S v Mugarisanwa (62 of 2023) [2022] ZWHHC 62 (5 November 2022)

1 HH 62-23 CRB 84/22 THE STATE versus TINASHE MUGARISANWA HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 3 and 5 November 2022 Trial P Gumbo, for the State W Musengwa, for the accused MUREMBA J: The accused is facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23], (the Criminal Law Code). It is alleged that on 11 November 2021 at or near Shamva Gold Mine, Shamva, the accused unlawfully and intentionally or realizing that there was a real risk or possibility that death would result, shot Remember Musariri (hereinafter called the deceased) with a 12 bore Beretta shot gun thereby causing injuries from which the said Remember Musariri died. The accused who is a security guard pleaded not guilty to the charge raising the defence that he shot the deceased in self defence and in the defence of his fellow security guards. The defence was raised in terms of s 253 of the Criminal Law Code. The State led evidence from four witnesses, namely Chenjerai Chigumbu, Leonard Karemba, Nyasha Chagutira and Doctor Pesanai. Leonard Karemba and Nyasha Chagutira gave viva voce evidence whilst the evidence of Chenjerai Chigumbu and Doctor Pesanai was admitted in terms of s 314 of the Criminal Procedure and Evidence Act (the CPEA) [Chapter 9:07]. Leonard Karemba and Chenjerai Chigumbu were eye witnesses to the shooting of the deceased by the accused. Nyasha Chagutira was the investigating officer whilst Doctor Pesanai examined the remains of the deceased and compiled the post mortem report which states that death was due to haemopneumothorax and gunshot wound chest. The deceased was 32 years old. HH 62-23 CRB 84/22 The accused was the sole witness for his case. However, his evidence and that of the 2 State witnesses who witnessed the shooting was similar. We will outline the evidence as follows. Leonard Karemba who is a senior security officer at Shamva Mine was the State’s key witness. He began by giving context to the events that led to the shooting of the deceased on 11 November 2021. He said that on 8 November 2021 some illegal gold panners unlawfully entered a mining shaft at Shamva Mine. When the mine security guards tried to apprehend the illegal gold panners, the illegal gold panners threw some explosives at them. Some of the security guards got injured and had to be hospitalized. Three days later, on 11 November 2021, the same illegal gold panners who had entered the mining shaft on 8 November 2021, made their way out by blasting some explosives again thereby dispersing the security guards who were manning the mine entrance. A radio communication was then made to that effect to the senior security officers who were at the offices. The senior security officers included the witness and the accused. Two teams/groups of security officers/guards were created. They had instructions to chase after the illegal gold panners and apprehend them. One team was led by the accused who was armed with a 12 bore Beretta shot gun. Leonard Karemba was in the other team. The two teams took different directions as they tracked the illegal gold panners. They could see the illegal gold panners as they tracked them. In each team there were some security guards who had guns. Those security guards who had guns were firing warning shots in the air in a bid to stop the illegal gold panners. Several warning shots were fired, but the illegal gold panners did not stop. In the group that Leonard Karemba was, two security guards had guns but Leonard Karemba did not have. In the group that the accused was, it was only the accused who had a gun. However, Leonard Karemba could not tell how many warning shots were fired by the accused since the two were in different groups. The two groups/teams later converged in Chibuku river where they had seen the illegal gold panners going to hide. As the security guards were searching for them, the illegal gold panners then emerged from their hide-out. They emerged at a distance of 10 – 12 metres away from where the accused and his team were. They emerged facing the accused’s team. This was happening on the river bank. Leonard Karemba and his team were not on the river bank but across the river, on top and about 4-5 m away from the river bank where the accused’s team and the illegal HH 62-23 CRB 84/22 gold panners were. Leonard Karemba and his team were very close and could see what was happening down the river bank across the river. When the illegal gold panners emerged, they were four and the deceased formed part of the group. They were ordered by the accused’s team to sit down and surrender so that they could be arrested, but they did not take heed. Instead they started advancing towards the accused’s team. The two opponent teams were facing each other. The deceased and two of his members were wielding machetes. It is only the fourth member who had no machete. As the deceased’s team continued to advance, security guards who had guns fired warning shots. Leonard Karemba said that he could not tell which security guards had fired. However, despite the warning shots the illegal gold panners continued to advance towards accused’s team as they made utterances that they were not afraid of security guards. When the deceased and his team were 4-5m away from the accused’s team that is when the accused fired the fatal shot. It is not in dispute that the deceased was shot on the left chest, on the fourth and fifth ribs and on the left hand. He died at the scene some minutes later. The evidence of Leonard Karemba was uncontroverted by the defence. In his testimony the accused confirmed the incident of 8 November 2021 which led to the events of 11 November 2021. He confirmed that on 11 November 2021 he was leading his team as they were tracking the illegal gold panners. In the process, his team saw the illegal gold panners and shouted for them to stop but they did not. Instead they started running. This caused the accused to fire 3 warning shots as he ordered them to stop and surrender. The illegal gold panners continued to run until they reached the river bank of Chibuku river and hid in the trees. The accused and his team started to search for them. They saw 4 whom they ordered to come out. The illegal gold panners emerged at a distance of about 8 to 10m away from where the accused and his team were. The accused said that he ordered them to stop and surrender but they did not take heed. Instead they started advancing towards him and his team as 3 of them were wielding machetes. The one who had no machete was walking behind the three who were armed. Accused said that when the illegal gold panners were about 6-7m away from him and his team he fired a warning shot, but they did not stop. At a distance of 5m, the accused fired the second warning shot. Still the deceased and his team did not stop. At a distance of 3-4m, the accused fired the fatal shot that hit the deceased. That is when the deceased’s colleagues scattered and ran away. HH 62-23 CRB 84/22 That the accused fired two more warning shots at the river before he fired the fatal shot is confirmed by Chenjerai Chigumbu who is a State witness. He also confirmed the story that the deceased and his colleagues continued advancing towards the accused and team as they were wielding machetes. As already stated elsewhere above, the accused’s defence is simply that he was acting in self defence and in defence of his group/team members who were not armed. The defence is in terms of s 253 of the Criminal Law Code. It is titled ‘defence of person’. He tendered this as a complete defence to the murder charge. In terms of s 253 of the Criminal Law Code, self defence or defence of another is a complete defence if all the requirements that are spelt out in the provision are met. For the defence to suffice it should be shown that: a) the accused acted believing on reasonable grounds that the unlawful attack had commenced or was imminent; and b) the accused believed on reasonable gr