THE State Versus Talent Mabvuwo

### Preamble
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HCC50/25
HCCR 1587/24
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THE STATE

Versus

TALENT MABVUWO

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 3 September 2025

Assessors:	1. Mr. Mutayiwa

2. Dr. Mashavave

Criminal Trial

N. A. Sibesha, for the State

J. Zuze, for the accused

MUZOFA J: The accused, Talent Mabvuwo was a member of the Zimbabwe Republic Police. He appeared before this court charged with murder as defined in s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that on the 9th of May 2024 at Berejena Village, Magonde the accused shot Douglas Sivaminyile with intent to cause his death or realizing that death may ensue but continued to engage in that conduct despite the risk or possibility.

The background facts are largely common cause. What is contested are the finer details of how the murder was committed. On the 9th of May 2024 the accused proceeded with two other police officers to Berejena Village Chief Magonde to arrest the deceased. The accused was armed with a PI pistol with four rounds. When they arrived at the deceased’s homestead, they entered the house. The deceased did not submit himself for arrest. The accused then shot thrice through the door thereby killing him.

The accused pleaded not guilty to the charge. He raised self defence that the deceased was on a wanted list and was on the run. When the officers required him to surrender and submit to arrest, the deceased advanced towards them with an axe. He was forced to shoot the deceased in defence of himself and his colleagues.

The State tendered the summary of the State case (Annexure A) which was read. The defence tendered the defence outline which was also read and marked Annexure B.

The State Case

The defence made admissions in terms of s314 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA). The evidence relates to the following witnesses:

Elson Madhuku & Gogo Chireya

They did not know the deceased during his life time. They were both police officers. On the 4th of May 2024 Elson received a report of assault in which the deceased was the suspect. On the 9th of May 2024 at around 2300hours the accused invited them to Chijaka area to arrest the deceased. The accused armed himself with a PI pistol with four rounds. They proceeded to Chijaka village in a motor vehicle driven by one Tinashe whose further particulars were not provided.

On arrival at deceased’s homestead, they identified themselves as police officers as they knocked the door. They could tell there were people inside. They heard some movements inside the house. Elson went around the house. At the backyard, he saw the deceased attempting to escape through the window. He let go of his enterprise on seeing Elson. Elson returned.

When no one opened the door for them; they forcefully opened the door. Inside, they saw the deceased’s wife and children who immediately exited the house. They heard a huge sound from the bedroom. The deceased opened the bedroom door slightly, he appeared holding an axe. The accused ordered the deceased to drop the axe and surrender. The deceased did not comply. The accused then shot the deceased who was in the bedroom. He died instantly. Elson then asked for the bedroom keys and locked the bedroom. They left the scene of crime with the keys leaving the deceased in the bedroom. Their superiors had told them to do so.

Machavashara Sivaminyile

Deceased was her brother. They lived in the same village. Her daughter one Susunje Chijaka advised her that the deceased had been shot. She, together with her husband proceeded to the deceased’s homestead. They found the deceased’s homestead deserted. They had seen a car leaving the homestead, they followed it hoping to get some clue of what was happening. Along the way they met the deceased’s wife and children. They returned to the deceased’s homestead. They did not have the keys to the bedroom. They peeped through the window and saw that the deceased was dead. They mobilized other community members. A report was made. One Mapurisa a member of neighborhood police guarded the place waiting for the police.

Fungai Levi, Tonderai Chinoingira, Loyce Jere and Collen Meso

They were police officers based at Chinhoyi Rural at the time. The accused was their workmate. They did not know the deceased. Fungai was on duty on the fateful day. He received a call from the accused that they were involved in a fatal shooting incident. He advised the accused and his team to leave the scene for their safety, but secure the place.

Fungai teamed up with Constable Chinoingira, Constable Jere and Constable Meso. They met the accused and his team at G1 Alaska. The accused handed over the PI pistol with an empty magazine and the keys to the deceased’s bedroom. The keys were then handed over to Sergeant Mavheneke.

