State v Marata and Another (76 of 2024) [2024] ZWCHHC 76 (23 July 2024)

1 HCC 76/24 HCCR 466/24 THE STATE versus TALBERT MARATA And TAWANDA SVARUKA IN THE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J CHINHOYI, 23 July 2024 Assessors: Mrs. Mateva Mr. Mutombwa Criminal Trial Mr. N. A. Sibesha, for the State Mr. A. Gate for the Accused BACHI MZAWAZI J: Accused persons who were, at the time of the commission of the offence, security guards manning a mine site, shot and killed the deceased person. In the process, two members of the deceased’s gang were shot. As a result, they have been arraigned on 1 count of murder and 2 counts of attempted murder. The facts as presented by the summary of the State case are that; on the day in question there was a gold rush at the mentioned mine. The accused persons had been assigned to go and guard the mine. There were so many people milling around the mine in an effort to get a chance to mine. There were more than a thousand people who had visited the mine and because of the commotion, operations were stopped so as to organize the people. The group of people was dismissed to a shopping area where they were being addressed by one, by the name of Murehwa. The deceased, in the company of the other 3 witnesses who testified, also responded to the gold rush by visiting this mining site. Upon arrival at the site within a few meters away they were accosted by the 2 security guards who stopped them from coming any closer, so they parked their car some distance away. Three of the occupants of the vehicle where the deceased person was, disembarked and approached accused 1 and 2 in order to negotiate how operations were being undertaken at the mining site. After lengthy negotiations, the accused persons attempted to contact the HCC 76/24 HCCR 466/24 person in charge by phone. When they were unable to do so due to insufficient airtime, they gave one of the witnesses the phone number, to contact the person in charge. What this signals is that there was an amicable engagement between the 2 opposing parties. The headman who was in charge of the area then intervened in the discussion between the accused persons and the deceased person’s group. It is evident that the discourse between the headman and the witnesses then degenerated into some form if discordant. From the evidence that was led by the State, from its witnesses, there was a scuffle between the headman and some of the witnesses who had disembarked from the vehicle. This wrangle led one of the witnesses, a lady by the name Olinda, to intervene and restrain, the 1st witness Lawrence, from fighting with the headman. During the course of that commotion one of the security guards, accused 1 fired a shot at the people who were involved in the scuffle. The 2nd accused is also said to have fired another shot aimed directly at the crowd. According to the headman’s evidence, the headman was in between the accused persons and the deceased’s gang and both shots hit his sides. The accused persons in their defence denied intentionally shooting the deceased and his colleagues. In their defence outline they pleaded self defence. They stated that the deceased and his team had come armed with lethal weapons and had attacked them. Based on the evidence presented by the State witnesses, including independent witnesses, the court is of the view that when the deceased’s team first arrived at the scene there was no violence. Further from the chronology of events as deduced from all the witness evidence the deceased person’s team was not armed. This was also reinforced by the evidence in-chief from both accused persons. The court is convinced that the introduction of the knife is a figment of the accused person’s imagination. The headman who gave evidence which sort of leaned in favour of the 2 accused persons did not see any knife neither did he see any gun. The court does not believe both the accused persons that there was a gun, because if one analyses their evidence, they are not consistent as to where the gun came from and why would a person with a gun wait until several gunshots have been fired, before taking action. Further after the shooting incident they searched for spent cartridges as per their evidence but could not locate one. The investigating officer thoroughly searched the area but could not locate any spent cartridges that were not from the firearms used by the 2 accused persons. HCC 76/24 HCCR 466/24 In addition, both accused persons were trained in the use of firearms. They had used the firearms for the duration of the tenure of their employment, accused 1 for four years and accused 2 for seven years. They all testified that the first shots they fired were towards and in the direction of people, human beings, but they called them warning shots. They conceded that warning shots are shot in the air. In terms of the law governing firearms, you shoot 3 warning shots into the air. In defies logic that after aiming at people then they fire six shots in the air as per accused number 2’s evidence in chief. It shows excitement on the part of both accused persons they could not control themselves and were trigger happy. This supports the evidence of the witnesses that when the shots were fired the first gunshot which hit on the side of the headman discharged pellets which hit the 2nd witness and all the accused persons reacted to this first shot and ran away from the scene. The reasonable inference that can be drawn is that the accused person as per the witness’s statements, then pursued the group shooting, and firing even more shots. The post mortem report produced as evidence in court shows that the deceased suffered from multiple gun wounds. Accused 1 confirmed that one discharge from the type of firearm he had disintegrates into several pellets. That means the impact of one shot temporarily paralyses the victim. Therefore, it does not make sense that after the deceased had been showered with bullets that are indicated on the post mortem on 35 spots, he would then have the strength to run or flee from his attackers then climb on to the back of a Toyota High rider. This dispels any notion that the deceased was shot on the ground but he was shot as described by the witnesses who as far as the court is concerned are credible