S v Manyange (150 of 2025) [2025] ZWBHC 150 (5 July 2025)

1 HB 150/25 HCBCR 6258/24 The STATE Versus PLAYMORE MANYANGE HIGH COURT OF ZIMBABWE CHIVAYO J GWERU, 27 JANUARY & 5 JULY 2025 Assessors: Mr. Shumba Mr. Ndubiwa Criminal Trial S. C. Chikuni, for the State N. B. Nyathi, for the Accused CHIVAYO J: The accused Playmore Manyange was arraigned before this court facing a charge of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereafter referred to as the Code) that is, murder. The accused person shot and killed the now deceased in his homestead with an FN Rifle in the early hours of the morning, in front of his family, who were watching. The state alleged that on the 15th of March 2020 and at Moffat Moyo’s homestead, Village Khaya, Chief Malisa, Silobela, the accused person unlawfully caused the death of Bhekani Moyo (the now deceased) by shooting him once on the chest intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death, continued to engage in that conduct despite the risk or possibility. The now deceased succumbed to injuries of the gunshot wound shortly afterwards. Facts. It is the state’s contention that on the 15th of March 2020 at around 0500 hours the accused whilst armed with an FN Riffle Serial Number 3000 loaded with a magazine of ten rounds teamed up with Tapfirenyika Musekiwa and Pious Musindo and headed to the now deceased’s homestead. Upon arrival at the now deceased’s homestead the accused and his colleagues introduced themselves as police officers to Ngqabutho Moyo and Moffat Moyo and advised them that they were looking for the now deceased who was wanted for robbery and assault by ZRP Silobela. Ngqabutho Moyo and Moffat Moyo stated that they were unaware of the now deceased’s whereabouts which prompted the accused and Pious Musindo to carry out a physical check in the homestead, and they found the now deceased in his bedroom. The accused ordered the now deceased to come out whilst he was standing outside at the back window of the now deceased’s bedroom. The accused proceeded to hit the door open with the butt of a riffle, went inside the room but did not find the now deceased. The accused indicated that he was going to throw some tear gas. At that moment the now deceased who was hiding under the bed, came out. Pious Musindo then grabbed and dragged the now deceased to the outside and stood him against the wall. Accused proceeded to where the now deceased was standing with Pious Musindo. Pious Musindo then moved away from where the now deceased was standing against the wall. The accused then fired at the now deceased on the chest with an AFN riffle and the now deceased fell to the ground and died on the spot. Defence outline. The accused in his defence pleaded not guilty to the charge of murder. He pleaded self-defence, in that, on the day in question, he had received information of the whereabouts of the now deceased. The accused was on duty on the night the incident happened. He averred that he got information that the now deceased, who was wanted on suspicions of committing assault and robbery, was at his homestead. He armed himself with an FN Rifle SN 3000 with 10 rounds of ammunition, and teamed up with one Pious Musindo and Tafirenyika Musekiwa, and proceeded to the now deceased’s homestead. The accused alleges that upon arrival, they introduced themselves as police officers, and initially looked for the accused by inquiring from the now deceased’s relatives but could not locate him. The accused alleges that they then discovered the now deceased hiding in his bedroom wherein accused ordered the now deceased to come out. It is the accused’s allegation that the now deceased came out wielding a knife, fought with Pious Musindo, whom he overpowered, then came charging towards accused, again, wielding the knife, intending to harm him. The accused says he was left with no choice but to defend himself by shooting the accused on the chest with the rifle. The accused claims he acted in self-defence, and in the course of his duties. State case The first state witness, Sipho Munkungu, was the now deceased’s mother. She testified that on the day in question and around 4.00 am, police officers arrived at their homestead looking for the now deceased. It was her evidence that the police officers were violently going door by door, breaking open the doors using the butt of the firearm. She testified that they ultimately got to a room where the now deceased was in, and that one Pious Musindo apprehended the now deceased and that when the accused pitched up, Pious Musindo moved 2 metres away from where the now deceased was standing. She went on to state that at that time, the accused then discharged his firearm and shot the now deceased right into the chest, the extreme left hand into his chest cavity. She also mentioned that the now deceased soon after fell down and died. The accused immediately afterwards approached the body of the now deceased, shook him three times. At that time, according to the witness, Pious Musindo then mentioned to the accused that he had killed a person. The police officers then left and went away with the firearm. The second state witness, Moffat Moyo, is the father of the now deceased. His evidence corroborated that of the first state witness, serve to mention that he got to the scene at the time Pious Musindo was 2 metres away from the now deceased. He said he did not know how the now deceased got to be 2 kilometers away from Pious Musindo.The State also called Caroline Mpunzi who was the Investigating Officer in the matter, to give evidence. She brought to the attention of this court that she was allocated the matter on the 21st of October 2020, six months after the death had occurred. This court also noted that the knife exhibit, which was allegedly in possession of the now deceased, was handed over to the Investigating Officer by Pious Musindo, which was said not to be the correct procedure. The exhibit knife must have been handed over to the Police Station soon after the alleged offence was committed, says the Investigating Officer.The state closed its case. Defence case opened. The Accused [Playmore Manyange] To buttress his case, the accused took to the witness stand. He adopted his defence outline as his defence. In his defence accused confirmed that he was allocated the matter after receiving information of the now deceased’s whereabouts, wherein the now deceased was wanted on suspicion of having committed robbery and assault. It was stated in his defence that the now deceased had allegedly assaulted an individual with a knobkerrie, and in another incident had stabbed a person. He testified that on the day they went intending to apprehend the now deceased, it was him, Pious Musindo who is a member of the police constabulary, and Tafirenyika Musekiwe, a Police Officer. He testified that when he approached a room which he suspected the accused was hiding, he heard movements inside the hut, he ran around it and peeped through the window, using a torch. He stated that he saw the now deceased hiding under the bed and ordered him to open the door and sit down. It is then that the now deceased opened the door and, instead, came out carrying a knife. A brawl with Pious Musindo who was guarding the door ensued, so says the accused. The accused stated that he then went to cover for his compatriot, and when he turned around the corner, he met the now deceased who was coming towards his direction wielding a knife in his right hand. The accused confirmed that he then shot the now deceased once on the chest, and he died instantly. He claimed that he acted in self-defence as the now deceased was less than 2 metres from him intending to stab him with a knife. Accused confirmed that he shot the now deceased without firing a warning shot, as there was no time to do so. Pious Musindo Pious Musindo, also, testified before the court in support of the defence