THE State V JOHN Gawaza

### Preamble
1
HMT 92-20
CRB 45/20
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THE STATE

versus

JOHN GAWAZA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE 17, 23, 24 and 27 November 2020

Criminal Trial

Assessors 1. Mr Rajah

2. Mr Magorokosho

Mrs J. Matsikidze, for the State

D. Tandiri, for the Defendant

MWAYERA J: The accused pleaded not guilty to a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged by the state that on 26 September 2019 at Chidawanyika Village, chief Mutasa, Nyanga the accused unlawfully with actual intent or realising the risk or possibility that his actions would cause death struck the deceased with a log all over the body leading to the deceased’s death a few hours after the assault. The remains of the deceased were examined and cause of death was established as brain injury, biparietal occipital subdural haematoma and severe head trauma.

The accused in his defence raised defence of self and property. The accused admitted to having assaulted the deceased multiple times although he did not know where the blows landed as this was at night and he was fighting armed intruders to protect himself and his employers property. He denied having intentionally caused the deceased’s death but attributed the death to the fall in a soak away pit in which the deceased fell as he fled from him.

The brief summary of the allegations by the state are as follows: The accused was employed at Chimonyo residence as a caretaker. He among other things took care of building materials. The deceased and company would sneak in and steal the property. On the day in question the accused stayed alert to apprehend the thief. At around 0100 hours the intruders came. The accused assaulted the deceased indiscriminately using a log. When deceased tried to flee that is when he fell into a soak away pit which was about 3 metres deep. Eventually the accused sought help and the deceased was pulled out. The assault continued until members of the neighbourhood watch came. The deceased passed before being ferried to hospital.

Only one witness for the state one Blessing Masunga gave oral evidence. The other witness who was to give oral evidence is one Professor Chimbadzo who despite effort was not located. His evidence on the summary of the state case was expunged from the record with the consent of the defence. Blessing Masunga gave an account of events of the fateful day. He was drown to the scene by Professor Chimbadzo who reported to him that the accused had apprehended a thief. Upon his arrival he observed that the deceased was in a 3 meter deep, 4 cornered pit. With the help of Professor Chimbadzo they took out the deceased who was still alive but groaning in pain. They escorted the now deceased to the veranda. The witness observed that the deceased’s left leg was injured with blood coming out. He further observed a cut on deceased’s eye from which blood was also coming out. The witness used a torch to observe. According to him the deceased was groaning in pain when he decided to go back to his home leaving Professor and accused with the deceased. He only came back after day break at the invitation of the police when the deceased had already died. We found nothing to criticise about the manner the witness testified. He made it clearly when they took out the deceased from the pit the latter was in pain and unable to talk. He did not witness the actual assault on the deceased. We held him as a truthful witness.

The rest of the evidence of the state witnesses was formerly admitted by consent as it was on common cause aspects. All the witnesses went to the scene after the deceased had been taken out of the pit. Hakubvikai Chidzedze a member of the neighbourhood watch evidence was essentially on observations of injuries on the deceased. He described the injuries as bad that he had to inform the police officer at Ruda Police Station since the condition was too fragile for them to move the deceased. He also witnessed accused indicate the weapons used to assault the deceased. The police attending details Jabulani Museka, Modern Soda the Investigating Officer also observed the injuries on the deceased’s head and that the deceased was bleeding from the nose and mouth when he was already dead. The police details further observed bruises on the waist, right leg and right arm. All the details were shown the murder weapon by accused. A sketch plan was drawn per indications from the accused and witness. The deceased’s body was ferried to Hauna Hospital and latter Parirenyatwa were Doctor Olay Maledo examined the remains and compiled a post mortem report.

