S v Matete (21 of 2024) [2024] ZWCHHC 21 (5 March 2024)

1 HCC21/24 THE STATE versus JUSTICE JUNIOR MATETE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI 25 January, 27 February & 5 March 2024 Assessors: Mr Chivanda Mr Mutombwa Criminal Trial G. T. Dhamusi, for the State R. Magama, for the Accused MUZOFA J: [1] In this case a simple issue on who should keep the accused and the deceased’s sister’s medication led to a heated dispute which resulted in the death of the deceased. [2] The accused and the deceased were brothers. On the 21st of October 2022 the accused and deceased’s sister was prescribed some tablets to manage her condition. The brothers were responsible enough to consider how and when she should take the tablets. The accused suggested that the deceased keep the tablets so that his wife would remind their sister to take the tablets regularly. [3] They argued each presenting their reasons why they should not keep the tablets. The discussion degenerated into a physical confrontation. The deceased slapped accused. [4] What ensued thereafter is in dispute. The State alleged that he accused assaulted the deceased all over the body with clenched fists and a log with intent to cause his death or realising that there is a real risk or possibility that his conduct may result in death but continued to engage in that conduct. He was charged with murder in contravention of s47 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The outline of the State case was tendered and marked annexure 1. [5] The accused pleaded not guilty to the charge and raised self-defence. The defence outline was tendered and marked annexure 2. HCC21/24 The State Case [6] The following exhibits were tendered by consent; i. The post mortem report. The cause of death was recorded as right brain subdural hematoma, right temporal parietal lined bone fracture and severe head trauma. Affidavit by Doctor Mayedo. A wooden log 1,68cm long weighing 1,65kg. The confirmed warned and cautioned statement. ii. iii. v. In his response to the caution the accused narrated what transpired which is similar to his defence outline. [7] The evidence of 5 witnesses was formally admitted in terms of s314 of the Criminal Procedure and Evidence Act. The evidence is as follows; [8] Joseph Matete, he was a brother to both the deceased and the accused. On the fateful day, he was at home with the two. An altercation ensued between the accused and the deceased about their sister’s tablets. The deceased became aggressive and assaulted the accused. The accused retaliated. He tried to refrain them, he could not. He rushed to a neighbor to assist. On his return he found the deceased lying on the ground groaning in pain. With the assistance of the neighbors, they took the deceased to the hospital. [9] Arnold Muduvuri, he received a call from Joseph requesting for transport to take the deceased to the hospital. He obliged. He then proceeded with the deceased and Joseph to Kadoma Hospital where the deceased was pronounced dead on arrival. [10] Ottilia Chikuhuhu, was the investigating officer. When she was allocated the case to investigate, she went to the scene of crime. At the scene of crime, she recovered a wooden log used by the accused to assault the deceased. She recorded witness statements. Subsequently she recorded a statement from the accused which was confirmed by a Magistrate sitting at Kadoma Magistrates’ Court. Constable Emmanuel Mutema witnessed the recording of the statement. [11] Dr Mayedo, a medical doctor based at Parirenyatwa Hospital examined the deceased’s remains and recorded the findings in the post mortem report. HCC21/24 [12] One witness, Moline Dube who was at the scene of crime gave oral evidence. She was the deceased’s wife. On the day in question, she arrived home from Mafuriranwa, the deceased and the accused were already arguing. They did not even respond to her greetings. [13] The accused was the elder brother and had insisted that the deceased keep the tablets since he was married. His wife would remind their sister. The accused was unmarried and reckoned that his room was easily accessible by many people. The deceased would have none of that. He became very abusive to the accused advising him to get married so that he can give orders to his wife. Deceased then slapped the accused. [14] The two started fighting. They were still indoors then the deceased took a knobkerrie behind the door and hit the accused, it broke. The accused picked a piece of firewood, tried to strike the deceased who snatched the firewood. They continued to fight. Joseph tried to restrain them. He failed. He went to some neighbors to seek help. [15] It seems at some point the accused and deceased were no longer in close combat. The accused walked to their garden which was about 10 to 12metres and picked a log. The deceased was hard on his heels following about 2 meters apart. When the accused picked the log, he warned the deceased that he was no longer interested in fighting him. The deceased continued to trail the accused, he was unarmed. All of a sudden, the accused turned around and struck