The following morning, they went to the scene of crime. Sergeant Mavheneke opened the bedroom door which was locked. It was difficult to open the door since the deceased’s legs leaned against the door. In the bedroom the deceased’s body lay facing upwards in a pool of blood. Next to the body was a blood-stained unfinished axe handle. Deceased had a wound on the chest and the palm. Constable Levi recovered a spent PI 9mm cartridge. The door to the bedroom had three bullet holes.

The deceased was then taken to Chinhoyi Provincial Hospital.

Dr Trynose Mundete

He was the medical practitioner who examined the deceased and certified him dead at Chinhoyi Provincial Hospital. Dr Bothwell Makumbe examined the remains of the deceased and concluded that death was due to intrathoracic bleeding (penetrating lung injury).

The State tendered by consent of the defence the following exhibits, the post mortem report marked exhibit 1, a ballistic report marked exhibit 2, a PI pistol together with one spent cartridge marked exhibit 3, and a sketch plan marked exhibit 4. A one-meter wooden axe handle which was marked exhibit 5 was also produced.

The State led four witnesses to buttress its case:

Mathew Sivaminyile

The deceased was his maternal grandfather. He did not know the accused. At the time of the offence, he was only 15 years. On the night in question, he was in his bedroom. He heard a motor vehicle approach their homestead. It had no lights; the lights were switched on when it stopped by their verandah. He peeped and he saw some people who asked him to open the door. He rushed to his grandfather’s (the deceased) bedroom to advise him.

They did not open the door. The intruders forcefully opened the door into the dining room. They then proceeded to the bedroom where he was with the deceased. They started pushing the door. As they held the door, a bullet hit and penetrated the door but it missed them hitting a towel. He panicked and ran to hide behind a bed. The second and third shots hit the deceased who held the door.

As the shooting took place deceased and the intruders engaged in a verbal exchange. The accused threatened the deceased that he could kill him. Deceased did not relent; he stood his ground holding on to the door. The last bullet hit the deceased and he fell. The accused then went outside laughing with his colleagues.

He explained that when these people arrived, the deceased went to the window and instructed him to barricade the door. However, the deceased later joined him to barricade the door using both hands and body. The door was partially open when the first shot was fired. He denied that the deceased tried to attack the accused with an axe but that the axe handle was used to barricade the door.  After the shooting a police officer in uniform told them to leave. He rushed to Munyaradzi’s homestead.

Under cross examination, he confirmed that when he peeped out through the window, he saw that there were police officers. However, he did not advise the deceased  that there police officers outside he simply said there people.

Ruvarashe Kapfidza

She was married to the deceased for 22 years. On the 9th of May she was in bed with the deceased in their bedroom. Some people who he later learnt were police officers forcefully opened their dining room door which is the main entrance into their house. Mathew had already alerted them of their presence. She went into the dining room and gathered her children.

These people did not identify themselves when they entered, they asked why they did not open the door. They immediately started shooting at the metal door. She stood with her three children watching. The deceased who was standing by the door was struck and fell behind the door. She noticed blood seeping from the bedroom into the dining where she stood with the children.

They then demanded for the house keys. She could not hand over the leys as she needed access to the house to nurse their disabled child. They then asked for the bedroom keys which she handed over. She said they did not access the bedroom the whole night. The police opened the bedroom door the following day.

She explained how the deceased’s death has impacted her. Besides the usual difficulties that come with the loss of a loved one she particularly highlighted the challenges she is facing with their last child. Their last child was disabled; she could not walk, talk or even help herself. She entirely depends on others. At the time she was 5 years old and still on diapers. The deceased was the bread winner; since the deceased’s demise life has been a nightmare for her.

Her cross examination was brief. She said the police did not identify themselves. The deceased did not threaten the police at all. When they entered the house, they tore all the coverings on the windows. The deceased and the accused did not talk to each other.

Sedias Chireya

He did not know both the accused and the deceased before the commission of the offence. He was a member of the special constabulary team based in Alaska. On the day in question, he went to the deceased’s place together with the police (the accused and his team) abode one Tinashe’s motor vehicle. Tinashe had reported an assault by the deceased.

When they arrived at deceased’s homestead they knocked, identified themselves and directed the occupants to open the door. The door was not opened. They pushed the door which was barricaded by a couch. When they entered the dining room the deceased’s wife and children stood in the dining room. He ordered them to go outside.