Also adduced in evidence by consent were the following exhibits:

The wooden handle exh 1, Stick Exh 1(a), the certificate of weight showing the handle of 78 cm length and diameter 3-7 cm weighing 0,779kg and a stick 62,5 cm long weighing 0,107kg was marked as exh 1(c). The post mortem report by Dr Olay detailing injuries and cause of death as brain injury and severe head injuries was marked as exh 2. Finally tendered in evidence was accused’s confirmed and warned and caution statement marked as exh 3 by consent. It is worth noting that in the statement the accused pointed out that he fought with the deceased whom he had found stealing from a house under his caretakership. He struck deceased with a wooden log until he fell.

The accused was the only witness in the defence case. He was consistent in his narration of events of the fateful day. His story as outlined in his confirmed warned and cautioned statement stood out with minor differences on details but not to the extent of disturbing the flow of his version. The accused narrated that intruders approached his employer Chimonyo’s homestead which was under his caretakership around 12 midnight. The intruders broke into the storeroom intending to steal building materials. According to the accused the intruders were armed with a crow bar and plank and he equally armed himself with a hoe handle exh 1.  He fought with the intruders while at the same time shouting for help. This prompted the intruders who according to accused were 2 to run away. One fled and  one fell into a 3 metre deep pit. He in the scuffle also sustained injuries. When the deceased fell into the pit the accused then sought for help from Professor Chimbadzo a neighbour who in turn called Blessing Masungu and they both assisted bring deceased out of the pit. Marlon Matiza also came but arrived after the deceased had been taken out. According to the accused he could no longer talk but only indicated property was at his place of residence. The accused told the court that he tied the deceased for fear that he would escape even though he was injured. During cross examination the accused buckled as he sought to exaggerate the ammunition the intruders had, which he said included a screw driver and catapult. Surprisingly these were not recovered or handed over to the police details. The rest of his evidence before the deceased fell into the pit tallied with the State witness’s evidence. From the totality of the evidence it is apparent that the accused previously experienced theft of his employer’s property. On the fateful night intruders came and broke into the storeroom in which were building materials. The accused who was alert armed himself with a hoe handle. It is not in dispute he engaged in physical combat with the intruders. He delivered blows with the hoe handle indiscriminately prompting the intruders to flee. That the accused chased after the intruders one of them being deceased is not in dispute. Further that the deceased fell into a deep pit from which he had to be helped out is not in dispute that as a result of the encounter with the accused the deceased sustained injuries is also not in dispute. As he was being pursued by the accused the deceased fell into a pit. There was no break from the commencement of the fraca up to the falling into the pit. When taken out the deceased was severely injured going by the witnesses inclusive of accused. Further unchallenged evidence that he was groaning and fragile such that the member of the neighbourhood watch did not move him but proceeded to report to the police. That the deceased died as a result of injuries sustained on the night in question is not in dispute. Further considering the post-mortem report the deceased had surface wounds bruises and head injuries. Considering the hoe handle tendered as an exhibit the accused cannot argue that injuries were only caused by falling into the pit. In an event the fall occurred because of the chase and striking by the accused. More injuries naturally occurred when the deceased fell into such a deep pit with a hard surface. There is causal link between the assault, chase and fall into the pit, injuries and death of the deceased.

Considering the murder charge the accused is facing essential ingredients namely the unlawful and intentional killing in light of accused’s defence of self-defence and defence of property only one issue falls for determination. The issue is whether or not the accused is liable for the death of the deceased and if he is the degree of liability. From the discussion above it is not in dispute that the accused was accosted by intruders and he sought to defend himself and his employer’s property. The accused cannot be said to have set out with an aim to kill and proceeded to kill the deceased neither can he be said to have carried out with his conduct with realisation of risk or possibility of death. Murder with actual or legal intention cannot be sustained in the circumstances of this case. The State has not managed to prove beyond reasonable doubt that both the actus reas and mens rea required for murder exist especially upon considering the self-defence and defence of property. The self-defence raised by the accused is provided for in s 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] The defence is complete defence to murder provided all the requirements set out in s 253 are met. The requirements can be safely be summarised as follows:-

The attack must have commenced or was imminent.

The accused’s conduct was necessary to avert the unlawful attack or he could otherwise not escape from or avert that attack.

