State v Aaron Masango

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                                                                            CRB 148/11

STATE
versus
AARON MASANGO


HIGH COURT OF ZIMBABWE
MUSAKWA J WITH ASSESSORS
MUTARE, 19, 20, 21, 24 & 29 OCTOBER 2011

Criminal Trial


J. Matsikidze, for the state
P. Mukwengi, for accused

        MUSAKWA J: Accused is charged with contravening s 47 (1) of the Criminal
Law (Codification and Reform) Act [Cap 9:23]. Although he does not deny striking
deceased with a hoe on the head his defence is that he was under attack and thus did what
he is alleged to have done in self-defence.


        It is not in dispute that on 8 September 2010 Enock Damu of Mupamhanga
village, Buhera discovered that his bicycle and other valuables had been stolen. He,
together with other villagers teamed up and trailed the tracks of the bicycle. They
eventually espied accused who abandoned the bicycle and other stolen items. Enock
Damu and other villagers gave chase. They passed by some homestead where accused
initially sought to arm himself with a log. Accused then picked a hoe from a fowl run and
threatened his pursuers.
        As the chase progressed other villagers would join in along the way. Eventually
they came across a dry river and before accused crossed it he turned back against his
pursuers. Deceased, Ishmael Chigwende was one of two people who were ahead of the
pursuers. It is accepted he was armed with a sling shot. Nonetheless, he beat a retreat
towards the river at an angle. Unfortunately he slipped and fell down. As he tried to get
up he was struck with a hoe on the head. He subsequently died from the injuries he
sustained from the attack. After the attack accused resumed his flight whilst still armed
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with the hoe. He eventually gave up and he was apprehended by the villagers who handed
him over to Dorowa Police.
         From these facts accused claimed he was under unlawful attack. He thus armed
himself with a hoe assuming deceased and the villagers would give up the chase. Despite
being so armed and having abandoned the stolen goods he thought the villagers would
not pursue him. He eventually struck deceased as he was tired and feared he would be
lynched by the villagers.
         As can be noted the facts of the matter are largely not in dispute. Enock Damu
witnessed the fatal strike from about ten metres. When accused turned back to face them
with the hoe he and others halted. As deceased tried to get up whilst facing accused he
was then struck. Accused is said to have held the hoe with both hands. The hoe stuck to
deceased’s head and accused had to remove it. Accused is said to have then remarked-
“One down, two to go!”
         This witness did not dispute that deceased had used the sling shot at accused. This
is because he heard accused tell deceased to stop what he was doing. As deceased
continued to pursue accused, the latter was said to have remarked that one of them was
going to die. Of the pursuers the majority were young boys. The adults were Enock
Damu and deceased. There was also an unidentified adult who later joined the chase.
         Edgar Deshe another of the villagers also testified. He corroborated the evidence
of Enock Damu in all material respects. A close analysis of his evidence shows that
accused turned back to face the pursuers after deceased had struck him with the sling
shot. He saw deceased use the sling shot once. At the time deceased was struck he tried to
raise his hands as the hoe was aimed at his head.
         The rest of the state witnesses’evidence was admitted in terms of s 314 of the
Criminal Procedure and Evidence Act [Cap 9:07].
         The post-mortem report in respect of deceased was produced by consent. The
autopsy was conducted by Doctor Mungati at Rusape on 11 September 2010. He noted
the following-
“One wound on scalp, left parietal temporal area. Laceration 11cm long, rough edges with blunt ends.
Sutures removed to show a 12 cm fracture with blunt ends and a rough edge. Heamatoma on either side of
the fracture under the scalp.
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Skull opened
-subarachnoid haemorrhage noted
-12cm deep laceration of the cerebral hemisphere and part of the right hemisphere
-superficial longitudinal sinus severed
-laceration extending deep beyond the left lateral ventricle
-hematoma inside the laceration
-ends of the laceration blunt
-blood collected under the posterior lobe of left hemisphere.
Cause of death;
Head injury secondary to assault with a hard object which is flat with blunt edges. Consistent with murder
weapon presented.”


