THE State V Learmore Chimukopa

### Preamble
1
HCC52/23
CRB73/23
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THE STATE

versus

LEARMORE CHIMUKOPA

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 11 &27 October 2023

Assessors:	Mr Chivanda

Mrs Mawoneke

Criminal Trial

Ms K Teveraishe, for the State

Ms  Shoko, for the accused

MUZOFA J:    In the murder case, the legal practitioners found each other but somewhere along the line they could not find the accused. This is because the legal practitioners, obviously with the concurrence of the accused agreed to proceed on the lesser charge of culpable homicide. A statement of agreed facts was prepared. However, when the charge was put to the accused, he pleaded not guilty to the charge. He completely denied causing the death of the deceased and raised self-defence. His legal practitioner was helpless in the face of her client’s change of heart. Fortunately, the key state witness was in attendance and the matter proceeded to trial.

The accused stands charged with murder as defined in s 47 of the Criminal (Codification and Reform) Act [Cap. 9:23].The accused and the deceased were brothers. The accused was only 19 years when he committed the offence. He was the younger of the two. On the 20th of July 2023 he stabbed the deceased with a knife leading to his death. This took place in full view of the mother. This must have been a harrowing experience for the mother who witnessed his two sons fighting and one of them dying.

As already stated, the accused denied the charge. He said he acted in self-defence.

The State case

To prove its case the state produced by consent the following exhibits

The post mortem report which detailed the injuries observed on the deceased’s body. The deceased had about four stab wounds. One stab wound which perforated the abdominal muscles, a right sided chest stab wound to the 7th rib, a left sided chest stab wound which perforated the left ventricle of the heart and another superficial stab wound on the forearm. The cause of death was the stab wound that perforated the left ventricle of the heart.

The accused’s confirmed warned and cautioned statement. I reproduce the response for completeness,

‘I admit to the allegations, it is true l stabbed my brother with a knife. But the knife was his which he had brought intending to stab me but l managed to snatch it from his hand and stabbed him with it’

An Okapi knife with a brown handle.

A certificate of weight for the Okapi knife

The evidence of seven witnesses was formerly admitted as summarised in the outline of the state case. The witnesses did not perceive what transpired between the accused and the deceased. They interacted with the accused after the commission of the offence. Some handled the deceased’s body.

Kufahakurotwe Chimukopa whose evidence was admitted by consent was the accused’s father. His summarised evidence was that when the accused got to his homestead, he held a bloody knife. The accused told him that he had stabbed the deceased. He took the knife from the accused. He then handcuffed  the accused and took him to the police station.

Esther Chimukopa ‘Esther’ was the only witness who gave oral evidence. This is the accused and the deceased’s mother. The family reside at Plot 16 Manyamba, Chinhoyi. The deceased was married. Esther lived with his two sons and her daughter in law, the deceased’s wife. Her husband had married a younger wife and lived with her in the same farm.

On the fateful day in the morning, the deceased advised her of the theft of his maize. He showed her where it was. In the evening she was in her hut. The hut was described to the court, the description showed that the walls to the hut were not strong. The hut was grass thatched and the walls were made of tins. It had an opening used as an entrance but it had no door. The accused was sleeping on the one side of the hut and the witness was on the other side in the hut.

The deceased arrived and quizzed the accused about his maize that was stolen.  The deceased had a stick about half a metre long and two and a half centimetres in thickness. The accused professed ignorance about the maize. The deceased would have none of it he pinned the accused down and started assaulting him using the stick. At that time Esther did not perceive any danger to life. She assumed the accused was being chastised by his elder brother.

The accused managed to stand up, and the deceased held him by the neck. He pinned him by the wall. She remonstrated the two to find an amicable solution without fighting. There was a fire in the room so she could see part of what was happening. She heard the deceased exclaim ‘young brother what have you stabbed me with?’ She got up and tried to restrain them. Since they were by the wall the wall gave in and they all fell over. She, together with the accused rose from the ground but the deceased did not. That was his demise.

