The State v Aliaster Kudzanai Nkomo

### Preamble
1
HMT 79-19
CRB 48/19
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THE STATE

versus

ALIASTER KUDZANAI NKOMO

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 8, 10, 17, 24 and 31 October 2019

Criminal Trial

ASSESORS:	1. Dr Sana

2. Mrs Mawoneke

Mrs J Matsikidze, for the State

D Tandiri, for the Accused

MWAYERA J: The accused is facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations are that on 21 January 2019 and at Catsiba Farm Chipinge, the accused unlawfully caused the death of Kozanayi Musekeya by shooting him with a rifle intending to kill Kozanayi Musekeya or realising that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Kozanayi Musekeya died.

The accused tendered a plea of not guilty to murder but guilty to culpable homicide. The limited plea to culpable homicide was not accepted by the State hence the matter proceeded to trial. The State presented evidence from 12 witnesses, 8 of whom had evidence accepted and formerly admitted in terms of s 314 of Criminal Procedure and Evidence Act [Chapter 9:07]. The other 4 witnesses gave viva voce evidence. The accused in turn testified in the defence case. From the totality of the evidence adduced and closing submissions filed by both the State and defence counsels Mrs Matsikidze and Mr Tandiri, the court has to decide on whether or not when the accused shot the deceased he had the requisite intention to kill the deceased. We must at this stage commend both counsels for the detailed and well reasoned closing submissions which complemented the professional presentation of both the State and defence case. We will now turn to look closely at the witness’s evidence and accused’s defence in a bid to determine whether or not the essential elements of the offence of murder have been established beyond reasonable doubt. See S v Milos Moyo HB 85/10 and also S v Lovemore Kurangana HH 267/17. It is settled both the physical and mental elements have to be proved beyond reasonable doubt for a conviction of murder to be sustained.

Trymore Masango’s evidence was basically that on the fateful day he together with the now deceased and Chenjerai Biriwasha stole macadamia nuts which they unlawfully harvested in the morning and planned to come back to collect their loot in the evening so as to accomplish their mission under the cover of darkness. The witness and colleagues managed to fill 1 and ¾ bags before being disrupted by security guards who manned Catsiba Farm. The witness observed 2 armed guards approaching and he alerted the deceased and Chenjerai Biriwasha. The trio took to their heels but the witness after running about 20 metres was apprehended by a soldier who turns out to be Tichaona Ncube the 6th witness. According to the witness, the accused chased deceased for about 50 metres and after about 2 minutes he heard sounds of a gunshot. The accused later came and advised the soldier that he had shot the deceased whom he left lying at Mrs Mapepa’s residence. The witness was then ordered by the soldier to take loot to Catsiba Farm workshop from where he was taken to the Police base. Whilst at the base he observed the deceased who was brought in injured and unable to walk although he did not ascertain the degree of injuries.

The witness told the court that he was prosecuted and sentenced for the theft of macadamia nuts. The witness gave his evidence well and did not seek to exaggerate. He pointed out that he knew the farm was guarded by soldiers but on the day in question when apprehended the soldier did not have army fatigue but a blue worksuit. He did not seem to have anything to hide as he recounted events of the day in question. He maintained that upon being apprehended Pardon Sabheka was not present. This was acceptable given the evidence that the security guards went for patrol in different directions and only converged after the apprehension of the witness and subsequent pursuit of deceased. Generally the witness impressed the court as credible.

Joyce Chimbira’s evidence was formerly admitted by consent. It was essentially to the effect that she heard gunshots and went out to investigate. She observed the 3 men standing 2 of them armed. The men were directing the deceased who was lying on the ground to stand up. Upon being threatened by the accused of harbouring criminals she went back to her farm.

Kenneth Mangena whose evidence was also admitted by consent was to the effect that deceased was lying on the ground crying that he had been shot and injured. The witness advised the deceased’s parents and they approached accused, Pardon Sabheka and Tichaona Ncube following which the deceased was taken to the police base.