case. He stated that on the day he had a fight with the now deceased when he came out of his hiding. He said that the now deceased was carrying a knife in his right hand. He went on to say that he held the now deceased’s right hand during the brawl but was overpowered by the now deceased, and let go of his right hand. He thought the now deceased was about to stab him on the head, but it turned out he was not harmed by the now deceased. It was this witness’ testimony that after the deceased was shot dead, he took away the knife which the accused was allegedly wielding, and he went away with it. It was his evidence that he handed down the knife to one Douglas Maphorisa. This witness also testified that he handed over the knife to the Investigating Officer some 6 months later, with the knife having stayed in their police station.The Defence closed its case. State closing submissions. The state addressed the court in closing and submitted that this was a matter in which most facts are not in dispute, serve for a few issues as to the number of police who arrived at the scene, which state alleged the difference may have been because it was dark. Most facts were common cause. The only issue for the state was whether there was an unlawful attack on the accused person by the now deceased. The state submitted that the accused was under no unlawful attack, his claim of self-defence as such must not succeed. The State submitted no attack was made on either the accused or his compatriot Puious Musindo. It was submitted that even if this Court was to buy the defence story that the now deceased was wielding a knife, the means used to avert the attack, the state submitted, was unnecessary, given that the accused used a rifle against a homemade kitchen knife. The other issue was the issue of the knife itself. The State witnesses averred that the now deceased person did not carry any knife on that particular day, whereas the accused and his witness Puious Musindo alleged the now deceased was wielding a knife. The submission was that the issue of a knife was an afterthought, which was to sustain the accused’s claim of self defence. The state supported its submissions with the case of State v Nyasha Tavagadzamugari HCMA 40/23, where it was decided by Justice Mawadze that the defence of a person as provided for in Section 253 of the court can only be available to an accused who would have been under an unlawful attack and all other requirements are satisfied. In this Tavagadzamugari case (supra) it was decided that accused person was not under any form of unlawful attack at all. The said findings guided the State, in casu, to conclude that from the evidence adduced by both parties the accused person was not under any form of attack when he shot the now deceased. In conclusion, the State prayed that the accused person be found guilty of murder. Defence closing submissions. In closing address, the Defence maintainted that the accused was not guilty to the charge of murder as defined by section 47 of the Code as per his plea. They were satisfied that the defence of self-defence exonerated the accused. The defence counsel went on to submit that the accused was under unlawful attack from the now deceased, who was allegedly wielding a knife after the accused had been ordered to come out of his room. Initially, the now deceased is said to have had a tussle with Pious Musindo, but however overpowered him. The defence further submitted that the attack on the accused was imminent, as the now deceased was alleged to have been charging towards the accused, carrying a knife. The defence maintained that the now deceased was less than 2 meters away from the accused person. The defence heavily contended that, with the now deceased known to be a violent person and having previously stabbed a police officer, and with the accused unable to run away since he was unknown to the surroundings and it was also dark, it was necessary for the accused to shoot and kill the now deceased. They submitted that the actions of the now deceased fully met the requirements of self-defence in terms of section 253 of the Code. In the end, they prayed the defence succeeds, and the accused be found not guilty of murder and acquitted. Analysis of the facts and application of the law. The accused raised the defence of self-defence. For one to successfully claim self- defence, they must meet the requirements for defence as set out in section 253 of the Code. The section provides that: “(1) 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 when he or she did or omitted to do the thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; andhe or she believed on reasonable grounds that 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; andthe means he or she used to avert the unlawful attack were reasonable in all the circumstances; andany harm or injury caused by his or her conduct was caused to the attacker and not to any innocent third party; andwas not grossly disproportionate to that liable to be caused by the unlawful attack.”1 In casu, it was the defence testimony that the now deceased was found in his room and ordered to open the door and lie down. However, the defence allege that the accused in fact opened the door and started wrestling Pious Musindo, who was guarding the door. It was Pious Musindo’s evidence that he let go of the now deceased, who went on charging towards the accused. This court doubts that one would let go of a hand carrying a knife intending to harm someone in such circumstances. It defies logic, as the norm would be that in such circumstances, the witness would have been stabbed if he was indeed overpowered by the now deceased. The witness testified that the now deceased charged towards the accused person, who was carrying a riffle. This assertion also defies logic. Why would one charge towards a person carrying a riffle when they are armed with a knife? Such assertions leave a lot to be desired. In the unreported case of S v Mitch Tafirenyika HCBCR 4009/24 (hereafter referred to as S v Mitch Tafirenyika) the court commented that: “Whatever, what is clear is that the attack if ever it was there or there was one which had not commenced because the accused’s defence is that he reasonably thought it was imminent because the now deceased had raised a machete and was advancing towards him. His assertion that’s the accused’s assertion does not ring truth”.2 1 Section 253(1) of the Criminal Law (Codification and Reform) Act. 2 S v Mitch Tafirenyika HCBCR4009/24 page 8. The abovementioned case is similar to the present matter. In the Tafirenyika case (supra), the accused was a Police Officer who had shot and killed the now deceased, who was allegedly raising his machete, and claimed self-defence for killing the now deceased. The court in that matter rejected the claim of self-defence as it was of the view that accused was not in imminent danger. This court is of a similar view that the accused cannot claim self-defence under such circumstances. The defence witness also brought to the attention of the court that after the now deceased had been shot, he took the knife which was allegedly being wielded by the now deceased during the altercations. He testified that he surrendered the knife to the police station, yet the same defence witness ultimately physically took the said knife to Kwekwe Investigating Officer instead of the Investigating Officer to have signed for such exhibit from Police Station Exhibit Book as proof that the knife was always an exhibit. The investigating officer stated tgat tge handing over of the knife by Pious Musindo was unprocedural.As stated above, this court does not believe that the accused was under imminent unlawful attack from the now deceased. This means the first requirement for self-defence is not satisfied, and accused cannot rely on defence for his actions.From the onset when the accused and