S v Kamba (CRB MUT R 34 of 2017; HH 205 of 2017) [2017] ZWHHC 205 (28 March 2017)

1 HH 205-17 CRB MUT R34/17 THE STATE versus CHENGETAI KAMBA HIGH COURT OF ZIMBABWE CHATUKUTA & MUSAKWA JJ HARARE, 28 March 2017 Review Judgment CHATUKUTA J: The accused was convicted of contravening s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 6 years imprisonment of which 2 years were suspended on condition of future good behaviour. The following facts are common cause: The accused had an altercation with Tirivangani Sigauke. The deceased was roped in to assist in resolving the dispute. The deceased was unable to assist. Instead, he in the company of Sigauke, waylaid the accused as he went home and started assaulting him. The accused responded to the onslaught by throwing stones at deceased and Sigauke. He was able to flee. The duo was undeterred and pursued him. The accused ran to a nearby homestead seeking refuge. There was no one at the homestead to assist him. The deceased and Sigauke were still in hot pursuit. The accused drew out a homemade knife and stabbed the deceased in the chest. The deceased died of severe intra-thoracic haemorrhage. It appears from the post mortem report that the accused stabbed the deceased only once. There is no indication of the force used to inflict the fatal wound. Whilst accepting that the deceased was the aggressor and had pursued the deceased to the end, the trial magistrate did not consider that the accused might have acted in self- defence. Had he done so he might not have convicted the accused as self-defence can in certain circumstances amount to a completed defence. The requirements for self-defence are provided for in s 253 of the Code. Section 253 (1) sets out the requirements as follows: “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: HH 205-17 CRB MUT R34/17 (a) When he or did nor omitted to do the thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and (b) 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 in subsections (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.” The import of subsection 2 is that each case must be determined in light of its circumstances. In doing so, the court must not take an armchair approach. As stated in S v Banana 1994 (2) ZLR 271 (SC) at 274 D-F “Where the self-defence involves excessive or disproportionate force there may be a finding of guilty of culpable homicide. This is on the basis that the accused was mistaken in thinking himself justified in killing. As TROLLIP JA put it in S v Ngomane 1979 (3) SA 859 (A): "... although he acted in self-defence, he ought reasonably to have realised that he was acting too precipitately and using excessive force, and that, by stabbing the deceased with such a lethal weapon on the upper part of the body, he might unnecessarily kill him." But also, as HOLMES JA said in S v Ntuli 1975 (1) SA 429 (A): ". . . the court adopts a robust approach, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence." See also S v Nicolle 1991 (1) ZLR 211 (S) at 217B-D, and the judgment of the CHIEF JUSTICE in S v Mandizha S-200-91, which dealt specifically with the question whether the self-defence was excessive. It repeated the point, made earlier in S v Phiri S- 190-82, that one cannot take an armchair view of events. They must be seen and judged in the light of the circumstances of the occasion.” In Phiri v The State S 190-82, FIELDSEND CJ stated that: “It is trite that one must assess the reasonableness of a person’s behaviour when he is acting in self-defence, not in the rather rarefied atmosphere in the Court, but one must look, even though objectively, at the situation as it existed at the time and in relation to the particular person one is considering.” HH 205-17 CRB MUT R34/17 From the facts which are common cause, the attack had commenced. The first requirement was therefore satisfied. It appears the accused had taken flight after the attack had commenced. It is trite that the best self-defence is to take flight and that is what the accused did. As indicated above the deceased and Sigauke were undeterred by the stones which were thrown at them by the accused and the fact that deceased had fled from the scene. The escape was short-lived as the duo pursued him. The accused could not find refuge at the nearest homestead. It appears he could not avert the attack any further. Having briefly warded off the attack with stones, which are lethal weapons, and the duo not deterred, it appears the accused responded in the only manner he could under the circumstances. It therefore appears the second and third requirements would have been met. With the onslaught he was facing, the possibility of a fatality cannot be ruled out. The accused may well have been in fear of his life. Whilst death cannot be a desirable result, it appears under the circumstances it was not grossly disproportionate to what the accused could have suffered. The circumstances of this case begged for the trial magistrate to assist the accused who was an unrepresented accused as the facts do not preclude self-defence. In S v Dube & Anor 1988 (2) ZLR 385 (SC), DUMBUTSHENA CJ laid down some of the questions that a trial magistrate must consider in cases that require legal assistance. He observed at 392 H to 393 F that: “In our view judicial officers trying such cases should ask themselves three questions: 1. Where the accused has pleaded guilty, would it be appropriate nonetheless to enter a plea of not guilty in terms of the provisions of s 255A of the Criminal Procedure and Evidence Act? 2. Where the accused is unrepresented, would it be fair and appropriate to advise him of the complexities of the matter and enquire whether he has considered obtaining legal representation? 3. If satisfied that the accused should have legal representation but cannot afford it, should the court certify that he should have legal representation in terms of the provisions of s 3 of the Legal Assistance and Representation Act [Chapter 66], as amended by s 2 of Act 21 of 1974.” In S v Magore at 92 B –C, MUCHECHETERE J cited with approval the statement by BEADLE CJ in R v Muchena 1966 RLR 731(A) at 736 H that: “…. This court has repeatedly stated that where an accused person is undefended, and particularly where the accused person is not particularly intelligent, there is an obligation to see that the accused’s case is fairly put before the court and also assist HH 205-17 CRB MUT R34/17 the accused in his defence, where that is required. There is an obligation to see that the prosecutor does not take unfair advantage of the accused.” In S v Machokoto 1996 (2) ZLR 190 (H), GILLESPIE J observed at 200 G – 201 B that: “Where it is necessary to invoke this provision (s 271 (2)(b)(i)), then the essential elements of the offence must be explained in such a way as is calculated to inform the accused, id unrepresented, of the nature of the charge in sufficient clarity and detail as will suggest to him, in his knowledge of the matter, whether he has a defence to offer. Obviously, I do not intend to imply that the magistrate should be suggesting defences to the accused. On the other hand, it must not be overlooked that where a person on trial has not had the benefit of legal advice, the only possible source of independent assistance towards an understanding of the nature of his predicament will be the bench. The mere fact that the person wishes to plead guilty is no reason to be cursory in the explanation of the essential elements. On the contrary, it is precisely because an admission of guilt is tendered that it is necessary to ensure that the accused has applied his mind to the true import of the charge and is properly aware that anything he may wish to say in his behalf could constitute a defence.” The accused in the present matter is a youthful offender, only 22 years of age at the time of prosecution. He submitted in mitigation that he was in Grade 7 when he was arrested (despite being 22 years old). Given this background, he is unlikely to have appreciated the proceedings, let alone that he had a possible defence. The accused therefore pleaded guilty without realising that he had the defence of self-defence available. In light of the above, the conviction is unsafe and should be quashed. I have caused the issuance of a warrant for the immediate release of the accused. In the result it is ordered that: The conviction be and is hereby quashed. MUSAKWA J agrees ……………………..