Tellmen Sithole gave viva voce evidence in court. The witness resided at Derust Farm in which A2 farmers were resettled and that resettlement is adjacent to Catsiba Farm. His evidence upon approaching the scene tallied with that of Kenneth Mangena who called him to the scene. He pointed out that upon approaching the Sabheka family, accused admitted that he shot the deceased and thereafter deceased was ferried to the police base at 7pm and much later around 03:30am ferried to hospital. The witness was emotional when he walked the court over how his son the deceased was left unattended while bleeding profusely. He was further emotional when he narrated that the owner of Catsiba Farm Colonel Sabheka attended the funeral of the deceased in the company of uniformed and armed soldiers. His emotions were understandable given his child was shot and he died and the armed soldiers appeared as if they were adding salt to injury. The emotions however did not cloud his testimony on the material aspects. He was viewed as a sincere and credible witness.

Pardon Sabheka also gave oral evidence. He told the court that his father a colonel in the Zimbabwe National Army was the owner of the farm. The farm which the father took occupation of in 2004 was guarded by soldiers and civilian security guards. He recounted that on the day in question he together with Tichaona Ncube, a soldier and accused were patrolling the farm when they saw people who were stealing their macadamia nuts. They apprehended Trymore Masango and the other thieves escaped. The witness who appeared to be in control of the patrol team as evidenced by him saying he ordered the soldier Ncube to take Trymore Masango and the recovered loot to the warehouse within the farm. The witness told the court that thereafter thieves who had fled came back armed with machetes and other weapons demanding release of Trymore Masango and that prompted the accused to fire a warning shot and the thieves fled in different directions.

According to the witness they left the scene not knowing that the deceased had been shot. This is very difficult to accept given the admitted evidence of the witnesses who observed the armed men at the scene while deceased was already crying after being shot. Further the evidence of Pardon Sabheka on the shooting was unbelievable given he is the one who reported to Ncube the solider that accused had shot someone. The witness did not impress the court as sincere and genuine. He wanted the court to accept that there were a number of armed people who charged towards him and accused leaving them with no choice but was none committal on distances and circumstances of the charging. This created doubt on the veracity of his account. We understand as a son of the farm owner his inclination towards protecting the macadamia nuts and farm reputation would be high but certainty that should not have been overemphasised at the expense of truth and integrity. We viewed the witness as a dishonest man who was bend on hiding the truth.

The evidence of Tichaona Ncube the soldier who was on patrol was formerly admitted. It was essentially that he apprehended Trymore Masango and took him together with the loot to the farm house. He later heard gunshots and Pardon Sabheka advised him accused had fired the shot.

Also formerly admitted was evidence of Doctor Takunda Leonard Tawanda. The doctor observed a gunshot wound on the now deceased and he concluded there was a foreign body on the right lumber region of the deceased’s abdomen. He formulated an opinion that the deceased had sustained internal abdominal injury thus he referred the patient to Mutare Provincial Hospital for further management.

The evidence of Doctor Brighton Mutseyekwa confirmed the internal injuries. The doctor carried out surgical operation and retrieved a spent bullet in the interior abdominal wall. The bullet was tendered as an exh 2and it tallied with the rifle tendered as an exhibit and shot at the scene. Doctor Mutseyekwa observed the now deceased had a gunshot wound   haemopneumothorax, faecal peritonitis, multiple perforations of the small bowl and retroperitoneal haematoma.

The evidence of Gift Mureriwa was also formerly admitted. The witness a police detail attended the scene of the shooting. He recovered the 303 rifle serial number BK 1972. Maxwell Chaturuka is one of the witnesses who gave oral evidence in court. The witness as an investigation officer narrated how he went about the investigations. According to the witness he attended the scene and invited the accused and witnesses to make indications which culminated in him drawing a sketch plan which was tendered as an exhibit by consent. The witness confirmed that the deceased was shot on the right buttock “bum” and that the bullet head was retrieved from the deceased’s body. He also recovered the rifle used and tendered as an exhibit before the court. The witness’s evidence was clear and straight forward and he gave his evidence in a manner beyond reproach.

The last witness to give oral evidence was Admire Mutizwa a member of ZRP CID Department Forensic Ballistics. The witness who examined the firearm, spent bullet and spent cartridge exh 1 (c) explained the Ballistic Report which was tendered as exh 1. It was clear from the witness that the spent cartridge produced was for another firearm not the rifle exh 1 (a). The firearm however matched the spent bullet exh 1 (b) which we know from State witness inclusive of Doctor Mutseyekwa was imbedded in the deceased’s body after the shooting. The witness made it clear that the firearm tendered in court was functional and that it had been manufactured after 1900 as such clearly standardised. The witness’s evidence was not contentious and we were impressed by the witness as a candid witness. That the spent cartridge did not match the rifle was not viewed as weird as evidence was placed on record that the shooting on the fateful day was not isolated. The shooting was one of the many shootings at the farm as soldiers and guards were used to firing different firearms to scare away thieves. The spent cartridge of the rifle was not recovered but the firearm was fired as evidenced by the spent bullet retrieved from the abdominal wall of deceased.