those who were with him received the information that the now deceased was at his homestead there was no justification for them to have carried an FN Riffle. Police have other nonlethal means to effect arrest other than using an FN rifle. Usage of rubber bullets or button sticks would have been more appropriate in this case but were never used. The accused, who is a trained member and regular member of the Zimbabwe Republic Police, is trained to make use of a fire arm, and as such should have known when to use it. This court is not satisfied that the use of a firearm in these circumstances was justifiable. In the abovementioned case of S v Mitch Tafirenyika, the court held that: “was the attack used necessary to avert the purported attack? To us there was a lot more that the accused could have done. He wanted us to believe that the now deceased was a stupid person to think that armed with a mere machete he could charge towards an adversary holding a gun ready to fire and overpower him. If the now deceased was that daft still the accused as a police officer was expected to rise above the alleged stupidity. He must have fired warning shots to alert the now deceased that he was prepared to discharge fire and to shoot at him if he did not relent”.3 3 S v Mitch Tafirenyika page 8. This court asked the accused why he did not fire warning shots to alert the now deceased at the time the accused saw him holding or picking up a knife, the accused however mentioned that he did not have time to do so. This court is of the view that accused should have warned the now deceased the moment he saw him pick up a knife, and therefore had enough time to give warning to the now deceased that he can make use of a firearm if necessary. The accused aimed at the now deceased’s chest.Whether or not it is accepted that the now deceased was holding a knife, the means used to avert the purported attack was totally unreasonable. A reading of section 253(1)(b) of the Code requires one to use reasonable means to avert imminent danger. In this particular case the accused acted unreasonable, and he therefore cannot rely on defence for his actions.In S v Mitch Tafirenyika, the court held at page 8 that: “Aiming a gun shot at a human being is no warning shot at all. It is shooting to kill that person as was decided in State versus Marata HCC 76/24 where it was held that a fire arm is a lethal weapon hence the need to fire warning shots in the air. Firing warning shots in the air is to give the person so resisting or the person who is threatening or unlawfully threatening accused to stop whatever action”.4 In casu, this accused never fired any warning shot. In State v Marata HCC 76/24 at page 4, the Judge went on to say “once the fire-arm is pointed at people the results are fatal. The ones reasonable feasibility that by shooting at people death would occur”. The same applies with the accused in this case. When he shot on the chest of the now deceased, he must have foreseen that his actions will result in the death of a human being. The FN rifle fires on three different levels it fires on single, rapid and automatic shots. The way he discharged that firearm clearly shows that he had moved the safety catch to a single firing mode. By firing the shot directed at the now deceased’s mid region, he thus intended to kill the now deceased.Murder is defined by section 47(1) of the Code to mean; “(1) Any person who causes the death of another person intending to kill the other person; orrealising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The accused shot the accused on the chest with the intention to kill him, or realising that there was a real risk or possibility that death may occur, continued to shoot the now 4 S v Mitch Tafirenyika page 8. deceased. This satisfies the mens rea requirement, which is one of the elements where one is charged with murder. Although it turned out that Pious Musindo is not an attested regular member of ZRP, this court was of the view that the accused, as a Police Officer and in charge of the operation, was the person to take the knife immediately when he shot the now deceased and realized that he was dead, as it was a vital piece of evidence for investigations. It is a clear indication that the existence of a knife must have been a cooked-up story so that the defence of self-defence could be sustained. The accused shot at the now deceased from close range, directing his shot at the now deceased’s chest. What else is expected when one is discharging a firearm, an FN Rifle into a human being? Death is obvious. Where one foresees death and is not worried and he goes on to engage that which causes death, that person is viewed as having the necessary intention to cause the death of a person. As decided in S v Mapfotche SC 84/21 by the Makarau JA, when the learned Judge of Appeal commented on section 47(1)(a) and (b) on intent or realisation of a real risk or possibility, wherein she commented, at page 10, that ‘killing or causing the death of another person with either of the two intentions is murder as defined by the section.’It is the ultimate decision of this court from the totality of the evidence led that the state has managed to prove its case of murder beyond reasonable doubt. Dispostion. The accused is accordingly found guilty of murder in aggravating circumstances. SENTENCING JUDGMENT. Introduction. In arriving at an appropriate sentence this court will consider what was said in mitigation and aggravation and the victim impact statement from the now deceased’s mother. Background. The offender Playmore Manyange is a male adult who was aged 32 at the time he committed the offence. He resided at V113, Amaveni, Kwekwe and was a serving member of the Zimbabwe Republic Police. On the 15th of March 2020 he shot and killed the now deceased Bhekani Moyo once on the chest with an FN Rifle, who died immediately from the gunshot wounds. The offender pleaded not guilty to the charge of murder, and after a contested trial, this court convicted him of murder. Mitigation In mitigation, it was brought to the attention of the court that the offender caused the death of the now deceased when he was on official duty. He is a first-time offender, he served in the Police Force for ten years and during this ten-year period of service he was blameless. The accused is the breadwinner of his parents and siblings, he recently got married and has two minor children. It was brought to the attention of this court that the offender never avoided prosecution as this is a 2020 murder case. This court was not advised, however, of why it took six months for this matter to be investigated. This court also noted that it took long for the matter to be brought to finality. Be that as it may, the pre-trial period where the offender was in suspense of the outcome of this matter is a torturous period. From 2020 to date, he was not aware of the fate of this matter and that on its own is very torturous and accepted as mitigatory. It was indicated by the defence that on the day in question the offender was effecting an arrest of the person who had allegedly committed robbery and assault. There was no pre-meditation in this matter and that is mitigatory. Aggravation. However, what is aggravatory in this matter is that the offender was a Police Officer. The reason why the offender was given a firearm by his Senior was because he was, as indicated by Pious Musindo, the member in charge of the operation on the day in question. The constitutional mandate of a Police Officer is clear, which is to maintain law and order. The offender was supposed to arrest suspects and bring them to court for prosecution. As much as this court appreciates that the crime was committed during the course and scope of duty as a Police Officer, Police Officers are not above the law. As a Police officer, the offender should have exercised care and diligence in