Meanwhile the accused ordered the deceased to surrender. Instead of complying they heard a blast in the bedroom. He thought it was a gunshot. They tried to push the door with no success. The deceased slightly opened the door, he had an axe in his hand. He advanced towards them, but still in the bedroom. The accused ordered the deceased to surrender, deceased would not. Accused fired a shot towards a window. Deceased did not give himself up. The accused then fired three shots towards the deceased killing the deceased. This happened in a split second that he did not see how the deceased was hit.

Accused pushed the door and deceased lay on the bed facing upwards. They called their seniors who advised them to lock the door where deceased was and leave the scene. They complied.

Under cross examination he was not clear how the deceased was shot. However, he confirmed that the deceased did not leave his bedroom. He explained that, they could not have arrested the deceased because of the axe he had and the threats. Also, the explosion they heard, he suspected that deceased had a gun. In fact, when the deceased threatened them with the axe he hid behind the accused.

He denied that Mathew was in the bedroom claiming he did not see him at all. It was suggested that they could have escaped from the deceased. He explained that, it was not possible because the deceased was armed and had shown that he could attack them. They were in danger of a vicious attack.

Detective Sergeant Madhedhe

He was the investigating officer. At the time he was stationed at Chinhoyi Rural. The accused was his workmate. He was on night duty on the 9th of May 2025. He received a report of a shooting at Chijaka village from Assistant Inspector Levi. He proceeded to the scene of crime with other officers whose evidence was formally admitted.

At the scene of crime Detective Sergeant Mavheneke opened the bedroom door. The door was made of zinc sheet about 3mm thick. There were three holes on the door. When the door was opened, the deceased was leaning on the door. The body had gunshot wounds on the chest and on the right palm. About 30cm from the body he saw a bloody wooden log. It had no axe head.

In the dinning room Assistant Inspector Levi recovered two spent cartridges, the PI pistol was also recovered. He recorded statements from witnesses and the accused. They also made indications which he reduced to a sketch plan which was produced as exhibit 4.

His cross examination did not yield much. He could neither confirm nor deny that the accused fired a warning shot aimed at the window. The house had window panes but no glasses. The window panes were covered by plastic and card box. He denied that the accused showed him the window that he shot. What he confirmed were the three holes on the door.

He could not even confirm whether the wooden handle had an axe head or not, whether it was fully carved or was still work in progress. His cross examination on the sketch plan revealed that he did not do a proper job. For instance, point J was indicated by Constable Elson Madhuku as where he stood when accused shot the deceased. Point J was right inside the bedroom. Also, right inside the bedroom he indicated where Elson peeped into the bedroom. It defies logic that a person inside the room can peep into the same room. The indications by Constable Madhuku were meaningless.

The State then closed its case.

The Defence Case

The accused adopted his defence outline and gave a detailed account of what transpired on the day. He admitted fatally shooting the deceased. They had received information that the accused could only be found at his homestead at night. He was known to be a violent artisanal miner. He was wanted in respect of three assault cases as follows:

Chinhoyi Rural number 41/08/20 the allegedly assaulted Dumisani Mangwiro with a drill beat.

Chinhoyi Rural number 05/8/21 he was suspected to have assaulted S. Matirira. Deceased had teamed up with other artisanal miners and assaulted the complainant with different weapons.

Chinhoyi Rural number 23/12/21 he assaulted the same complainant under CR 05/8/21 this time he was in the company of Tellmore Kapungu.

When they arrived at deceased’s homestead, they identified themselves and knocked. The door was not opened. They forced the door open and entered the dinning. The deceased’s wife and children were already in the dining room. The wife and children were ordered to go outside. He ordered the deceased to surrender. He did not. The deceased slightly opened the thin zinc door. He had an axe advancing towards them. He fired a warning shot towards a window. Deceased continued to advance. He fired the second, third and fourth shots consecutively. The second shot hit the deceased’s hand that held the axe, the third missed. He did not know where fourth landed. The deceased fell.

He said he thought he was in danger of an imminent attack together with his fellow police officers since the deceased was relentless. He kept on advancing towards them. Also, they had heard an explosion inside the bedroom so he was not sure what else the deceased was armed with. It could have been a gun. Even if he had shot the deceased on the hand, he still believed he was in danger since the deceased was armed.

