S v Bere (CRB 22 of 2021; HMT 17 of 2021) [2021] ZWMTHC 17 (1 April 2021)

1 HMT 17-21 CRB 22/21 STATE versus NICHOLAS BERE HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 23 March and 1 April 2021 ASSESSORS: 1. Dr Sana 2. Mr Mudzinge Criminal Trial (Murder) Ms T. L. Katsiru, for the State L. Mhungu, for the accused MUZENDA J: The accused was arraigned before us facing one count of Murder and second count of Attempted Murder. In count one the state alleges that on 25 November 2019 and at Bembezeni Compound, Roscommon Estate, Chimanimani, accused shot Beware Tsarara once on the chest with an optima Shotgun thereby causing injuries from which the said Beware Tsarara died. In count two it is alleged that on the same date and place the accused unlawfully attempted to kill Shingirirai Mafake by shooting him once on the upper side of his left hand and once on the left side of his chest with an optima shotgun resulting in injuries from which Shingirirai could possibly have died. The accused pleaded not guilty to both counts. Facts Accused is a resident of Bembezeni Compound Roscommon Estate, Chimanimani, where he is employed as a security guard. The now deceased and the complainant were residents of Dherude 2, Dzingire Village, Chief Muusha, Chimanimani On 25 November 2019 deceased and a group of people approached Roscommon guardroom where the accused was on duty. The group of people was shouting. The mob damaged the entrance door of the guardroom and smashed window panes. The accused fired HMT 17-21 CRB 22/21 12 Bore optima shotgun towards the crowd and shot deceased on the left collar bone and died on the spot. Accused jumped from guardroom through the window and whilst outside the guardroom, shot complainant on the upper side of the left chest. Complainant fell and became unconscious. Both deceased and complainant were ferried to the hospital. A post mortem report shows that the cause of death was due to acute blood loss from the gunshot wound. The accused in his defence outline states that on both occasions he was acting in self-defence. Whilst carrying out his lawful duties he fell under an unlawful attack from both, the now deceased and the complainant who were in the company of a mob. The mob was armed with weapons and machetes. The mob pronounced its intentions to attack the guards, and accused upon sensing danger locked himself in the guardroom. Accused was spotted inside the guardroom by a member of the mob and when the windows were broken accused perceived that the mob was determined to kill him. He resolved to escape through the windows of the guardroom and fired the firearm through the window and ran away from the scene. According to the accused the means used was reasonable in all the circumstances and his conduct on both occasions was lawful. The question for determination is whether accused on both occasions when he shot the now deceased and complainant did so in self-defence. Issues in common cause in the matter. The following issues seem to be uncontroverted and palpably clear from the evidence of both the state and defence:- (a) There has been a fairly odd and outstanding dispute between Roscommon Estate on one hand and 3 occupants resettled by the government on a piece of land claimed by Roscommon Estate proprietor. The dispute has been attaining since 2003. (b) The acrimony between the parties has claimed a number of lives. Matters had been referred to civil courts but without resolution. The Government ministries had been involved but without solution. (c) On 25 November 2019 deceased and his group indeed approached accused at his workplace armed with among other weapons machetes, the deceased was found to be lying at a place where there were 2 machetes. (d) Prior to the shooting of deceased, the mob damaged the door and smashed the window panes to the guardroom (e) At the time deceased was shot at he was four (4) metres from the guardroom. HMT 17-21 CRB 22/21 (f) When complainant was shot twice, he was at least 10 metres from where accused was, well outside the guardroom. (g) The accused admits unreservedly causing the death of the now deceased and injuring the complainant on the date in question. Analysis of Evidence As already observed the crystalisation of evidence resulted in what is already spelt out above as common cause. Most of the evidence led by the state was not disputed and the bulk of it was admitted in terms of s 314 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. Taurai Mafake and complainant testified and repeated and consolidated what is in the state summary. The investigating officer Detective Sergeant Badza testified and gave a vivid clarification of issues which again turned out not to be in dispute. The only eye witness hence become the accused himself. His evidence in our view would greatly assist to show the events leading to his shooting the now deceased and complainant. When the accused testified in court, he stated that when he got to his work place at the guardroom he got to report about the afternoon events. He was advised to be on alert. Around 2000hrs he heard dogs barking outside the guardroom and soon thereafter heard people’s voice shouting and chanting slogans. He became terrified due to the nature of those people’s utterances. He went on to secure the door to the guardroom. Part of the mob came to the door, and damaged it. Others smashed the window panes using machetes. The accused felt that he was going to die so he decided to fire the gun for he felt further that the mob would force entry into the guardroom. He fired the gun to scare the mob and continued to fire when he realised that the mob was dispersing. Whilst inside the guardroom he fired 6 times and according to him he directed the shots where they were people. However when he fired the first it is the bullet that shot the now deceased. When he left the guardroom he fired the seventh shot, to ascertain that it was safe to leave. He repeated that he acted in defence of self. During cross- examination and clarification sought by the court it became clear that accused shot at deceased point blank, he was seeing the now deceased when he shot him. He saw him falling. He also shot complainant from a distance of ten (10) metres not once but twice judged by the medical report produced by the state. The accused’s evidence in chief and summary of defence evinces conspicuous inconsistences and deviations. Paragraph 2 (e) of his defence outline seem to indicate that he shot through the window to scare the mob and fired about seven times, then dashed through the window and left the scene. In his evidence in court, he did not fire randomly he aimed the HMT 17-21 CRB 22/21 gun on the now deceased and saw him falling. He did not fire all seven shots whilst on the guardroom, the seventh shot was done whilst outside, virtually according to him when the coast was clear but in order to make sure that he would not be subjected to a surprise attack, he shot in the direction where people had fled. Medical evidence establish that complainant was shot twice and sustained two bullet wounds. If the accused discharged the gun only once whilst outside, how did the complainant sustain the second bullet wound? We are satisfied that complainant was shot at twice by the accused after the latter left the guardroom. A closer analysis of the accused’s evidence shows that he faired poorly in explaining exactly what he did which led to the shooting of the deceased and complainant. His version glares with contradictions which were left unexplained to a larger extent. Although he had been invaded by the rowdy mob which had damaged the door and smashed window panes, its not clear at the time the first shot was made what form of imminent danger accused was exposed to. No warning shots were given by the accused, the first shot was on target. When accused left the guardroom he was no longer under any risk but proceeded to shoot complainant, not once but twice. The accused in his own words stated that he wanted to be sure that all was well, but pa