The last State witness Doctor Aisa Serrano Comez’s evidence was formerly admitted. The doctor examined the remains of the deceased and observed the multiple injuries outlined in the post mortem report exh 3 by consent. The doctor concluded cause of death was haemorrhagic, bowel rupture and paravertebral muscles rupture caused by a gunshot in the back side. The doctor also observed significant condition of injury of the body being lumber spinal cord fracture and abdominal sepsis signs.

The accused in turn was the only witness who testified in the defence case. He told the court that he stayed at Catsiba Farm with his uncle the owner. On the fateful day he together with the others received information that some people were stealing macadamia nuts from the farm. The accused and Tichaona Ncube were armed while Pardon Sabheka was not armed. They went in different directions following which Trymore Masango was apprehended by Ncube and Pardon Sabheka. Although the accused pointed out that he was not with the other two when Trymore Masango was apprehended he told the court that Pardon Sabheka told Tichaona Ncube to take Trymore Masango and the recovered macadamia nuts to the farm house. We were left to speculate on how they converged. The accused pointed out that he remained behind with Pardon Sabheka. The accused told the court that as they continued patrolling the macadamia fields a group of people armed with machetes and axes approached demanding release of Trymore Masango and the stolen macadamia nuts. In a panic mode the accused took one bullet from his pocket loaded then corked the firearm and fired one shot towards the direction where these people were coming from pointing the firearm downwards. The gang fled after the shot and the accused and Pardon Sabheka also fled from the scene. The accused insisted he fired a warning shot and that he did not know he had hit someone. He was only advised that he shot the deceased upon his return from the police base where he had accompanied his colleagues to hand over Trymore Masango and the recovered stolen macadamia nuts. After being notified by the deceased’s parents that is when they rushed where deceased was lying and the latter was conveyed to the police and finally to hospital were the deceased later died.

A close look at the accused’s version of events reveals that the deceased was shot when his back was to the accused. This was contrary to the accused’s version that the deceased and company were charging towards him armed with machetes and axes. If they were indeed charging towards him and he fired in the general direction of the group then deceased ought to have been shot from the front. The position of the shooting seems to confirm the first witness Trymore Masango’s version that after he was apprehended the accused pursued his colleagues who were fleeing and shortly after he heard a gunshot. The accused in his version pointed out that he panicked and fired a warning shot. However from the sequence of events there was no panic or acting at the spur of the moment for accused himself told the court that he actually took a bullet from his pocket, loaded the firearm, corked and then shot in the direction of the thieves not away or in the air as a warning. The accused in his testimony alluded to the fact that it was necessary for him to shoot the deceased because the deceased and colleagues had threatened. A close look at accused’s version and that of Pardon Sabheka on how the accused and colleagues is said to have charged towards them makes it clear that the alleged charging is fictitious. Clearly given the position on which deceased was shot one can safely deduce he was fleeing. Further, the accused himself pointed out he was friends with deceased and if he had seen it was him he would not have shot. This confirms the assertions that the deceased was not facing accused but had his back to the accused for if they were facing each other accused could have recognised him.

The self-defence raised by the accused in this case cannot be sustained. The defence is ably provided for in s 253 of the Criminal Law (Codification and Reform) Act. The section is clear that all the requirements have to be met for one to successfully rely on this defence. The requirements can be summarised as follows:

That there must be an unlawful attack which has commenced or is imminent.

That the conduct was necessary to avert the attack.

That the means used to avert the unlawful attack was reasonable in the circumstances.

That the harm caused was caused or occasioned to the attacker.