He was cross examined at length by the State counsel. He slightly changed his version. He said when he fired the 1st and 2nd shots the deceased was facing him, actually advancing towards him. The door to the bedroom was thin, it could close on its own accord. So when he fired the third and fourth shots the deceased was behind the door. The door had closed.

Surprisingly when his attention was drawn to Gogo Chireya’s evidence who was in his company on the day that the accused shot at the door with the deceased behind,he denied it. He said Gogo did not see what transpired as he had hidden behind the accused when the deceased charged at them. Deceased was actually charging at them menacingly he had no choice but to protect himself and his colleagues. Had he remained inside the door they could have continued to call him out to surrender.

When asked whether the deceased remained a threat behind the door he persisted that he was still a threat. He had to fire because he was afraid. He said they had information that deceased was a violent artisanal miner. He also knew of a police officer who was killed on duty by an artisanal miner. Obviously, he did not want to risk his life he had to be pro-active.

He was asked why he shot the deceased, he said it was because they heard an explosion inside the bedroom and the deceased wielded an axe when he advanced towards them. He tried to reconcile the fact that the investigating team recovered an axe handle only and no axe head he said the scene of crime could have been tempered with, the door was locked but the windows had no window panes. Anything was possible.

The defence then closed its case.

We requested Dr Bothwell Makumbe who compiled the Post Mortem Report to give evidence to explain the injuries on the deceased.

He noted three gunshot wounds on the deceased. We needed clarification on the import of entry wounds and exit wounds by a bullet. He explained that the injuries on deceased’s hands could not be sustained as described if the deceased was holding something. This was because the first entry wound was on the inner right middle finger. The entry point is smaller than the exit wound. The fatal wound was on the hemothorax which affected the heart.

Closing Submissions

The State’s Closing Submissions

After summarizing the evidence placed before the court the State assessed in detail the applicable legal principles. From the facts the State conceded that the State witnesses Mathew and Ruvarashe’s evidence was exaggerated. However, their evidence must not be disregarded in toto. They corroborated each other on material aspects. On the authority of the Zimbawora v S SC 7/92, the court was urged to approach their evidence with caution as they were interested witnesses.

On the whole the State submitted that the evidence established that the deceased was behind the door, there was no threat to the accused. We were referred to the case of DPP, Gauteng v Pistorious (96/2015) 2015 ZASCA 204 one of the leading cases on self defence, and shooting at someone behind a door. We were urged to find the accused guilty of murder with constructive intention.

The Defence’s Closing Submissions

The defence also filed detailed closing submissions. It appears the defence conceded that the deceased was shot while behind the closed door.

We were urged to acquit the accused. His explanation that there was an imminent attack must be accepted. Of interest was the reasoning for this submission. It was submitted that the accused believed that the deceased would emerge and attack. The accused were on enemy territory they could not retreat it was now an arm for an arm and leg for leg. Citing R v Mpofu 1968 (2) RLR 319 that:

“a person has the same right to use force in the defence of another from a threatened danger as he has to use force in defence of himself. The onus of disproving such defence is in either case on the State”

The court was urged to make a finding that the State failed to disprove the accused’s defence. The police could not flee from the accused.

Issues for determination

The only issue for determination is whether the accused acted in self defence. If so to what extent is self defence applicable.

Analysis

We shall briefly examine the evidence to establish what transpired on the day. We are indebted to both Mr Sibesha and Mr Zuze for the detailed submissions.

The following is common cause,

The deceased was a suspect on three outstanding cases at Chinhoyi Rural Police. All the offences involved violence, they were assault charges.

The accused was armed with a pistol they intended to arrest the deceased.

When they arrived at the scene, they were not welcome, the door was not opened. They forcefully entered the dining room. They could not do so into the bedroom where the deceased was.

The accused shot the deceased.

Mathew and Ruvarashe were related to the deceased. It cannot be ruled out that their evidence maybe laced against the accused, they had a vested interest in the outcome of the case. The tendency by such witnesses is to exaggerate or even add some information to secure a conviction. The two in our view embellished their evidence.