carrying out his duties, which is not the case in this matter.The offender was in charge at that scene. He did not fire any warning shot which is a point in aggravation as highlighted by the State. The offender fired a firearm from a distance less than two meters. It was lethal. A clear message must equally be sent to Police Officers who would be trigger-happy that they must religiously follow the golden rule of the usage of firearms, that they must only resort to firing when firing is inevitable and is obligated to shoot to injure, not to kill. They must shoot to injure so that they effect an arrest. In this case the offender directed his one shot to the upper part of the now deceased’s body, the chest, a vital organ of the body. Even if we take it that the now deceased was armed with a knife as the defence would want us to believe, which was refuted by this court guided by evidence, usage of a lethal weapon was not necessary. He was trigger happy and did not act reasonable in the circumstances. The offender could have hit the hand that was carrying the knife using the full length of the FN Rifle to disarm the now deceased. Victim Impact Staement [Sipho Munkungu] From the victim impact statement from the now deceased’s mother, Sipho Munkungu it was put before this court that she was immensely affected by this incident. This gruesome scene affected all family members who saw it happen, even the children. She detailed how she was going about with a child who is in grade 3 and when that child saw a Police Officer, she started crying. This was because she witnessed the incident with her own eyes the day the now deceased was murdered and since then she fears Police Officers. This has left an undeniable mark in the mind of that child. Members of the public must have confidence in how the Police investigates cases. Range of sentence. There is need to understand the Sentencing Guidelines in terms of Statutory Instrument 146 of 2023, where an offender is convicted of a crime where there are aggravating factors. In such instances the presumptive sentence is 20 years’ imprisonment. Where there are mitigating factors which outweigh the aggravating factors, the presumptive sentence is 15 years imprisonment.What was aggravating in this case was the fact that there was usage of a weapon firearm. Once that is proved this court has no option and is bound by the minimum sentence of twenty years and to a maximum of life imprisonment, as provided for in the Sentencing Guidelines. Life was lost and the offender never paid any compensation, he never showed any sign of remorse or contrition. He felt that he was very right over what he did, that his alleged self-defence was justified.This court has lamented that no one is above the law. The offender was aware in terms of the Police service charter that he must discharge his duties within the limits of the law. Disposition Considering the totality of what was adduced in mitigation and aggravation, the offender is sentenced to twenty (20) years imprisonment. National Prosecuting Authority, state’s legal practitioners. G ambe Law Group, accused’s legal practitioners. 1 1 HB 150/25 HCBCR 6258/24 1 HB 150/25 HCBCR 6258/24 The STATE Versus PLAYMORE MANYANGE HIGH COURT OF ZIMBABWE CHIVAYO J GWERU, 27 JANUARY & 5 JULY 2025 Assessors: Mr. Shumba Mr. Ndubiwa Criminal Trial S. C. Chikuni, for the State N. B. Nyathi, for the Accused CHIVAYO J: The accused Playmore Manyange was arraigned before this court facing a charge of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereafter referred to as the Code) that is, murder. The accused person shot and killed the now deceased in his homestead with an FN Rifle in the early hours of the morning, in front of his family, who were watching. The state alleged that on the 15th of March 2020 and at Moffat Moyo’s homestead, Village Khaya, Chief Malisa, Silobela, the accused person unlawfully caused the death of Bhekani Moyo (the now deceased) by shooting him once on the chest intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death, continued to engage in that conduct despite the risk or possibility. The now deceased succumbed to injuries of the gunshot wound shortly afterwards. Facts. It is the state’s contention that on the 15th of March 2020 at around 0500 hours the accused whilst armed with an FN Riffle Serial Number 3000 loaded with a magazine of ten rounds teamed up with Tapfirenyika Musekiwa and Pious Musindo and headed to the now deceased’s homestead. Upon arrival at the now deceased’s homestead the accused and his colleagues introduced themselves as police officers to Ngqabutho Moyo and Moffat Moyo and advised them that they were looking for the now deceased who was wanted for robbery and assault by ZRP Silobela. Ngqabutho Moyo and Moffat Moyo stated that they were unaware of the now deceased’s whereabouts which prompted the accused and Pious Musindo to carry out The STATE Versus PLAYMORE MANYANGE HIGH COURT OF ZIMBABWE CHIVAYO J GWERU, 27 JANUARY & 5 JULY 2025 Assessors: Mr. Shumba Mr. Ndubiwa Criminal Trial # Criminal Trial S. C. Chikuni, for the State # S. C. Chikuni, for the State N. B. Nyathi, for the Accused CHIVAYO J: The accused Playmore Manyange was arraigned before this court facing a charge of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereafter referred to as the Code) that is, murder. The accused person shot and killed the now deceased in his homestead with an FN Rifle in the early hours of the morning, in front of his family, who were watching. The state alleged that on the 15th of March 2020 and at Moffat Moyo’s homestead, Village Khaya, Chief Malisa, Silobela, the accused person unlawfully caused the death of Bhekani Moyo (the now deceased) by shooting him once on the chest intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death, continued to engage in that conduct despite the risk or possibility. The now deceased succumbed to injuries of the gunshot wound shortly afterwards. # N. B. Nyathi, for the Accused CHIVAYO J: The accused Playmore Manyange was arraigned before this court facing a charge of contravening section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereafter referred to as the Code) that is, murder. The accused person shot and killed the now deceased in his homestead with an FN Rifle in the early hours of the morning, in front of his family, who were watching. The state alleged that on the 15th of March 2020 and at Moffat Moyo’s homestead, Village Khaya, Chief Malisa, Silobela, the accused person unlawfully caused the death of Bhekani Moyo (the now deceased) by shooting him once on the chest intending to kill him or realising that there was a real risk or possibility that his conduct may cause the death, continued to engage in that conduct despite the risk or possibility. The now deceased succumbed to injuries of the gunshot wound shortly afterwards. Facts. It is the state’s contention that on the 15th of March 2020 at around 0500 hours the accused whilst armed with an FN Riffle Serial Number 3000 loaded with a magazine of ten rounds teamed up with Tapfirenyika Musekiwa and Pious Musindo and headed to the now deceased’s homestead. Upon arrival at the now deceased’s homestead the accused and his colleagues introduced themselves as police officers to Ngqabutho Moyo and Moffat Moyo and advised them that they were looking for the now deceased who was wanted for robbery and assault by ZRP Silobela. Ngqabutho Moyo and Moffat Moyo stated that they were unaware of the now deceased’s whereabouts which prompted the accused and Pious Musindo to carry out # Facts. It is the state’s contention that on the 15th of March 2020 at around 0500 hours the accused whilst armed with an FN Riffle Serial Number 3000 loaded with a magazine of ten rounds teamed up with Tapfirenyika Musekiwa and Pious Musindo and headed to the now deceased’s homestead. Upon arrival at the now deceased’s homestead