See S v Mudenda HB 66/15. In this case there is no evidence to show that the accused was under attack from the deceased or any other person, if anything the thieves on realising armed guards took to their heels, moreso given Trymore Masango had been apprehended and the loot macadamia loaded in sacks had been recovered. Even if one were to assume deceased and colleagues were resisting the attack of firing a firearm was grossly unreasonable and disproportionate to the harm sought to be averted. In fact the accused was under no attack at all especially from the deceased person whom he was well known to and could have recognised. Interestingly the machetes, axes and clubs which were said to have been welded by deceased and colleagues were not recovered from the scene. Not even a single one yet the deceased fell and lay on the ground after the shooting. Surely if he was armed the witnesses and even accused should have recovered his machete or axe within the deceased’s proximity. There appears to have been no attack on the accused. All the requirements of the defence of person or self as outlined in s 253 have not been met. In plethora of decided cases by this court that all requirements, have to be met for the defence to succeed has been emphasised. See S v Mabvumbe HH39/16, S v Mungeza HMT 1/18, S v Tafireyi Runesu HMT 37/12 and S v Best Sibanda HB 139/19.

In the present case the accused and other guards who were armed with firearms were under no threat or attack from thieves of macadamia nuts as evidenced by apprehension of Trymore Masango and fleeing of the other 2 who were in his company as supported by the entry point of the bullet the lower back.

The accused further sought to rely on the defence of property. The defence is provided for in s 257 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. For this defence to hold the following requirements have to be met. There has to be an unlawful attack which has commenced or is imminent, that the conduct used was necessary to avert the attack that the means used to avert the unlawful attack was reasonable in all circumstances and the harm caused is on the attacker and not grossly disproportionate to the attack sought to be waded off. In this case to start with, at the time of shooting the stolen macadamia nuts had already been recovered and had been ferried to the farm warehouse. This creates the impression that there was no property which accused and deceased were tussling or haggling over. Assuming the accused was protecting the rest of the macadamia field given the remote possibility of the deceased stealing by harvesting the whole farm the force used occasioning loss of human life is certainly disproportionate to the value of the macadamia nuts stolen. I ¾ bags of value $400-00 or of value of the macadamia nuts that could forcibly be stolen by the deceased. In the circumstances the assertion of defence of property crumbles as it cannot be sustained. Moreso given there were other ways open for recovering and protecting the property before resorting to killing a person. We generally viewed the accused as man bend on trying his luck in the face of clear evidence of his liability. His narration of the circumstances of the shooting was not only improbable but false given the bullet entry point.

From the totality of evidence adduced it is common cause that the accused shot the deceased causing injuries from which the deceased succumbed to death. It is also fairly clear from evidence that the deceased and two colleagues one of whom Trymore Masango stole macadamia nuts and upon return to collect were intercepted by accused and his colleagues. That the deceased was shot with his back to the accused is not in dispute. The question which arises in this case is, what is the degree of liability of the accused. The court is to look at the evidence adduced and come up with a conclusion whether the accused realised and foresaw the possibility of his conduct resulting in the death of the deceased and he persisted with that conduct or whether he did not foresee the possibility of his conduct leading to the death of the deceased but a reasonable man in his circumstances would have foreseen that possibility and guarded against it. In this case the circumstances clearly depict foresight of possibility of this conduct leading to death. The accused by his own admission stated he shot in the direction of people. It is apparent the deceased had his back to the accused a clear sign of surrendering and retreating. The accused did not shoot to disable a thief because the loot had already been recovered with one thief having been apprehended and deceased was running away. A warning shot to stop deceased from running away could have been fired in the air or ground or any other direction not directed to the target. The accused realised by shooting in the direction of deceased or people there was a real risk and possibility of death occurring. He none the less was reckless and persisted with his action thereby shooting and occasioning the death of the deceased. It is that recklessness despite realisation of risk which defines the legal intention. That realisation of risk and recklessness evinced in this case by shooting marks the defining line between murder with constructive intention and culpable homicide. The circumstances of this case are apparent that the accused was not under any threat or attack from the deceased when he fired at the deceased’s lower back. His conduct given the realisation and recklessness cannot be defined as negligent but falls squarely within the realm of dolus eventualis. See S v Mhako 2012 (2) ZLR 73 and State v Chifadza HMA 27/18.