         Accused also gave evidence. There were some material additions that were not in
his defence outline. He stated that the villagers were armed with logs. He also claimed
that there were dogs and one of them bit him on the leg. Surprisingly he said the rest of
the dogs did not bite him as they regarded him as one of the pursuers. This appears to be
a fabrication. Taking into account that he was always ahead of the villagers it is
improbable that if there were dogs they would have failed to identify him as the quarry
being pursued. In all probability the chase would have been short-lived and we might not
have been facing a murder trial with accused in the dock.
         Accused claimed to have been struck with stones from a sling shot on the head,
mouth and legs. The impact of those missiles was not established. He claimed to have
sustained injuries which entailed treatment at Prison Hospital. However, no attempt was
made to avail such proof which should not have been difficult.
         The defence outline, though brief gives the impression that accused did not deny
attacking deceased as alleged. However, in his evidence accused claimed that he threw
the hoe at deceased with the intention of either hitting him on the back or below. He
specifically denied aiming at deceased’s head.
         In her address to the court Mrs Matsikidze submitted that self-defence cannot be
sustained as deceased was unarmed and down when he was struck. She also submitted
that pre-meditation is not a requirement in the circumstances of this case. This is so if one
takes into account the nature of the weapon used and the surrounding circumstances.
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          Ms Mukwengi submitted that accused was entitled to defend himself from
unlawful attack. Accused genuinely feared for his life as a result of the villagers’
relentless chase. She however later conceded that the villagers were entitled to pursue and
arrest accused.
          In respect of the defence of person s 253 of the code provides that-


    “(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.
    (2)        In determining whether or not the requirements specified in subsection (1) have been satisfied
               in any case, a court shall take due account of the circumstances in which the accused found
               himself or herself, including any knowledge or capability he or she may have had and any
               stress or fear that may have been operating on his or her mind.”


          As regards unlawful attack, s 252 defines it as-


    “In this section
“unlawful attack” means any unlawful conduct which endangers a person’s life, bodily integrity or
freedom.”


          On the other hand s 30 of the Criminal Procedure and Evidence Act provides that-
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“Any private person may without warrant arrest any other person upon reasonable suspicion that such
otherperson has committed any offence specified in the First Schedule.”


        The First Schedule lists the various offences in respect of which a private person
has powers of arrest as-
        “1. Any offence at common law, other than bigamy, blasphemy, compounding an offence,
        contempt of court, criminal defamation, incest or violating a grave or dead body.
        2. Any offence in terms of any enactment in respect of which a punishment of a period of
        imprisonment exceeding six months is provided and may be imposed without the option of a fine.
        3. A conspiracy, incitement or attempt to commit, or being an accessory after the fact to, any of
        the offences specified in paragraph 1 or 2.”

It must be noted however, that in light of the codification of all common law offences
there should have been a corresponding amendment to the First Schedule.
        Having noted the above it is clear that the villagers were entitled to arrest accused
as he had committed an offence. It is also not in dispute that accused resisted arrest.
Under such circumstances the villagers were entitled to use justifiable force to overcome
accused’s resistance. In this respect see s 42 of the Criminal Procedure and Evidence Act.
        Having set out the requirements of the law on arrest and self-defence we come to
the finding that the villagers were entitled to arrest accused person which they eventually
did. The villagers including deceased were entitled to use justifiable force to overcome
accused’s resistance to such arrest. Therefore accused was not under unlawful attack.
We also make a finding that deceased was no longer pursuing accused when he was
struck with a hoe. Accused was aware that the villagers would not go near him. This is
because at the time he took the hoe, and in his own testimony, the villagers had
surrounded him. When he advanced towards them they parted to let him pass and he
proceeded with his flight.
         Deceased was in the process of getting up when he was struck. Accused aimed
the hoe at deceased’s head and thus struck deceased whilst holding the hoe with both
hands. Accused used a weapon against a vulnerable part of deceased’s body. The
resultant blow to deceased’s head was severe as evidenced by the medical report. We
therefore find that accused meant to kill deceased when he aimed the hoe at his head and
was aware that deceased was defenceless. Accused actually meant to kill deceased when
he struck the fatal blow.
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       In the circumstances accused is found guilty of murder with actual intent.




Gonese & Ndhlovu Legal Practitioners, accused’s legal practitioners
Attorney-General’s Office, legal practitioners for the state