She said she had used the knife that was used by the accused earlier in the day and placed it on the side of the roof inside the hut. When she heard deceased exclaiming about the stab, she strongly suspected that the accused had retrieved the knife from the roof. She denied that the deceased is the one who had the knife.

She must have been so shocked that thereafter she did not look at the deceased. Neighbours came to the scene and attended to the deceased. They also called the police.

The state then closed its case.

The defence case

The accused adopted his defence outline and opted to supplant it with viva voce evidence. He said when the deceased grabbed him by the neck, he pushed him to the wall. He was facing upwards and he saw a knife. He stretched his hand and retrieved it. He stabbed the deceased once on the stomach. He did not know about the six times indicated on the post mortem report. The deceased did not let go of him. The wall gave in and then fell. His mother tried to restrain them and they all fell with the wall. After that he went to his father and advised him that he had stabbed the deceased with a knife. He showed his father the blood-stained knife and handed it over to the father. He said he had no intention to cause the death of the deceased.

The issue

The only issue for determination is whether the self-defence raised by the accused is a complete defence or not.

The law

Both legal practitioners correctly set out the applicable law in their closing submissions. Self-defence is a complete defence where certain conditions are apparent from the facts.

There must be an attack or an imminent attack on the accused, his response to it must be necessary to avert the attack, the means used to avert the attack must be reasonable in the circumstances and the harm must be proportionate to that which the attacker would have caused. In terms of section 253 of the Criminal Law Code, the defence of self-defence can be a complete defence on a charge of murder if all the requirements as stated are met. The conditions are conjunctive which means all of them must be satisfied. If one of the conditions is not satisfied then the accused is not completely exonerated.

However where all the requirements are met but the means used to avert the unlawful attack are not reasonable in all the circumstances, such a defence is only available as a partial defence, reducing murder to culpable homicide. See s254 of the Criminal Code.

We analyse if the facts of this case satisfy the requirements.

Factual and legal Analysis

It is common cause that the deceased attacked the accused. The accused was entitled to defence himself. It is not in every situation that a person must flee from his attacker. In other words, there is a natural right to act for the purposes of self-preservation against an unlawful attacker. Initially the deceased attacked the accused with a small stick. However, when the accused stood up he was throttled by the accused.

Whether the means used was necessary to avert the attack. The accused said he was held such that he could not escape. It was therefore necessary that he uses some means to wade off the attack.

The accused said he saw a knife by the roof as he was throttled and pulled it. We were told that there was some dim light from the fire in the hut. We accept that the knife could have been the only means that was within his reach for use to avert the unlawful attack.

We consider whether the harm was proportionate to the attack. We do not think so. The way the accused stabbed the deceased was not reasonable in the circumstances. In analysing the circumstances of the case the court must not take an arm chair approach but it must also make a common sense assessment. The dead do not speak. The accused and Esther her mother were the only ones who could speak. We do not lose sight of the fact that in such cases there is a tendency to embellish the evidence magnifying the deceased’s conduct while minimising the accused’s role on the day. Esther was in a very unenviable position to give evidence against her only surviving son after losing the other.

So many questions exercised our minds yet there were no answers. The accused used an Okapi knife. This is not the usual kitchen knife. Infact it is a prohibited knife. Could it be that the accused had the knife and the story of the roof is made up? Its possession is an offence under s39 of the Criminal Code.  People do not usually keep knives by the roof side. In this case Esther said she is the one who placed the knife by the roof. What raised our doubts on these narratives is that when the accused was arrested and gave his statement he did not say he took the knife from the roof. He gave a different version of where he got the knife. He said he snatched it from the deceased who wanted to stab him.

Esther said the deceased had no knife. In the face of this evidence, the accused changed his version. He explained why he gave a false statement to the police about the knife. He said he was afraid. We could understand that he could have been afraid. However, we were concerned that his fear led him to misrepresent the facts and shift the blame or downplay his role. He even misrepresented before this court as to where he directed the stab. He said he stabbed the deceased on the stomach. According to the post mortem report, the deceased did not suffer any stab wounds on the stomach. Could the accused have intended to down play the fact that he aimed at vulnerable parts of the body?

