THE State V Gerald Tshuma

### Preamble
1
HB 166/25
HCBCR 4279/25
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THE STATE

Versus

GERALD TSHUMA

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 7 AND 8 OCTOBER 2025

Assessors: Mr Mbizo

Mrs Tshuma

Criminal trial

V. Moyo, for the state

J. Chiradza, for the accused

NDUNA J: On 14th September 2023, the accused stabbed the deceased thereby causing his death at Progress Kiosk, Purpose Mine Esigodini. The events of the day are in dispute. The court will outline the evidence received in the trial.

The state started the case by calling one Portia Ngwenya. Her evidence was that she runs a kiosk at the mine in question. On the day she was about to shut down her business. She observed the accused who was seated with one Dedani Moyo. She sat as the two were at her back. At some point she turned and observed that the accused was stabbing the deceased. She awoke her husband who was the second state witness. She did not see where the accused stabbed the deceased. The deceased was the first to arrive at her shop and sat on the veranda. She had heard they had earlier had a misunderstanding as they had fought at Balazini Compound. So when the accused arrived he suddenly stabbed the now deceased without any exchanges. So the only utterance she heard was by the accused when he uttered obscenities referring to the deceased’s mother’s vagina and stating that he would kill him.

The witness was cross examined and she stood by her evidence generally. She maintained that there was adequate lighting at the shop in question. Soon after the `accused had stabbed the deceased, he disappeared into the darkness.

The second state witness was Promise Mpofu. He is husband to the first state witness. He was awakened by the first state witness who advised him that the accused had stabbed the deceased. He went over to the seen and the accused took flight. He also maintained that there was adequate lighting of the place. The witness was adamant that the deceased was with Dedani Moyo only. He then sought for a motor vehicle to ferry the deceased to hospital. However, the procured vehicle, ferried the deceased for a very short distance and returned pronouncing that the deceased had died.

He also maintained his story.

The third and last state witness was Dedani Moyo. He was going to the shops to purchase what he wanted.  He met the deceased whom he requested to accompany him to the shops. As they went the accused sought to light his cigarette. He then proceeded to the counter. He had to look back and he saw the deceased and the accused seated very close to each other. The next thing he heard was screams and he turned and he observed the deceased lying down. The accused promptly walked into the dark.

The witness were cross examined on their evidence and they maintained what they had told the court in their evidence in chief.

The evidence of the two police officers was admitted by the consent of the accused. So was the evidence of the doctor. Save to note the accused was arrested in Gweru rural area after he had been on the run for all most  a week, there is nothing much to note the evidence of the two police officers and the doctor who did the post mortem.

The accused also took to the witness stand. He said that he was drinking his beer when the deceased came over to him. The deceased was aggressive as he allegedly kicked the accused’s beers.  He claims to have been kicked by the deceased and he fell down and lied on his back. He claims the deceased sat on his stomach and throttled him. He had produced a knife and wanted to stab the accused. He alleges to have hit him causing the knife to fall away. As the deceased had throttled him, and he was running out of breath, he claims to have picked the knife and stabbed the deceased on the leg. However, that stabbing did no help as the accused continued to hold tightly to his throat. He then stabbed the deceased on the chest. He then woke up and he fled form the scene.

His position is that all the state witnesses were not there and the evidence which they adopted from other persons.

The evidence of the state witnesses is quite strong and shows that the persons are speaking to what they observed. The accused would want to raise unrelated issues so as to destroy the authenticity of the evidence. Firstly, he wanted to make the court accept that all the three witnesses must have heard what they testified to. The witnesses did not exaggerate on their evidence. The first witness saw that the accused just arrived to where the deceased was and the next thing she observed was the attack on the deceased. She did not exaggerate in her testimony. She was a very good witness who had all the opportunity to exaggerate on what she saw; she did not so exaggerate. Even the second state witness, he spoke what he observed and did not exaggerate. Their story is contrary to what the accused would want the court to believe. Accused stated that he had to struggle with the deceased and the persons whom he claims were nearby did not attempt to apprehend him. This is extremely questionable conduct.

Even after the accused had run away; he chose not to report the matter to the police. He escaped to his home in Gweru rural area. That conduct is not commensurate with a person who had it that he had assaulted the deceased is self-defence.

The defence of self- defence is provided for in terms of section 253 of the Criminal Law Code. It provides as follows:

253 Requirements for defence of person to be complete defence

(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

[Paragraphs (a) and (b) substituted by section 31 of Act 9 of 2006.]

(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.

The requirements of the above defence are very clear. The person seeking to rely on it must be a victim of an attack. He then turns it around and he attacks the perpetrator of the violence either injuring him or killing him. You cannot raise it against the person whom you have attacked yourself. There is no acceptable evidence that the victim ever attacked the accused. It is the accused who came and attacked the victim. Throughout their interaction, it was the deceased who was the victim. The law does not work that way.

Burchell and Hunt South African Criminal Law and Procedure 2 ed vol 1 at p 326 sets out the three criteria for the exclusion of criminal liability. They are:

1. the defence must be directed against the attacker;

2. the defence must be necessary to avert the attack;

3. the means used must be reasonable in the circumstance

This is applicable when the accused has been a victim of an attack by the deceased. We cannot have a situation where the accused is the aggressor and he benefit from the defence. Had the accused been a victim of an attack, the knife he used should have been recovered. It was not recovered. It was seen with the accused. It is clear that the accused took his weapon.

His story is accordingly dismissed and he is found guilty of the murder of the deceased with actual intent.

Reasons for Sentence

The accused has been convicted with the offence of murder with actual intent. He has been a first offender. He is also married and had two children. He has no assets of meaningful value. He is also contributed with the help of his family the sum of USD3500. And of that amount USD1000 was paid in September. USD2400 was then paid on the 2nd September and it equated to 8 beast which the father had charged. Prior to the payment of USD2400 they had been paid 8 beats which then died due to foot and mouth.

The events show that the accused is really sorry with what he did.

However, the bottom line is that an appropriate penalty must be imposed for the murder of the deceased. This is so because whatever the accused has done to the family of the deceased would not bring back the deceased. His two children will remain fatherless.

The sentence should however be fair and just instead of excessive, savage and draconian. The sentence should be blended with mercy because mercy is an element of justice itself. This has been held to be so in S v 1972 (3) SA 611 (A) at 614. However, the extension of mercy to the accused must not be allowed to lead to an injustice. The court must take into account that the accused assaulted the victim mercilessly for no apparent reason. Any leniency which is to be extended to the accused must be founded on acceptable principles.

The court held in S v Mukumba and Another HH276/ 2023 that people should not take the law into their own hands.

It for these reasons that the court would impose a sentence of 20 years’ imprisonment

The National Prosecuting Authority, state’s legal practitioners

Pundu & Company, accused’s legal practitioners