the accused and his colleagues introduced themselves as police officers to Ngqabutho Moyo and Moffat Moyo and advised them that they were looking for the now deceased who was wanted for robbery and assault by ZRP Silobela. Ngqabutho Moyo and Moffat Moyo stated that they were unaware of the now deceased’s whereabouts which prompted the accused and Pious Musindo to carry out a physical check in the homestead, and they found the now deceased in his bedroom. The accused ordered the now deceased to come out whilst he was standing outside at the back window of the now deceased’s bedroom. The accused proceeded to hit the door open with the butt of a riffle, went inside the room but did not find the now deceased. The accused indicated that he was going to throw some tear gas. At that moment the now deceased who was hiding under the bed, came out. Pious Musindo then grabbed and dragged the now deceased to the outside and stood him against the wall. Accused proceeded to where the now deceased was standing with Pious Musindo. Pious Musindo then moved away from where the now deceased was standing against the wall. The accused then fired at the now deceased on the chest with an AFN riffle and the now deceased fell to the ground and died on the spot. Defence outline. The accused in his defence pleaded not guilty to the charge of murder. He pleaded self-defence, in that, on the day in question, he had received information of the whereabouts of the now deceased. The accused was on duty on the night the incident happened. He averred that he got information that the now deceased, who was wanted on suspicions of committing assault and robbery, was at his homestead. He armed himself with an FN Rifle SN 3000 with 10 rounds of ammunition, and teamed up with one Pious Musindo and Tafirenyika Musekiwa, and proceeded to the now deceased’s homestead. The accused alleges that upon arrival, they introduced themselves as police officers, and initially looked for the accused by inquiring from the now deceased’s relatives but could not locate him. The accused alleges that they then discovered the now deceased hiding in his bedroom wherein accused ordered the now deceased to come out. It is the accused’s allegation that the now deceased came out wielding a knife, fought with Pious Musindo, whom he overpowered, then came charging towards accused, again, wielding the knife, intending to harm him. The accused says he was left with no choice but to defend himself by shooting the accused on the chest with the rifle. The accused claims he acted in self-defence, and in the course of his duties. # Defence outline. The accused in his defence pleaded not guilty to the charge of murder. He pleaded self-defence, in that, on the day in question, he had received information of the whereabouts of the now deceased. The accused was on duty on the night the incident happened. He averred that he got information that the now deceased, who was wanted on suspicions of committing assault and robbery, was at his homestead. He armed himself with an FN Rifle SN 3000 with 10 rounds of ammunition, and teamed up with one Pious Musindo and Tafirenyika Musekiwa, and proceeded to the now deceased’s homestead. The accused alleges that upon arrival, they introduced themselves as police officers, and initially looked for the accused by inquiring from the now deceased’s relatives but could not locate him. The accused alleges that they then discovered the now deceased hiding in his bedroom wherein accused ordered the now deceased to come out. It is the accused’s allegation that the now deceased came out wielding a knife, fought with Pious Musindo, whom he overpowered, then came charging towards accused, again, wielding the knife, intending to harm him. The accused says he was left with no choice but to defend himself by shooting the accused on the chest with the rifle. The accused claims he acted in self-defence, and in the course of his duties. State case The first state witness, Sipho Munkungu, was the now deceased’s mother. She testified that on the day in question and around 4.00 am, police officers arrived at their homestead looking for the now deceased. It was her evidence that the police officers were violently going door by door, breaking open the doors using the butt of the firearm. She testified that they ultimately got to a room where the now deceased was in, and that one Pious Musindo apprehended the now deceased and that when the accused pitched up, Pious Musindo moved 2 metres away from where the now deceased was standing. She went on to state that at that time, the accused then discharged his firearm and shot the now deceased right into the chest, the extreme left hand into his chest cavity. She also mentioned that the now deceased soon after fell down and died. The accused immediately afterwards approached the body of the now deceased, shook him three times. At that time, according to the witness, Pious Musindo then mentioned to the accused that he had killed a person. The police officers then left and went away with the firearm. The second state witness, Moffat Moyo, is the father of the now deceased. His evidence corroborated that of the first state witness, serve to mention that he got to the scene at the time Pious Musindo was 2 metres away from the now deceased. He said he did not know how the now deceased got to be 2 kilometers away from Pious Musindo.The State also called Caroline Mpunzi who was the Investigating Officer in the matter, to give evidence. She brought to the attention of this court that she was allocated the matter on the 21st of October 2020, six months after the death had occurred. This court also noted that the knife exhibit, which was allegedly in possession of the now deceased, was handed over to the Investigating Officer by Pious Musindo, which was said not to be the correct procedure. The exhibit knife must have been handed over to the Police Station soon after the alleged offence was committed, says the Investigating Officer.The state closed its case. # State case The first state witness, Sipho Munkungu, was the now deceased’s mother. She testified that on the day in question and around 4.00 am, police officers arrived at their homestead looking for the now deceased. It was her evidence that the police officers were violently going door by door, breaking open the doors using the butt of the firearm. She testified that they ultimately got to a room where the now deceased was in, and that one Pious Musindo apprehended the now deceased and that when the accused pitched up, Pious Musindo moved 2 metres away from where the now deceased was standing. She went on to state that at that time, the accused then discharged his firearm and shot the now deceased right into the chest, the extreme left hand into his chest cavity. She also mentioned that the now deceased soon after fell down and died. The accused immediately afterwards approached the body of the now deceased, shook him three times. At that time, according to the witness, Pious Musindo then mentioned to the accused that he had killed a person. The police officers then left and went away with the firearm. The second state witness, Moffat Moyo, is the father of the now deceased. His evidence corroborated that of the first state witness, serve to mention that he got to the scene at the time Pious Musindo was 2 metres away from the now deceased. He said he did not know how the now deceased got to be 2 kilometers away from Pious Musindo. The State also called Caroline Mpunzi who was the Investigating Officer in the matter, to give evidence. She brought to the attention of this court that she was allocated the matter on the 21st of October 2020, six months after the death had occurred. This court also noted that the knife exhibit, which was allegedly in possession of the now deceased, was handed over to the Investigating Officer by Pious Musindo, which was said not to be