The State v Dennis Sachakaza

### Preamble
1
HMT 17-18
CRB 22/18
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THE STATE

versus

DENNIS SACHAKAZA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 18, 19, 21 September 2018 and 18 October 2018

Criminal Trial

ASSESORS:	1. Mr Sana

2. Mr Chipere

J Matsikidze, for the State

J T Fusire, for the defence

MWAYERA J: In this case precious human life was unnecessarily lost in circumstances were it would have been avoided. The right to religion as provided for in our Constitution was irresponsibly exercised to the detriment of the fundamental right to life. What occurred in this case lays bare the evils associated with religious extremism. In this murder trial the court is to determine whether or not the accused had the requisite intention to commit the crime of murder levelled against him.

It is alleged by the State that on 28 June 2017 at Gonouya Business Centre, Marange. The accused person unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct might cause death and continuing to engage in that conduct despite the risk or possibility, struck Aaron Makatare with an iron rod on the leg thereby inflicting injuries from which the said Aaron Makatare died. The accused pleaded not guilty to the charge and raised the defence of self-defence.

The summary of the State’s case was that on the day in question, the accused was approached by the deceased who was demanding his memory card. The accused did not have the memory card and an argument over the memory card and or payment of the value ensued. The argument culminated in fist fight. The two were restrained by the members of the public but within a short space of time they were at each other’s throats again.

This time the accused who had armed himself with an iron rod struck the deceased on the left ankle causing injuries from which the deceased later died. The accused upon striking and injuring the deceased on the ankle fled. The deceased was assisted by his brother and others who took him to a faith healer and eventually transferred him to an Apostolic shrine where the deceased subsequently passed on, about 8 days later. The deceased’s body was conveyed to hospital and then a Post Mortem Report was compiled revealing that the cause of death was severe anaemia secondary to compound fracture. I must mention that the Post Mortem Report was produced as exh 3 by consent.

Doctor Mamba Kasongo was one of the State witnesses who gave oral evidence. The doctor’s evidence was clear that as a result of being struck with an iron rod the deceased sustained a compound fracture. The injury occasioned on the tissue and bone caused severe bleeding from the deceased. The injury was occasioned on 28 June 2017 and up until passing on 5 July 2017 the deceased did not receive medical attention. The bleeding remained not clinically checked and thus causing shortage of blood leading to low haemoglobin culminating in severe anaemia causing death. The doctor proffered in his evidence that had the deceased been rushed for medical assistance, this is a death that would have been avoided by stopping the profuse bleeding. We found the doctor’s evidence to be highly credible as he simply stated professional facts.

The other State witness who gave oral evidence is one Gwinyai Mangena. The witness’s evidence was basically that he observed the accused holding a welding rod and when the witness advanced towards him, the accused fled leaving the iron rod. The witness then picked the iron rod and proceeded inside the durawall whereupon he observed the deceased bleeding from his ankle. He inquired from the deceased what had happened but he did not get an answer. The witness pointed out that earlier on both the accused and deceased came close to where the witness was welding iron rods for making burglar bars. He confirmed the iron rod used was similar to the one produced in court and he also told the court that both accused and deceased when they had a misunderstanding picked each an iron rod. The witness told the court that the deceased was the first to pick the iron rod during the scuffle in which the deceased was mainly attacking the accused.

The two were having a scuffle and the witness only arrived at 12 noon when the two had started the fracas. According to the witness the two engaged in a physical combat over a memory card and that the accused sustained a swollen face. Ultimately when the deceased was struck with an iron rod the witness was scared to get close because the deceased was bleeding profusely. The witness told the court that the deceased’s brother and relatives quickly rushed the deceased away to avoid arrival of law enforced agents and possible hospitalisation. The deceased was a member of the Apostolic sect and thus the brother and relatives did not want police involvement as this would inevitably lead to medical attention. The witness’s evidence was fairly straight forward and beyond reproach.

All the other 6 state witnesses’ evidence was not in dispute and was admitted in evidence in terms of Section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The accused testified in his defence case and he also adduced evidence from two witnesses namely Abraham Mafararikwa the village head and Willard Mangena. The accused was adamant that on the fateful day the deceased was the aggressor. He said it was the deceased who assaulted him over a memory card or monetary value of which the accused indicated he was waiting for the person with money to come then he would pay him. The deceased did not buy this and thus assaulted the accused forcing the latter to retaliate in defence of his person.