The next issue is the number of blows that were administered on the deceased. Four stab wounds, three of them perforating some internal organs. Clearly the accused used all his might when he stabbed the deceased. We wondered if the deceased kept on throttling the accused having been stabbed so much.

The accused denied stabbing the deceased four times although he referred to six times. He again sought to downplay what he did. The post-mortem report spoke for the deceased. There was evidence that the deceased did not suffer any further injuries after being collected from the scene of crime. He partially admitted under cross examination that he stabbed the deceased all those times. We therefore accept that the accused was the author for the stab wounds.

We do not accept that the deceased kept on holding on to the deceased’s neck while the accused stabbed him about four times. The accused did not sustain any injuries as a result of the throttling. He did not even refer to any after pains from the attack. Both the accused and Esther must have exaggerated what the deceased did on the day.

We do not agree with Ms Shoko’s submissions that the means used in the circumstances were reasonable. The accused repeatedly stabbed the deceased on the chest and surrounding areas with force to the extent of perforating some internal organs. Infact, it seems the accused had just lost all caution to the wind because at one point he said he remembers stabbing the deceased once he does not know about the other blows. This was a vicious response to the attack by the deceased. It would appear Esther although not condoning the deceased’s conduct thought the accused was being chastised. She only panicked and tried to intervene when she heard the deceased cry out about the stabbing.

We certainly agree with the State that the means used were unreasonable. We associate with the sentiments in the case referred to us that of S v Moyo HB 19/17. The manner of attack showed use of excessive force.

Disposition

The accused used excessive force to avert the attack. The four stab wounds around the chest area piercing some vital organs shows that the means used were not reasonable in the circumstances. Our finding is that, the requirements of self-defence were satisfied but for the fact that the means used were not reasonable in the circumstances the accused is guilty of culpable homicide.

Sentence

We considered both the accused’s personal circumstances and the circumstances surrounding the commission of the offence. The accused is a young first offender. Youthfulness remains a weighty mitigating factor in determining an appropriate sentence. Youths are known to be immature and lack self-control.

Youthfulness was considered highly mitigatory is such cases as S v Chidhiza HMT 15-2018, S v Mlambo HMT 19-2018, S v Mungareka & 4 Ors HMA 55-20. The sentences ranged from 2-3 years with part suspended on the usual conditions of good behaviour. The circumstances in these cases are however different to the ones in this case. In the Chidhiza case the accused was fighting with the deceased when he used booted feet on the deceased’s head resulting in the infliction of fatal injuries. In the Mlambo case the accused, a security guard fired at some thieves in an attempt to apprehend them and deceased, who was one of the thieves was shot and killed. These circumstances cannot be compared to the accused’s given the number of times he stabbed the deceased.

We also considered that the accused, although he denied the offence he was remorseful. After he committed the offence he did not abscond, he went to his father and confessed. He was led like a sheep to the police station, he did not resist at all.

The accused has been convicted with causing the death of his brother. He will live with the stigma for the rest of his life. They were only two from their mother he too would surely miss his brother. The court can only temper justice with mercy is such circumstances.

However a clear message must be sent that violence should be avoided at all costs and where one resorts to violence and takes a life, there will be consequences, consequences which must reflect the court’s attitude towards those who fail to respect the sanctity of life

In the circumstances the appropriate sentence which will meet the justice of the case is:-

4 years imprisonment of which 1 year is suspended for 5 years on condition the accused does not within that period commit an offence of which an assault or violence on the person of another is an element and for which upon conviction he is sentenced to a term of imprisonment without the option of a fine.

Effective 3 years imprisonment.

The National Prosecuting Authority, the State’s legal practitioners.

Pundu and Associates,the accused’s legal practitioners