From the onset both indicated they did not know who was at the door, they tried to paint a picture that they thought they were dealing with robbers. This cannot be true since two officers were in uniform. That they knew that the police wanted the deceased is obvious. There is no way the wife and children would expose themselves to suspected robbers while the man of the house, the deceased was hiding in the bedroom.

Secondly, they distanced themselves from the axe handle but we believe and accept that the deceased threatened the police with it. Mathew’s evidence that the axe handle was used to barricade the door cannot be true because the bedroom door could be locked. The keys were taken by the police. They also said the accused and team appeared satisfied that they had killed the deceased which is naturally unbelievable, the Police intended to arrest and not to kill the deceased.

Gogo said these two were not at the scene. Ruvarashe was outside with the children. Mathew was not at the scene. We have no doubt that Mathew was at the scene of crime. His evidence on what transpired in the bedroom coincided with Elson and the accused’s evidence. He said the deceased tried to escape through the window which was confirmed by Elson. The details on how the deceased was shot was partially corroborated by the Police witnesses. In his defence outline the accused confirmed that Mathew was in the bedroom with the deceased. He struck us a credible witness despite the minor embellishments on immaterial issues.  Ruvarashe might not have seen everything since she was tending to the children. This explains why she did not even hear the exchange between the accused and the deceased.In the whole we accept the state witnesses’ evidence on the main issues how the deceased was shot. He was behind the door.

The next legal issues arise, was accused acting in self defence?

Self Defence

Self defence is a complete defence where it is shown that there was an attack, the attack must unlawful; the attack must have commenced or imminent. In relation to the defensive action, it must be directed against the attacker; the defensive action must have been necessary to avert the attack; and the means used to avert the attack must be reasonable. See s253 of the Criminal Law Codification and Reform Act (Chapter 9:23).

In assessing the applicability of the defence, the Court must consider the circumstances under which the offence was committed and the accused’s subjective mindset. The remarks by FIELDSEND CJ (as he then was) in Phiri v The State SC 190/82 are instructive, that

“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 the 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”

In a line of cases dealing with self defence Courts have underscored the need for an objective assessment of the defence taking into account all the relevant circumstances surrounding the commission of the offence. This may include the status of the accused and the deceased, atmosphere when the offence was committed and the exigencies arising from the situation.

Whether the accused was under an unlawful attack.

Section 253 (1) (a) deals with the attack, that ‘…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,’

Samantha Goosen succinctly described the nuances involved in assessing the attack as follows,

‘The first requirement is that there must have been an attack. Fear alone is not sufficient to justify a defence. Private defence may be utilised only where there is an attack which has already commenced or is imminent. The term "commenced" means that private defence may be resorted to only where the attack has already begun and there is no time to seek other forms of protection. Burchell notes that "imminent means that the attack is about to begin immediately - what is important here is not so much the imminence of the threat, but rather the immediacy of the response required to avoid the attack. If the nature of the attack is such that the threatened harm cannot be avoided, the victim should be entitled to act with such anticipation as is necessary for effective protection." (underlining for emphasis)

The wording in s253 (1) as read with the caption cited to our minds requires that once the attack has commenced or is perceived to be imminent there must be an immediate response to avert the attack. A delayed response cannot be sustainable it would be retaliation and not so much self-defence.

In this case the accused did not plead that an attack had commenced. He said it was imminent. As such his response should be at the time the deceased threatened to attack the Police. In his defence outline he said the deceased charged at them with an axe. He then shot him. The issue that arises is whether an attack was imminent or he reasonably believed an attack was imminent.

On that central issue there are two irreconcilable versions. Whether it can be accepted that the deceased was shot at the time he threatened the accused and his colleagues is an aspect to which I now turn. The resolution of that dispute must depend largely upon inferences from other facts and upon the probabilities (Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd 2002 (4) SA 408 (at para 24). The evidence placed before the Court did not confirm the accused’s version of events. We have no doubt that the deceased at some point was armed with an axe handle. It is immaterial whether the deceased had an axe or an axe handle. The fact remains that he had armed himself. The axe handle was recovered near the deceased’s body covered in blood.