We must comment that the contents of the accused’s warned and cautioned statement which was produced as exh I by consent were consistent with the accused’s defence outline  and evidence in chief to a large extent. The accused also stated that he was drunk when the deceased attacked him and that at some stage his head and face was covered with the t-shirt he was wearing when he tried to flee from the accused who was unrelenting in his demand and attack over the memory card.

The deceased was armed with an iron rod which he used to strike the accused on the back. As soon as the accused managed to remove the t-shirt that was covering his head, the accused picked a similar rod as the one produced as an exhibit before the court and struck the deceased’s leg on the ankle in a bid to free himself from the impending and imminent assault from the deceased. The iron rod was tendered in court as exh 2 and it was 60 centimetres long weighing 730 grams per the certificate of weight tendered as exh 2 (a) by consent. Generally the accused impressed the court as an honest and credible witness.

Abraham Mafararikwa, the first defence witness told the court that his attention was drawn to the scene by some elderly women who quipped that he was there at the shopping centre as village head while the deceased and accused were fighting. He then proceeded to investigate and he found out that they had a misunderstanding over a memory card. The witness managed to restrain the two whom he ordered to appear at his court the following day. He even upon remonstrating with the two and upon hearing that the memory card was valued at only $6-00 encouraged the two to refrain from fighting each other over such a small amount and even offered to pay the $6-00 as he realised that accused was very drunk and was being beaten by the deceased. Just like all the other witnesses he concluded that the accused was very drunk because of the gait of the accused who could not properly stand as he could easily fall and could not fight back.

The witness left believing the deceased had understood that it was best they resolved the matter the following day since the accused was very drunk. When the fatal and final blow was struck, he had already left believing the two had understood him. The accused’s shoes had been confiscated by the deceased who was not willing to return same until he got paid for the memory card. The witness later learnt of the subsequent fight and death of the deceased. Given the incident happened at a shopping centre and that the witness left the two thinking they had taken heed of his advice one cannot find fault in the witness’s testimony because he was not there throughout to observe the on goings and scuffle between the accused and deceased. He went to the shops for purposes of buying his family grocery items.

The witness told the court that when he went to the scene before the fatal attack he saw Willard Mangena standing in between to restrain. To this extent the witness’s evidence differed from Willard Mangena’s version in that Willard Mangena said he did not see the witness there. We found no reason why the village head Mafararikwa would lie that he restrained the two that is accused and deceased. This would not in any manner assist the accused but if the witness was manufacturing evidence he would have bolstered that he observed the accused being struck first with an iron bar and that he retaliated. The witness if anything was very credible. He just like the State witnesses confirmed that accused and deceased were involved in a scuffle over a memory card and that the accused was very drunk such that he could not properly stand and was being beaten by the deceased and unable to fight back.

The second witness Willard Mangena was highly excitable. He sought to spice and exaggerate his testimony. He was none committal to having been following up the deceased and accused during the scuffle but at the same time sought to persuade the court to accept that he observed everything that happened. He also on realising he had been placed at the scene by Mr Abraham Mafararikwa pointed out that Mr Mafararikwa was not at the scene. The witness was not consistent as he on one breathe pointed out he tried to restrain the two and on another breathe sought to portray himself as a mere observer. However, his evidence tallied with the first defence witness’s evidence and state witness’s evidence in so far as the deceased and the accused engaged in a scuffle over a long period of time at the shopping centre, hoping from one place to the other. Further it was clear from his evidence that the accused was very drunk. Just like the state witness Gwinyai Mangena the second defence witness told the court that the deceased was the aggressor and first one to pick an iron rod following which the accused also picked an iron rod which was later used to strike the deceased’s leg. Generally the witness Mangena impressed the court as an irresponsible village tout who seemed amused in the fight such that he followed and encouraged the fight without taking positive steps to stop the assault of accused until the time of the blow by accused in retaliation. It was only upon realising the two had injured each other as evidenced by the flow of blood that the witness distanced himself. In his excitement at watching the violent encounter he probably did not see Mr Mafararikwa whom we have no reason to disbelieve.