the deceased once on the dead. [16] The deceased fell down. The accused continued to kick the deceased while he lay helplessly down. Joseph then arrived with some neighbors. The deceased lay groaning in pain. They took him to the hospital. The State closed its case after the witness was cross examined. The Defence Case [17] The accused adopted his defence outline and supplanted in with oral evidence. His narration of events was almost similar to Moline’s evidence. The only point of departure was what transpired when they were outside in the yard. The accused said the deceased followed him carrying a knobkerrie. The deceased hit him twice at the back, he turned and struck the deceased with a log. He denied that he continued to strike the deceased when he fell. He said when the deceased fell, he panicked and dropped the log and left. He was shocked. HCC21/24 The Law [18] The onus on the State to prove beyond a reasonable doubt that the accused was both the factual and legal cause of the deceased’s death. Intention is a factual issue and can be inferred from the accused’s conduct. See S v Mugwanda 2002 (1) ZLR 574 (S). [19] Self defence is a complete defence in specific intention crimes where it is shown that the accused was under an unlawful attack or the attack was imminent, his or her conduct was necessary to avert the unlawful attack and could not escape from the attack, the means used must be reasonable in the circumstances and the harm was directed to the attacker. See s253 of the Criminal Code, S v Metendera HMA 2/17. [20] In assessing whether self defence is a complete defence the court must not take an armchair approach and evaluate the evidence from an abstract position. In terms of s253(2) of the Criminal Code the court must take into account the circumstances that the accused found himself in and what he must have been going through emotionally at the time. Simply put the court must put itself in the accused’s shoes. The assessment is subjective to the accused and his situation at the time. Factual and legal analysis [21] There is no doubt that the accused was the factual cause of the deceased’s death. He struck the deceased with a log which caused the injuries that led to his death. There was no evidence of any legal intervening act to break the causal link. [22] The accused raised self-defence. Moline the sole witness who gave oral evidence was the deceased’s wife. We are alive to the natural human inclination to take sides and exaggerate evidence in favour of one’s spouse. In this case Moline’s evidence on what transpired between the accused and the deceased before the fatal blow corroborated Joseph’s evidence in all material respect. [23] We also accept that the accused walked away and announced that he no longer intended to continue fighting the deceased. Walking away or escaping from a physical confrontation is the first thing that is expected as envisaged s253(1) (b) of the Criminal Code. However where the threat or attack persists despite the walking away it is every individual’s HCC21/24 right to use violence to avert the attack. The statement that ‘natural reason permits one to defend oneself against danger’1 is apposite in this case. [24] Either way the accused was entitled to strike back. Even if we accept Moline’s evidence. The deceased followed the accused in the dark, trailing right after him. The accused was entitled to think that the deceased was about or would at any time attack him from behind. The deceased had demonstrated that he did not care about the accused’s authority as elder brother he was belligerent and the aggressor in the hut. Surely to expect the accused to be sober and act as if there was no threat would be expecting too much from the accused. We reject the State’s submission that the accused used a fairly big log and targeted the head, a vulnerable part of the body thus he had legal intention to cause the deceased’s death. [25] The submission by the State is an armchair approach with no regard to the circumstances of the case. We were told it was getting dark. The accused must have felt that an attack was imminent so he must strike first before the deceased struck him. Otherwise if the deceased did not intend to attack him, there was no reason to follow the accused. In those circumstances there is no time to decide on which weapon to use, the nearest weapon would be the best. Similarly there would be no time to even reflect where to direct the blow. We cannot fault the accused’s conduct. He was under immerse pressure after being attacked by the deceased in the hut. He decided to leave but the accused followed him. [26] In the final, we find that the accused was under attack or there was an imminent attack on his person. The means used were proportionate to the attack to avert the danger and the attack was directed to the deceased who was the attacker. Accordingly the accused is found not guilty and acquitted. National Prosecuting Authority, the State’s legal practitioners. Murisi & Associates, the Accused’s pro deo legal practitioners. 1 Jonathan Burchell, Principles of Criminal Law ,5th Ed @p121