Despite that he was armed we find that he armed himself but remained in the bedroom. The sketch plan, Gogo and Mathew’s evidence confirm that the deceased did not leave his bedroom. We therefore come to the conclusion that the bedroom was a safe haven for the deceased, he did not leave to pursue the Police. The accused and his team did not enter the bedroom which means if he charged at all he did so at a distance.

There was uncontroverted evidence that there were bullet holes on the door,which means the accused shot the deceased while he was behind the door. We reject his version that the second and third shots were fired as the deceased advanced towards him while wielding the axe. His evidence is inconsistent with objective evidence before the court. The credibility of evidence can be tested against real evidence if available. The post mortem report provided such evidence. Three gunshot wounds were described as follows,

Entry wound inner right middle finger

Exit wound outer right middle finger.

Entry wound right palm

Exit wound right dorsum.

Entry wound upper left hemothorax (anterior)

Exit wound lower right hemothorax posterior.

As explained by Dr Bothwell, if the entry wound was on the inner part of the middle finger and the palm, the only inference that allows no other inference is that the deceased’s hand was open. This confirms Mathew’s evidence that he was busy with his grandfather (deceased) barricading the door using their bodies when the shots were fired. We accept his version.

On the other hand, the accused’s version is not supported. If the deceased was facing the accused while he held the axe the hand that was shot would have sustained injuries with entry wounds on the outer side of the hand. It is inconceivable that a person can hold something with a wide-open palm, fingers straight up. There is no holding to talk off. Even if for a moment we accept the accused’s version the hand would be wrapped around the axe. So how did the bullet enter through the inner part? It should have entered through the back, similar reasoning for the palm applies. The accused’s version is a lie it cannot be accepted by any stretch of imagination.

If the deceased charged at the accused and his colleagues at all the accused did not immediately react to the threat.

The probabilities are that the deceased wielded the axe handle while in the bedroom when he slightly opened the door. When the first shot was fired, they barricaded the door. The deceased resisted arrest. The Police were at large to use minimum force in terms of s42 of the Criminal Procedure and Evidence Act (Chapter 9:07), which the accused opted not to rely on.

We also accept that when the deceased was shot, he was not holding the axe/axe handle as depicted by the wounds. It would be practically impossible. Our finding is that he was barricading the door with hands wide open and body facing the dining where the accused and team were. There was no imminent attack to talk of.

The accused’s defence was contrived and he varied it such that it was unclear as to why he shot and the circumstances surrounding the shooting. What is revealing and betrays the accused is that under cross examination he conceded in yet another version of his that had the deceased remained in the bedroom he would not fire. They could have continued calling him to surrender. There was no need to shoot. However, in another breath he said the deceased remained a threat because he was still armed and they did not know what was inside the bedroom that had exploded. Thus, they could not retreat but fire only. Besides the prevarications, that the deceased was behind the door was proved beyond a reasonable doubt by the three gunshot holes on the door. The accused did not dispute the presence of the holes that the investigating officer observed. An adverse inference can be drawn against an accused who prevaricates on what transpired. The accused was not candid.

Whether the defensive action was necessary to avert the attack; and whether the means used to avert the attack was reasonable

Even if for a moment the court accepts that there was an imminent attack was the defensive action necessary to avert the attack?

Taking heed of the dicta in Phiri v The State case (supra) to look at the particular persons before the Court and the exigencies of the case we do not believe that the defensive action taken was necessary. In S v Chitara HH 356/23 the Court considered that the deceased was known to be aggressive in the community. On that day the deceased and a group of other men had attacked the accused and dragged him into a beerhall and assaulted him. In a moment of pain and in defence the accused picked a weapon and struck the deceased. Self defence was treated as a complete defence since the attack had commenced and the accused had already lost some teeth.

In this case the accused said that the deceased was known to be a violent artisanal miner and was wanted on assault charges. That could be the reason he armed himself. Maybe the act to advance towards the police was evidence of the deceased’s misplaced brevity. But the hyped brevity was soon quenched since he retreated. On the other hand, the accused was a seasoned police officer who was in charge of a team. He must be a fairly senior officer. Yes, at the back of his mind he was aware of an officer who was killed on duty by artisanal miners but these circumstances do not show any threat.