the correct procedure. The exhibit knife must have been handed over to the Police Station soon after the alleged offence was committed, says the Investigating Officer. The state closed its case. Defence case opened. The Accused [Playmore Manyange] To buttress his case, the accused took to the witness stand. He adopted his defence outline as his defence. In his defence accused confirmed that he was allocated the matter after receiving information of the now deceased’s whereabouts, wherein the now deceased was wanted on suspicion of having committed robbery and assault. It was stated in his defence that the now deceased had allegedly assaulted an individual with a knobkerrie, and in another incident had stabbed a person. He testified that on the day they went intending to apprehend the now deceased, it was him, Pious Musindo who is a member of the police constabulary, and Tafirenyika Musekiwe, a Police Officer. He testified that when he approached a room which he suspected the accused was hiding, he heard movements inside the hut, he ran around it and peeped through the window, using a torch. He stated that he saw the now deceased hiding under the bed and ordered him to open the door and sit down. It is then that the now deceased opened the door and, instead, came out carrying a knife. A brawl with Pious Musindo who was guarding the door ensued, so says the accused. The accused stated that he then went to cover for his compatriot, and when he turned around the corner, he met the now deceased who was coming towards his direction wielding a knife in his right hand. The accused confirmed that he then shot the now deceased once on the chest, and he died instantly. He claimed that he acted in self-defence as the now deceased was less than 2 metres from him intending to stab him with a knife. Accused confirmed that he shot the now deceased without firing a warning shot, as there was no time to do so. # Defence case opened. The Accused [Playmore Manyange] To buttress his case, the accused took to the witness stand. He adopted his defence outline as his defence. In his defence accused confirmed that he was allocated the matter after receiving information of the now deceased’s whereabouts, wherein the now deceased was wanted on suspicion of having committed robbery and assault. It was stated in his defence that the now deceased had allegedly assaulted an individual with a knobkerrie, and in another incident had stabbed a person. He testified that on the day they went intending to apprehend the now deceased, it was him, Pious Musindo who is a member of the police constabulary, and Tafirenyika Musekiwe, a Police Officer. He testified that when he approached a room which he suspected the accused was hiding, he heard movements inside the hut, he ran around it and peeped through the window, using a torch. He stated that he saw the now deceased hiding under the bed and ordered him to open the door and sit down. It is then that the now deceased opened the door and, instead, came out carrying a knife. A brawl with Pious Musindo who was guarding the door ensued, so says the accused. The accused stated that he then went to cover for his compatriot, and when he turned around the corner, he met the now deceased who was coming towards his direction wielding a knife in his right hand. The accused confirmed that he then shot the now deceased once on the chest, and he died instantly. He claimed that he acted in self-defence as the now deceased was less than 2 metres from him intending to stab him with a knife. Accused confirmed that he shot the now deceased without firing a warning shot, as there was no time to do so. Pious Musindo Pious Musindo, also, testified before the court in support of the defence case. He stated that on the day he had a fight with the now deceased when he came out of his hiding. He said that the now deceased was carrying a knife in his right hand. He went on to say that he held the now deceased’s right hand during the brawl but was overpowered by the now deceased, and let go of his right hand. He thought the now deceased was about to stab him on the head, but it turned out he was not harmed by the now deceased. It was this witness’ testimony that after the deceased was shot dead, he took away the knife which the accused was allegedly wielding, and he went away with it. It was his evidence that he handed down the knife to one Douglas Maphorisa. This witness also testified that he handed over the knife to the Investigating Officer some 6 months later, with the knife having stayed in their police station.The Defence closed its case. # Pious Musindo Pious Musindo, also, testified before the court in support of the defence case. He stated that on the day he had a fight with the now deceased when he came out of his hiding. He said that the now deceased was carrying a knife in his right hand. He went on to say that he held the now deceased’s right hand during the brawl but was overpowered by the now deceased, and let go of his right hand. He thought the now deceased was about to stab him on the head, but it turned out he was not harmed by the now deceased. It was this witness’ testimony that after the deceased was shot dead, he took away the knife which the accused was allegedly wielding, and he went away with it. It was his evidence that he handed down the knife to one Douglas Maphorisa. This witness also testified that he handed over the knife to the Investigating Officer some 6 months later, with the knife having stayed in their police station. The Defence closed its case. State closing submissions. The state addressed the court in closing and submitted that this was a matter in which most facts are not in dispute, serve for a few issues as to the number of police who arrived at the scene, which state alleged the difference may have been because it was dark. Most facts were common cause. The only issue for the state was whether there was an unlawful attack on the accused person by the now deceased. The state submitted that the accused was under no unlawful attack, his claim of self-defence as such must not succeed. The State submitted no attack was made on either the accused or his compatriot Puious Musindo. It was submitted that even if this Court was to buy the defence story that the now deceased was wielding a knife, the means used to avert the attack, the state submitted, was unnecessary, given that the accused used a rifle against a homemade kitchen knife. The other issue was the issue of the knife itself. The State witnesses averred that the now deceased person did not carry any knife on that particular day, whereas the accused and his witness Puious Musindo alleged the now deceased was wielding a knife. The submission was that the issue of a knife was an afterthought, which was to sustain the accused’s claim of self defence. The state supported its submissions with the case of State v Nyasha Tavagadzamugari HCMA 40/23, where it was decided by Justice Mawadze that the defence of a person as provided for in Section 253 of the court can only be available to an accused who would have been under an unlawful attack and all other requirements are satisfied. In this Tavagadzamugari case (supra) it was decided that accused person was not under any form of unlawful attack at all. The said findings guided the State, in casu, to conclude that from the evidence adduced by both parties the accused person was not under any form of attack when he shot the now deceased. In conclusion, the State prayed that the accused person be found guilty of murder. # State closing submissions. The state addressed the court in closing and submitted that this was a matter in which most facts are not in dispute, serve for a few issues as to the number of police who arrived at the scene, which state alleged the difference may have been because it was dark. Most facts were common cause. The only issue for the state was