From the totality of the evidence, what remains for the court is an analysis of the evidence given the issue at hand. The question is whether or not given the defence of self-defence raised the state has discharged the required onus of proving beyond reasonable doubt that the accused unlawfully and intentionally caused the death of the deceased.

The defence of self-defence raised by the accused is provided for in s 253 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it states:

“(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 complete defence to the charge if

(a) 	when he or she did or omitted to do the thing, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and

(b) 	his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or 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

(c) 	the means he or she used to avert the unlawful attack were reasonable in all the circumstances;  and

(d) 	any harm or injury caused by his or her conduct

(i) 	was caused to the attacker and not to any innocent third party;  and

(ii) 	was not grossly disproportionate to that liable to be caused by the unlawful attack.”

It is apparent from the wording of the section that a person pleading self-defence must meet all the requirements in order to succeed with reliance on self-defence as a complete defence. This obtains from the wording of the section on the requirements which are clearly conjunctive and not disjunctive. If all the requirements are satisfied, then self-defence is available as a complete defence (underlining my emphasis). The rational being that in circumstances when one is under unlawful attack they are entitled to resort to force to avert such an unlawful attack provided the action taken to protect another is within the ambit of the requirement outlined in s 253 which can be briefly summarised as:

there must be an unlawful attack

the attack must be imminent or have commenced

the conduct must have been necessary to avert the attack and one could not otherwise escape from the attack

the means used to avert the attack must have been reasonable

the harm directed to the attacker must not be grossly disproportionate to the harm that would have been received or occasioned.

See S v Mabvume HH 39/16, S v Muchairi HB 12/13 and also S v Mudenda HB 66/15. Clearly any harm or damage inflicted on an aggressor in the course of an unlawful or imminent attack is not unlawful. S v Ncube SC 58/14.

In this case the common cause aspects are that the accused was very drunk on the day in question. Further the accused had a memory card belonging to the deceased. The deceased, a member of the apostolic sect, whom we can only surmise that he did not partake of alcohol aggressively sought to recover his memory card. In any event none of the witnesses testified that the deceased was drunk. Witnesses actually pleaded with him not to assault and hurt the accused who was in a drunken stupor. It is also not in dispute that the deceased and accused had a scuffle for a very long time. In most cases the accused would fall from the beatings. It is also common cause that the deceased was not relenting on his demand for the memory card even after being restrained by fellow villagers and the village head. The deceased had even stripped off the accused shoes in lieu of the memory card. As the struggle continued, it is apparent the deceased was the first to arm himself with an iron rod which he used to strike on the accused’s back. The accused in a move to repel the attack also armed himself with an iron rod which he then forcefully used on the deceased’s ankle. It is not in contention that the deceased sustained a compound fracture as a result of the blow from the accused. This happened on 28 June 2017 and the deceased passed on 5 July 2017 at the apostolic sect shrine. It is common cause that following the tissue and bone injury the deceased bled profusely. Further it cannot be disputed that the deceased never got clinical or medical attention soon after the injury as he was whisked away to a prophet then later to the Marange Apostolic shrine where he eventually died. The cause of death in simple terms is severe loss of blood which occasioned severe anaemia.