In Bomvana v S (AR 66/23) [2024] ZAKZPHC 124 (20 December 2024) a police officer shot and killed a driver of a car he believed was about to hijack him. The deceased and the accused were driving along a road. They had a misunderstanding the deceased threatened the accused. The accused drove away but deceased followed him until an opportune time presented itself. The deceased blocked the accused using his bakkie, alighted from the vehicle and approached the accused. The accused then shot at him five times. He raised self-defence in the lower court and on appeal he raised putative self-defence. He was convicted of murder with constructive intention and sentenced to 10 years imprisonment. His appeal was unsuccessful.

In dismissing the appeal, the appeal Court analysed the evidence and the injuries sustained by the deceased. It concluded that the injuries were on the deceased’s back which means he was not a threat to the accused. Secondly, the accused who was a fairly senior police officer should have known how to react in such a situation. He could not have believed that the deceased wanted to hijack him when earlier on they had a misunderstanding, obviously deceased wanted to settle scores. Deceased was alone and he could not have hijacked the accused who had passengers, that was practically impossible.

When the deceased was inside his bedroom, if the accused thought there was still danger he must have shot once  and paused for a response. He was not under any pressure or fear of any immediate attack. However as confirmed by all witnesses including the accused he shot three bullets successively. The accused was reckless in his conduct to fire consecutively one shot after another. He took the risk of whatever result and reconciled with the result.

In Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204, the Court had this to say on self defence which is apposite to this case,

“In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do. Consequently, although frightened, the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger. The defence of putative private or self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.”

In our view deadly force may not be used if other effective means of bringing the suspect before a court for trial purposes are available. We were not told that there were no other means to secure the deceased except to shoot him. Where the suspect’s address is known as in this case the arrest could be carried out later to avoid use of deadly force.  The purpose of an arrest of a suspect is to bring him/her to justice before a court of law, and a dead suspect can hardly be brought to court.

This case brings to the fore the delicate balance between the police duty to arrest suspects, protect society and the right to use deadly force which may result in death. This issue has been widely debated in South Africa both in case law and as a subject of academic debate. The golden thread that cuts through the authorities and decided cases on these issues is that, ‘..,a balance must always be struck between the conflicting rights of the suspect, the arrestor and society as a whole.  All the rights and duties of the individual, the State and society at large must be weighed against one another while taking into account all the circumstances of the specific case, and the constitutional values’

The right to life is reposed to every human being by virtue of being a human being. That he is suspected to have committed an offence does not make him/her a lesser human being. In this regard the offence allegedly committed must be taken into account. In this case the accused was a suspect on assault charges. It is the State’s duty to protect the efficacy and effectiveness of the criminal justice system. At the same time police officers cannot afford to let a dangerous criminal go free because they are afraid to use reasonable, proportional and necessary force to arrest such a criminal, or to feel uncertain as to whether they should do so or not.  If the police fail to arrest suspects they lose credibility. Thus, the Court must strike a balance between the competing interest.

For this court to return a conviction of murder in terms of s 47(1) of the Criminal Law Code, the State must prove beyond a reasonable doubt that when the accused shot the deceased, he desired death. Death was his aim and object, or death was not his aim and object but in shooting he foresaw death as a substantially certain result of that shooting and proceeded regardless as to whether that consequence ensued. See (S v Mugwanda 2002 (1) ZLR 547 (S); S v Tailo & Anor HB 126/22).

The defence referred us to a number of decided cases to persuade the court that the accused must be acquitted. We were not persuaded. The cases are distinct from the one before us.

Disposition

The accused took a risk and shot blindly towards the door. There was no threat of harm from the deceased. He knew that the deceased was in the bedroom and right by the door. He knew that the deceased was not going to escape through the window since a Police officer had initially gone round to the windows leading to the deceased abandoning the attempt to escape. The door was made of some thin zinc material and it could flip in and out on its own. That it remained closed showed it was barricaded. It was barricaded by the deceased. Three bullet holes on the bedroom door were observed. These resulted in three injuries on the deceased one being fatal.

In our view the accused did not intend to cause death but he foresaw that death may result but persisted to shoot. He shot thrice after shooting one warning shot instead of the standard three warning shots. There was a clear possibility that death may result and the accused reconciled with it.