whether there was an unlawful attack on the accused person by the now deceased. The state submitted that the accused was under no unlawful attack, his claim of self-defence as such must not succeed. The State submitted no attack was made on either the accused or his compatriot Puious Musindo. It was submitted that even if this Court was to buy the defence story that the now deceased was wielding a knife, the means used to avert the attack, the state submitted, was unnecessary, given that the accused used a rifle against a homemade kitchen knife. The other issue was the issue of the knife itself. The State witnesses averred that the now deceased person did not carry any knife on that particular day, whereas the accused and his witness Puious Musindo alleged the now deceased was wielding a knife. The submission was that the issue of a knife was an afterthought, which was to sustain the accused’s claim of self defence. The state supported its submissions with the case of State v Nyasha Tavagadzamugari HCMA 40/23, where it was decided by Justice Mawadze that the defence of a person as provided for in Section 253 of the court can only be available to an accused who would have been under an unlawful attack and all other requirements are satisfied. In this Tavagadzamugari case (supra) it was decided that accused person was not under any form of unlawful attack at all. The said findings guided the State, in casu, to conclude that from the evidence adduced by both parties the accused person was not under any form of attack when he shot the now deceased. In conclusion, the State prayed that the accused person be found guilty of murder. Defence closing submissions. In closing address, the Defence maintainted that the accused was not guilty to the charge of murder as defined by section 47 of the Code as per his plea. They were satisfied that the defence of self-defence exonerated the accused. The defence counsel went on to submit that the accused was under unlawful attack from the now deceased, who was allegedly wielding a knife after the accused had been ordered to come out of his room. Initially, the now deceased is said to have had a tussle with Pious Musindo, but however overpowered him. The defence further submitted that the attack on the accused was imminent, as the now deceased was alleged to have been charging towards the accused, carrying a knife. The defence maintained that the now deceased was less than 2 meters away from the accused person. The defence heavily contended that, with the now deceased known to be a violent person and having previously stabbed a police officer, and with the accused unable to run away since he was unknown to the surroundings and it was also dark, it was necessary for the accused to shoot and kill the now deceased. They submitted that the actions of the now deceased fully met the requirements of self-defence in terms of section 253 of the Code. In the end, they prayed the defence succeeds, and the accused be found not guilty of murder and acquitted. # Defence closing submissions. In closing address, the Defence maintainted that the accused was not guilty to the charge of murder as defined by section 47 of the Code as per his plea. They were satisfied that the defence of self-defence exonerated the accused. The defence counsel went on to submit that the accused was under unlawful attack from the now deceased, who was allegedly wielding a knife after the accused had been ordered to come out of his room. Initially, the now deceased is said to have had a tussle with Pious Musindo, but however overpowered him. The defence further submitted that the attack on the accused was imminent, as the now deceased was alleged to have been charging towards the accused, carrying a knife. The defence maintained that the now deceased was less than 2 meters away from the accused person. The defence heavily contended that, with the now deceased known to be a violent person and having previously stabbed a police officer, and with the accused unable to run away since he was unknown to the surroundings and it was also dark, it was necessary for the accused to shoot and kill the now deceased. They submitted that the actions of the now deceased fully met the requirements of self-defence in terms of section 253 of the Code. In the end, they prayed the defence succeeds, and the accused be found not guilty of murder and acquitted. Analysis of the facts and application of the law. The accused raised the defence of self-defence. For one to successfully claim self- defence, they must meet the requirements for defence as set out in section 253 of the Code. The section provides that: “(1) 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 when he or she did or omitted to do the thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; andhe or she believed on reasonable grounds that 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; andthe means he or she used to avert the unlawful attack were reasonable in all the circumstances; andany harm or injury caused by his or her conduct was caused to the attacker and not to any innocent third party; andwas not grossly disproportionate to that liable to be caused by the unlawful attack.”1 In casu, it was the defence testimony that the now deceased was found in his room and ordered to open the door and lie down. However, the defence allege that the accused in fact opened the door and started wrestling Pious Musindo, who was guarding the door. It was Pious Musindo’s evidence that he let go of the now deceased, who went on charging towards the accused. This court doubts that one would let go of a hand carrying a knife intending to harm someone in such circumstances. It defies logic, as the norm would be that in such circumstances, the witness would have been stabbed if he was indeed overpowered by the now deceased. The witness testified that the now deceased charged towards the accused person, who was carrying a riffle. This assertion also defies logic. Why would one charge towards a person carrying a riffle when they are armed with a knife? Such assertions leave a lot to be desired. In the unreported case of S v Mitch Tafirenyika HCBCR 4009/24 (hereafter referred to as S v Mitch Tafirenyika) the court commented that: “Whatever, what is clear is that the attack if ever it was there or there was one which had not commenced because the accused’s defence is that he reasonably thought it was imminent because the now deceased had raised a machete and was advancing towards him. His assertion that’s the accused’s assertion does not ring truth”.2 1 Section 253(1) of the Criminal Law (Codification and Reform) Act. 2 S v Mitch Tafirenyika HCBCR4009/24 page 8. The abovementioned case is similar to the present matter. In the Tafirenyika case (supra), the accused was a Police Officer who had shot and killed the now deceased, who was allegedly raising his machete, and claimed self-defence for killing the now deceased. The court in that matter rejected the claim of self-defence as it was of the view that accused was not in imminent danger. This court is of a similar view that the accused cannot claim self-defence under such circumstances. The defence witness also brought to the attention of the court that after the now deceased had been shot, he took the knife which was allegedly being wielded by the now deceased during the altercations. He testified that he surrendered the knife to the police station, yet the same defence witness ultimately physically took the said knife to Kwekwe Investigating Officer instead of the Investigating Officer to have signed for such exhibit from Police Station Exhibit Book as proof that the knife was always an exhibit. The investigating officer stated tgat tge handing over of the knife by Pious Musindo was unprocedural.As stated above, this court does not believe that the accused was under imminent unlawful attack from the now deceased. This