In this case the facts proved by the State are that the accused who was armed was not under any attack at all from the alleged thieves when he fired and shot the deceased. The property sought to be protected had already been recovered and deceased was retreating. The accused himself confirmed the retreat by pointing out that if he had seen the deceased he would not have shot as they were friends. This confirms the state’s assertion that the deceased never charged at the accused or posed a threat. We are alive to cases cited by the defence counsel in which security guards guarding or defending property were convicted of culpable homicide. These cases by way of example Elisha Malune Tembo v The State, S v Kware S 85-93 and Mulenga v The People 1966 ZLR 118 are distinguishable from the present case in that the guards fired warning shots and when the culprits ignored, they shot negligently causing death of the deceased persons. In the present case the circumstances and evidence are not that the accused caused death of the deceased negligently by failing to realise that death may result from his conduct but that by firing directly at a fleeing suspected thief the accused realised that death may occur but despite the realisation was reckless as to the consequences and proceeded with his conduct of shooting at the deceased. Whereas the accused did not set out with an aim to kill and he proceeded to accomplish the mission for him to be held liable for murder with actual intention it is apparently very clear from the evidence that the accused when he engaged in shooting the deceased realised the real risk or possibility of death occurring but persisted with his conduct. The accused can therefore not escape liability for causing the death of the deceased with legal intention.

A lethal weapon, a firearm, was fired in the direction of human beings in circumstance in which the intention to kill and cause death is unavoidable. Such inference obviously being deducted from the nature of weapon used against a fleeing person in circumstances devoid of accused’s life being in danger. The realisation of the risk of death occurring and reckless persistone in the conduct brings out the intention.

The accused is accordingly found guilty of murder with constructive intention as defined in s 47 1 (b) of the Criminal Code.

Sentence

In reaching at an appropriate sentence we have considered all mitigatory factors submitted in accused’s favour by Mr Tandiri and we have also taken note of the aggravatory circumstances submitted by the state counsel Mrs Matsikidze. The accused stands convicted of a serious and prevalent offence. Precious human life was unnecessarily lost because of the accused’s overzealousness in protecting macadamia nuts. The sanctity of life, precious human life should not be understated at all. The right to life is a God given right which is constitutionally guaranteed as provided for in our Constitution. The accused used a lethal weapon, a fire arm to shoot the deceased over theft of few macadamia nuts which were recovered. The murder pits the arrogance of the rich over the poor. Life was taken away lightly under the umbrella of protecting property. His reckless conduct on the fateful day cost young life to the detriment of his family and society at large. What further aggravates the offence is the fact that after the shooting he left the deceased bleeding profusely unattended and chose to take the co-perpetrator thief and recovered macadamia nuts to the police station. Such conduct is appalling to say the least. Further in aggravation is the fact that despite knowing that he was not well experienced in firearms, he shot the deceased who had shown signs of surrender and retreat by running away. The offence is deserving of a custodial sentence. The courts have to send the message loud and clear that no one has a right to take the law into their own hands and resort to violence as a way of administrating instant justice. Certainly human life is more important than macadamia nuts. The power of the gun was resorted to in circumstances where it was not called for.

However, as we pass sentence we are alive to the personal circumstances highlighted. This is a bad case which depicts exploitation of the poor by the rich. The accused person shot the deceased to please those providing for him after the passing on of his mother. If Ncube a soldier was ordered by Sabheka Pardon to take Trymore Masango to the farm house, it is not farfetched that Sabheka Pardon ordered the accused to shoot. Moreso when one considers the accused’s age and personal circumstances, accused succumbed overzealously to peer pressure and shot the deceased. That accused is an immature adult is certainly a factor that we have to take as mitigatory. His conduct on the day in question accurately reflects the immaturity. Also in mitigation is the fact that we cannot ignore that those that allowed him to have the firearm in particular his uncle a Colonel in the Zimbabwe National Army contributed to the events of the fateful day by not ensuring that before tasking accused on the patrol and security duties he got the necessary training on the use of a firearm. In fact the uncle, his employer was shown to have been reckless by leaving guns accessible to anyone and by attending the funeral with uniformed and armed soldiers. Such facts reduce the moral blameworthiness of the accused. Having considered the circumstances surrounding the commission of the offence, matching the offence to the offender and while at the same time blending justice with mercy given the accused’s age there is need to pass a sentence that will not break but rehabilitates the accused. We feel a short imprisonment term is appropriate.

10 years imprisonment.

National Prosecuting Authority, state’s legal practitioners

Tandiri Law Chambers, accused legal practitioners