Accordingly, the accused is found guilty of murder with constructive intention.

SENTENCING JUDGMENT

This is a regrettable and most unfortunate case, which makes sentencing even more difficult. The accused a duly attested member of the Zimbabwe Republic Police of 15 years in service shot and killed the deceased in a bid to arrest him. After considering the circumstances of the case we convicted him of murder with constructive intention. What poses the greatest challenge is whether the sentence should be approached differently to balance between the competing interests of the law enforcement agents to exercise their right to arrest suspected offenders and the right to life. The irony of it all is that he will serve a custodial sentence alongside the very criminals whose activities he had dedicated his life to fight.

The maximum penalty on a conviction of murder where aggravating circumstances exist was death which has since been repelled. It therefore means the maximum penalty is life imprisonment and not less than 20 years imprisonment where there are aggravating circumstances. In this case there are no aggravating circumstances, which means the Court can exercise its discretion depending on the circumstances of the case.

The sentencing guidelines provide for a presumptive sentence of 20 years imprisonment where aggravating circumstances exist, which is the minimum provided under the Act. Where there are mitigatory circumstances the presumptive sentence is 15 years imprisonment. According to the definition of presumptive sentence it is a midway penalty between an augmented penalty which may be imposed in aggravating circumstances and a diminished penalty which may be imposed in mitigatory circumstances.

Mr Zuze for the accused emotionally addressed the court, with a question, “what message does the court want to send to would be offenders?” The would-be offenders are the police who are reposed with a Constitutional mandate to police, protect society and arrest suspects. He urged the court to impose a sentence that would retain police dignity, allow them to use their discretion and not be cowered and flee at the first threat for fear that if they shoot, they would be sent to prison.

Despite the emotive submissions the court must balance the interests of the offender, and the interest of justice in view of the nature of the crime. The police have a constitutional duty to police, investigate and bring suspects before courts of law. In fulfilling their duties, they must give effect to the rights of every individual as provided in the Constitution, the right to life, dignity and physical integrity. Even the death penalty has been abolished in our statutes. These rights ordinarily outweigh the disadvantage to the administration of justice in allowing a criminal to escape. In this case, there were other available alternatives that the police could have employed to arrest the deceased. We did not hear that they called for reinforcement or even their canine section to assist.

In mitigation we will consider that the accused is a first offender who committed the offence while on duty. When he left the office on the day, he was on a mission to apprehend a suspect who had evaded the police for some time. The deceased failed to comply with a lawful order. He had no intention at the time to cause the death of the deceased. He has lost his source of living not only for himself but for his whole family. He is a family man with young children. He assisted the deceased’s family during the funeral wake which is highly mitigatory. Such conduct shows remorse in action.

The only weighty aggravating circumstance is that the accused committed a serious offence that took away the deceased’s life. We must consider the accused’s interest and the deceased’s immediate family’s interests who are the most affected. Life must be jealously guarded. The accused’s children will have an opportunity to visit their father in prison on the other hand the deceased’s children have lost that opportunity forever. There are no visiting times on the other side of the grave. The deceased’s wife will live her life with no one to help her particularly with the child who is disabled. The offence was committed in full view of the deceased’s family and this will traumatize them for some time.

In Chani v The State SC43/17 where a police officer was convicted of murder with constructive intention after he assaulted a suspect to death the appeal court found a sentence of 18 years unassailable.

In weighing both the aggravation and mitigation factors, the court is enjoined to tamper justice with mercy and every case should be considered on its own merits. S v V 1972(3) SA 611(A) at 614. See, S v Bere HMT1/2016. This Court must strike a balance between the need for armed officers to discharge their duties with caution. They are trained to arrest suspects without necessarily resorting to use of deadly force. There was no danger of an imminent attack in this case. Firing three shots was unnecessary.

There are compelling mitigatory circumstances in this case that outweigh the aggravating circumstances which compel me to impose a sentence that is well below the presumptive sentence. Accordingly, the accused is sentenced as follows,

10 years imprisonment.

National Prosecuting Authority, the State’s Legal Practitioners

J Z Zuze and Associates., the accused’s Legal Practitioners