despite realising that death might result from his conduct, negligently failed to guard against that possibility.  He initially pleaded guilty but his plea was later changed to one of not guilty.  He was then convicted after a trial and sentenced to 6 ½ years imprisonment of which 3 ½ years imprisonment was suspended on condition of future good conduct.  He now appeals against both conviction and sentence.

The Attorney General has filed a notice in terms of s 35 of the High Court Act, [Cap 7:06] that he does not support the conviction for the following reasons.

The charge against the appellant arose from a fight that occurred between the appellant and the deceased during which fight the appellant repossessed his firearm from the deceased and assaulted him with it on the chest whereupon the deceased fell down and was found dead the following day.  The appellant stated in his defence outline that he saw the deceased stealing wire.  The deceased assaulted him first and they stated fighting.  He asserted that the deceased was the aggressor.

Section 16 (1) (c) of the Criminal Law (Codification and Reform) Act [Cap 9:23] provides that:

“(1) where negligence is an element of any crime.

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Constituted wholly or partly by a consequence resulting from the conduct of an accused person or by the existence or absence of any circumstances in which such conduct occurred the test is objective and falls in two parts.

Whether or not the accused failed to realise that his or her conduct might produce the relevant consequences or that the relevant circumstance might exist or be absent and

If the accused did fail as provided in subs (i) whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances.

Would have realised that the relevant consequence might be produced and would have guarded against it.

Would have realised that the relevant fact or circumstance might exist or be absent and would have taken steps to ascertain whether or not it did exist, as the case maybe.”

Negligence is an essential element of the offence of culpable homicide and in accordance with s 18 of the Criminal Law (Codification and Reform) Act, a court can only convict where the element of negligence is proved beyond reasonable doubt by the State.  In its reasons for judgment the court a quo stated that contributory negligence on the part of the deceased is no defence to a charge of culpable homicide.  However, as the appellant had not this statement by the trial court was out of place.  The court also stated that the accused should have foreseen that assaulting the deceased with the butt of a heavy gun on the chest was dangerous especially as he admitted that the chest is a delicate part of the body.  This statement did not appear to take into consideration the totality of the obtaining circumstances.  The court a quo ought to have applied part 2 of the object test provided in s 16.  It should have asked whether the appellant’s conduct was blameworthy in that no reasonable person in the same circumstances would have acted the way the appellant did.  However, due to the pan city of the evidence on record, the question remained unanswered.

It is also pertinent that the plea of self defence was not completely rebutted by the evidence adduced on behalf of the State.  In Phiri v The State, SC 190/82, FIELDSEND CJ stated:

“It is trite that one must assess the reasonableness of a person’s behaviour when he is acting in self defence, not in the rather rarefied atmosphere in court, but one must look even though objectively at the situation as it existed at the time and in relation to the particular person one is considering.”

Reference was also made to cases reitering the same approach.  S v Mukonto 1971 (2) SA 319 (AD) at 342 C, S v Ntuli 1975 (1) SA 429 (AD) at 437 E, Moyo v State SC 45/84.  Evidence to answer following issues ought to have been led the time when the offence was allegedly committed, visibility at the time of the commission of the alleged offence, the duration of the appellant’s fight with the deceased, the deceased’s physical built as compared to the appellant’s whether the appellant also sustained injuries as a result of the fight, whether at any given point during the fight the deceased got control of the gun, the weight of the gun, the part of the gun that was folded if any, the distance between the deceased and the appellant at the time of the blow, how the deceased was attacking the appellant at the time of the fatal blow, including whether he was using his hands or any weapon – this being of importance regard being had to the fact that they were fighting on a hill and according to the appellant at the relevant time the deceased was “on the upward side of the shape and the appellant was on the down ward side.”  The evidence should also have established whether the appellant had handcuffs which would have assisted in subduing the deceased.  Evidence on all these aspects would have assisted the court to establish whether the appellant ought in those circumstances to have realised that he was exceeding the bounds of self defence.  The trial court also ought to have, apart from the appellant’s proper can session that the chest is a delicate part of the body, applied its mind to the fluid situation that the appellant found himself in and made a value judgment of the situation obtaining.

It is also pertinent that a perusal of the court a quo’s reasons for judgment appears to suggest that the court a quo accepted most of the appellant’s evidence which was in fact corroborated by other evidence.  However for some unclear reasons the court did not accept that the appellant was under serious attach by the deceased.

On the evidence on record, doubt is further cast as to what in fact happened to the deceased between the time that he sought with the appellant and when he died.  The Investigating Officer suggested that there were struggle marks where the deceased’s body was found.  There was no probing as to the nature of the struggle marks imparticular whether they were suggestive of a possible second attack on the deceased.

The evidence on record fell short of proving the essential element of negligence on the part of the appellant.  It also fell short of completely rebutting the plea of self defence raised by the appellant.

In the circumstances the Attorney General’s decision not to support the conviction as conveyed in his notice is based on sound grounds.  For that reason the conviction and sentence cannot stand.

In the result, the conviction and sentence of the appellant be and are hereby set aside.

HUNGWE J agrees

Musunga & Associates, appellant’s legal practitioners.