The means used to avert the unlawful attack were reasonable in all the circumstances.

Any harm caused by his conduct was caused for the attacker and not to the innocent third party.

More less similar requirements have to be met where the defence of property is raised. It is provided for in s 257 of the Criminal Code s 257 (1) states:

“subject to this part, the fact that a person accused of a crime was defending his or her or another person’s property against an unlawful attack when he or she did or omitted to do anything which is an essential element on the crime shall be a complete defence to the charge if……”

This is so provided the requirements are all met. See S v Kapenga HH 14 /18, S v Ntuli 1975 (1) SA 429.

In Kapenga (Supra) it was decided that at common law in order for a situation of private defence to rise there must be evidence that the defence was necessary to avert the attack a reasonable response to the attack and directed against the attacker. In casu where as it is true that intruders 2 or one came at night to steal building material and that a fight ensued, when the intruders retreated by fleeing and running away the accused who was not in danger pursued still armed with a hoe handle and assaulting. The deceased fell into a pit and had to be helped out. He was visibly severely injured as evidenced by groaning in pain and failure to talk. Accused still proceeded to bind him down using a wire to tie him. When the deceased was fleeing the accused was surely under no attack and even his employer’s property was under no threat to warrant protection by continued assault on the deceased. The defence of self in this case was disproportionate to the harm sought to be averted. Even when the deceased had further sustained injuries by falling he was tied by a wire and not given any assistance. The means used to subdue a fleeing thief who had not stolen building materials was unreasonable in the circumstances. Further the property sought to be protected had not been stolen and could have been defended by other means. The defence of self and of property of his employer cannot be sustained. The accused cannot escape liability for having negligently caused the death of the deceased.

Accordingly accused is found not guilty of murder but guilty of culpable homicide as defined in s 49 of The Criminal Law (Codification and Reform) Act [Chapter 9:23]

Sentence

In passing sentence we have considered all mitigatory and aggravatory factors submitted by Mr Tandiri and Ms  Katsiru respectively. The accused is a first offender. He is a family man with responsibility. Accused has been awaiting for finalisation of the matter in excess of 2 years and must have suffered the anxiety that goes with waiting. The accused will indeed live with the stigma of having killed someone as society is not alive to the legal niceties of culpable homicide and murder. Although no amount of compensation will bring back the deceased. We cannot ignore that the accused approached Chief Mutasa and is willing to compensate. That is a humane stance indicative of regret of what transpired. The accused indeed cooperated with the police by giving indications and leads even disclosing the murder weapon in a case which happened in the dead of the night with no witnesses. Also mitigatory is the fact that the intruder approached during ungodly hours such that if accused had not been vigilant he would have been in danger or lost his life himself. The accused was 22 at the time of commission of the offence as such a youthful offender. The overzealous pursuit of the deceased must have been accessioned by immaturity. Youthfulness can cause one to be excitable and lack appreciation of consequences end up committing crime. In this case the moral blameworthiness of the accused is reduced by the fact that it was not the first time intruders came. If they had succeeded that would have impacted negatively on his work.

However what aggravates the offence is the fact that precious human life was needlessly lost. The deceased died a painful death considering the intensity of the attack and the nature of injuries sustained. The accused was accosted by intruders, thieves but he had no right to take the law into his hands. When the intruder was retreating there was no point in pursuing and negligently causing death. Further in aggravation is the fact that accused did not render assistance to the injured deceased but tied him with a wire a move demonstrative of valuing property more than precious human life. Upon weighing mitigatory factors and aggravatory factors of this matter the mitigatory circumstances far outweigh aggravatory factors. The accused being a youthful offender requires to be given a chance to reform and come up as a more responsible citizen.

We believe a suspended prison term will deter accused and likeminded would-be offenders.

You are sentenced as follows:

4 years imprisonment wholly suspended for 5 years on condition accused does not within that period commit an offence involving violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

National Prosecuting Authority, State’s legal practitioners

Tandiri Law Chambers, Accused’s legal practitioners