witnesses. He was shot seated at the back of the truck. The defence of self defence is rejected. There was no attack or any unlawful attack. For the defence to succeed there must be a lawful attack in terms of s253 of the Criminal Law Code. Even in the circumstance of the accused persons, there was no apprehensive of an actual unlawful attack. See Nene v S (AR 65/2017) [2018] ZAKZPHC 46. Accused 2 and 1, both confirmed that they had a discourse which ranged to an hour or more with the deceased person’s team. They even offered to use their phone to contact the person in charge. This does not portray any hostile environment. It does not reflect the deceased and his team as violent people who initiated an unlawful attack. So there is no self defence to talk about. Even if it was to be concluded there was an unlawful attack, which we reject, the force used HCC 76/24 HCCR 466/24 was excessive under the circumstances. See S v Ngomane 1979 (3) SA 859. See S v Muchairi HB 12/13 and S v Mabvure HH 39/16. The accused persons in this respect, by shooting and directing their shots at people recklessly caused the death of the deceased and injured the other 2 witnesses. A firearm is a lethal weapon hence the need to fire warning shots in the air. Once it’s pointed at people the results are fatal. There was reasonable foreseeability that by shooting at people death would occur but both accused persons in a frenzy of excitement continued shooting. In count 1 both accused persons are found guilty of murder with constructive intent. In count 2 accused persons are found guilty of assault with grievous bodily harm because it is clear from the evidence that from the injuries on the 2nd witness the shots were aimed on the ground and the injuries were as a result of the ricocheting of the bullets. The same applies to count 3 they are found guilty of assault. Sentencing Judgment The facts are by and large common cause. The accused persons have been convicted of murder with constructive intent. It is being alleged that acting in common purpose they shot at the deceased’s group resulting in injuries on 2 members of the deceased person’s gang and resulting in the death of the deceased. They are trained security personnel who had been trained in the skill of using guns. Their conduct of shooting live bullets at human beings shows that there was reasonable foreseeability that death would occasion. That is in respect to count 1 and that serious bodily harm would occur to any person who would come into contact with the residue of the bullets or gunfire. In respect to count 1, the action of one, triggered the actions of the other. The actions of one accused person triggered the actions of the other accused person. However, the autopsy report and the ballistic report as juxtaposed to the evidence of the investigating officer show that it is accused 1’s gun which caused the fatal injuries. It is also accused 1’s gun that caused the injuries sustained in count 2. Therefore, there is need to differentiate the sentences meted out to the 2 accused person. The court has taken into account the submissions made in mitigation as well as the sentencing report and victim impact statements. Both accused persons are young adults with HCC 76/24 HCCR 466/24 family responsibilities. Accused person number 1 falls into the category of youthful offenders. Nonetheless, both are prone to impulsive and immature decisions. What is further mitigatory, as advanced by their defence counsel, is that they were on a tour of duty and they over reacted. This is distinguishable from offences whereby people are shot under criminal activities. What is aggravatory however is that life was lost. This was preventable. The deceased’s family was orphaned. There was the use of a fire arm which was aimed at people without restraint. The court is mindful of the fact that there is need for deterrence balanced with reformation and that each case should be considered on its own merits. What is disturbing in cases of this nature is that the accused persons though they have the right to defend themselves, their lies further incriminate them. There is an adage that the truth always sets free. In order to defend themselves they invent weapons which were not there in the first place and the need for self defence. They lose the sympathy of the court by doing so. They alienate themselves with the courts. In count 1, accused number 1, is sentenced to 10 years, 4 years suspended for 5 years on condition that accused person does not commit similar offences. Guidance has been sought from the case of persuasive authority that of S v Pistorious and the unique circumstances surrounding this case, in that the accused person started talking amicably or discussing amicably with the deceased and his team for over an hour illustrating their patience. The catalyst was the headman. The presence of the headman changed the tempo. Therefore, this justifies the departure from the presumptive sentence. In count 2 accused person number 1 is sentenced to 2 years imprisonment. This is because although there were no permanent injuries the accused person took the risk of firing a gun, pointing it at people. Of these 2 years imprisonment, 1 year is suspended for 5 years on condition that the 1st accused does not repeat the same offences. In respect to count 3, 2 years imprisonment with one year suspended for 5 years on the same conditions. All the 3 sentences are to run concurrently. Accused number 2 His degree of blameworthy is low. Though he did shoot at the people as evidenced by the other cartridges that were found on the scene there was no evidence that was placed HCC 76/24 HCCR 466/24 before the court that his shot struck any of the intended victims. As already been concluded he had been ropped in by virtue of the doctrine of common purpose. For that reason, in count 1 he is sentenced to 5 years imprisonment with 3 years suspended with conditions he does not commit similar offences. In counts 2 and 3 by the same doctrine of common purpose, there will be uniformity in sentencing. He is sentenced to 2 years imprisonment in each count with 1 suspended on the same conditions. The sentences are to run concurrently. National Prosecuting Authority for the State. Legal Aid Directorate, for the Accused.