The sequence of events clearly does not show that the accused set out with an aim to kill the deceased and proceeded to do so. It cannot be inferred from the evidence that when the accused struck the deceased on the ankle death was substantially certain. Going by the manner in which the deceased carried on assaulting the accused and finally the deceased arming himself with an iron rod which he used to strike the accused the reaction of the accused in arming himself with the same type of rod cannot be viewed as unlawful as such action was taken to repeal an unlawful attack on him by the deceased. It cannot be deduced that by retaliating in the manner he did, striking the ankle to defend himself the accused foresaw the risk and or possibility of death occurring. Going by the manner in which the scuffle ensued and unfolded the accused had to defend himself from the vicious and protracted attack by the deceased. Relating the requirements of the defence of self-defence to the facts of this matter, the following observations are worth mentioning. The accused who was very drunk was under an unlawful attack by the deceased albeit demanding his memory card had no legal justification for assaulting the deceased. The attack was protracted as the deceased kept pursuing the accused. The deceased finally armed himself with an iron rod and he grabbed the accused whom he struck on the back. On trying to free himself the accused ended up covered on the head and face by the t-shirt which he was wearing as he struggled to take it off so as to escape from the grip of the deceased. When finally he regained visibility he picked a similar rod to the one used to attack him and struck the deceased on the leg precisely the ankle. At the time of striking the deceased was still on him and the accused had no other way of escaping other than wade off the attack by the deceased. The means used to avert the attack in this case cannot be said to be disproportionate to the attack which was prevailing. The accused had no other way of escaping as all efforts to restrain the deceased were futile and the deceased persisted with this attack demanding the memory card. The accused delivered one blow to free himself and he did not persist striking the deceased which buttresses that when he struck the deceased it was in self-defence from an unlawful attack. All the requirements of the defence of self-defence have been met such that the defence is sustainable. It would be anomoulous and erroneous to stretch the mind to the possibility that the accused negligently caused the death of the deceased. Clearly the accused was entitled to defend himself and he did not exceed the limits of self-defence warranting the attainment of him having negligently caused the death of the deceased. The question of intention has been discarded for murder with actual intent and or legal intention given the need to wade off the unlawful attack and equally when the accused struck it was to defend himself in warranted circumstances such that one cannot impute intention even to assault. It has been established that a victim of an unlawful attack is entitled to defend themselves provided they defend themselves within the confines of the law. This is what happened in this case.

However, the anomaly of leaving the deceased’s brother one Joram Makatare, prophet Caleb Machodo and heads of the Apostolic shrine not account for the negligence of leaving an injured man bleed to death cannot escape the scrutinising eye of the court. The negligence of leaving a man bleed to death is so glaring that one wonders why in the 21st century with the fundamental right to life being emphasised people seek to lightly take away the life of others under the umbrella of religious extremism. In a case where death could have been avoided by clinical intervention to stop the bleeding, the family and relatives just left the deceased to die. That negligence which cannot be imputed to the accused appears to be the proximate cause of the death of the deceased. The negligent religious fanatics are sadly not before the court, suffices to comment that we only hope that in future sanity prevails so that such avoidable deaths do not occur given the advanced medical science is open for use by all. Sadly the court took judicial notice of the fact that only the vulnerable that is children and women are left to fate under the extreme religious umbrella while some leaders and men of the Apostolic sect wear spectacles which are a clear sign of prescription and medical attention. The religious extremists cannot escape liability of having exposed the deceased. This is moreso when one considers that soon after the fight the deceased was whisked away to avoid intervention of the law enforcement agency and the inevitable medical attention. As if that was not enough the deceased was left to bleed to death and the religious Apostolic extremists proceeded to the burial site to conduct burial of the deceased. It was by chance that the Police learnt of the allegations and the investigating officer Murambiwa Mukandiwa whose evidence was formerly admitted rushed to the burial site to retrieve the body. His evidence clearly confirms that the deceased was neglected and left to bleed to death. The witness observed that the injured leg was cast in wooden splinters while the wound was bleeding and casting bad odour. The neglect occasioned by belief that supernatural powers would heal the deceased culminated in the loss of precious human life. This negligence at the Apostolic shrine in Marange cannot be attributed to the accused.

The accused when cornered by the violent deceased defended himself in terms of the law as he is entitled to. He cannot be held criminally liable for the unfortunate eventual death of the deceased. See the State v Tafirei Runesu 37/12 where Mafusire J in discussing the law of self-defence stated at p5:

“A person who is the victim of an unlawful attack is entitled to resort to force to repel such an attack. Any harm or damage inflicted on the aggressor in the course of such an attack or when it is imminent is not unlawful.”

These words resonate well with what happened in this case. The accused lawfully exerted force to avert an attack on himself.

The deceased having been the aggressor appears to be the author of his demise which was propelled by himself, his brother, family, the Apostolic prophet and Apostolic shrine leaders who negligently failed to have the deceased clinically and medically attended to so as to stop the bleeding which occasioned low haemoglobin leading to exsanguination and related hypovolemic shock associated with the severe anaemia. The negligence of the religious, fanatic extremists is the proximate cause of the deceased’s demise.

Accordingly the accused is found not guilty and acquitted.

National Prosecuting Authority, State’s legal practitioners

Legal Aid Directorate, accused’s legal practitioners