means the first requirement for self-defence is not satisfied, and accused cannot rely on defence for his actions.From the onset when the accused and those who were with him received the information that the now deceased was at his homestead there was no justification for them to have carried an FN Riffle. Police have other nonlethal means to effect arrest other than using an FN rifle. Usage of rubber bullets or button sticks would have been more appropriate in this case but were never used. The accused, who is a trained member and regular member of the Zimbabwe Republic Police, is trained to make use of a fire arm, and as such should have known when to use it. This court is not satisfied that the use of a firearm in these circumstances was justifiable. In the abovementioned case of S v Mitch Tafirenyika, the court held that: “was the attack used necessary to avert the purported attack? To us there was a lot more that the accused could have done. He wanted us to believe that the now deceased was a stupid person to think that armed with a mere machete he could charge towards an adversary holding a gun ready to fire and overpower him. If the now deceased was that daft still the accused as a police officer was expected to rise above the alleged stupidity. He must have fired warning shots to alert the now deceased that he was prepared to discharge fire and to shoot at him if he did not relent”.3 3 S v Mitch Tafirenyika page 8. This court asked the accused why he did not fire warning shots to alert the now deceased at the time the accused saw him holding or picking up a knife, the accused however mentioned that he did not have time to do so. This court is of the view that accused should have warned the now deceased the moment he saw him pick up a knife, and therefore had enough time to give warning to the now deceased that he can make use of a firearm if necessary. The accused aimed at the now deceased’s chest.Whether or not it is accepted that the now deceased was holding a knife, the means used to avert the purported attack was totally unreasonable. A reading of section 253(1)(b) of the Code requires one to use reasonable means to avert imminent danger. In this particular case the accused acted unreasonable, and he therefore cannot rely on defence for his actions.In S v Mitch Tafirenyika, the court held at page 8 that: “Aiming a gun shot at a human being is no warning shot at all. It is shooting to kill that person as was decided in State versus Marata HCC 76/24 where it was held that a fire arm is a lethal weapon hence the need to fire warning shots in the air. Firing warning shots in the air is to give the person so resisting or the person who is threatening or unlawfully threatening accused to stop whatever action”.4 In casu, this accused never fired any warning shot. In State v Marata HCC 76/24 at page 4, the Judge went on to say “once the fire-arm is pointed at people the results are fatal. The ones reasonable feasibility that by shooting at people death would occur”. The same applies with the accused in this case. When he shot on the chest of the now deceased, he must have foreseen that his actions will result in the death of a human being. The FN rifle fires on three different levels it fires on single, rapid and automatic shots. The way he discharged that firearm clearly shows that he had moved the safety catch to a single firing mode. By firing the shot directed at the now deceased’s mid region, he thus intended to kill the now deceased.Murder is defined by section 47(1) of the Code to mean; “(1) Any person who causes the death of another person intending to kill the other person; orrealising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The accused shot the accused on the chest with the intention to kill him, or realising that there was a real risk or possibility that death may occur, continued to shoot the now 4 S v Mitch Tafirenyika page 8. deceased. This satisfies the mens rea requirement, which is one of the elements where one is charged with murder. Although it turned out that Pious Musindo is not an attested regular member of ZRP, this court was of the view that the accused, as a Police Officer and in charge of the operation, was the person to take the knife immediately when he shot the now deceased and realized that he was dead, as it was a vital piece of evidence for investigations. It is a clear indication that the existence of a knife must have been a cooked-up story so that the defence of self-defence could be sustained. The accused shot at the now deceased from close range, directing his shot at the now deceased’s chest. What else is expected when one is discharging a firearm, an FN Rifle into a human being? Death is obvious. Where one foresees death and is not worried and he goes on to engage that which causes death, that person is viewed as having the necessary intention to cause the death of a person. As decided in S v Mapfotche SC 84/21 by the Makarau JA, when the learned Judge of Appeal commented on section 47(1)(a) and (b) on intent or realisation of a real risk or possibility, wherein she commented, at page 10, that ‘killing or causing the death of another person with either of the two intentions is murder as defined by the section.’It is the ultimate decision of this court from the totality of the evidence led that the state has managed to prove its case of murder beyond reasonable doubt. # Analysis of the facts and application of the law. The accused raised the defence of self-defence. For one to successfully claim self- defence, they must meet the requirements for defence as set out in section 253 of the Code. The section provides that: “(1) 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 when he or she did or omitted to do the thing, he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent; and he or she believed on reasonable grounds that 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 the means he or she used to avert the unlawful attack were reasonable in all the circumstances; and any harm or injury caused by his or her conduct was caused to the attacker and not to any innocent third party; and was not grossly disproportionate to that liable to be caused by the unlawful attack.”1 In casu, it was the defence testimony that the now deceased was found in his room and ordered to open the door and lie down. However, the defence allege that the accused in fact opened the door and started wrestling Pious Musindo, who was guarding the door. It was Pious Musindo’s evidence that he let go of the now deceased, who went on charging towards the accused. This court doubts that one would let go of a hand carrying a knife intending to harm someone in such circumstances. It defies logic, as the norm would be that in such circumstances, the witness would have been stabbed if he was indeed overpowered by the now deceased. The witness testified that the now deceased charged towards the accused person, who was carrying a riffle. This assertion also defies logic. Why would one charge towards a person carrying a riffle when they are armed with a knife? Such assertions leave a lot to be desired. In the unreported case of S v Mitch Tafirenyika HCBCR 4009/24 (hereafter referred to as S v Mitch Tafirenyika) the court commented that: “Whatever, what is clear is that the attack if ever it was there or there was one which had not commenced because the accused’s defence is that he reasonably thought it was imminent because the now deceased had raised a machete and was advancing towards him. His assertion that’s the accused’s assertion does not ring truth”.2 1 Section 253(1) of the Criminal Law (Codification and Reform) Act. 2 S v Mitch Tafirenyika HCBCR4009/24 page 8. The abovementioned case is similar to the present matter. In the Tafirenyika case (supra), the accused was a Police Officer who had shot and killed the now deceased, who was allegedly raising his machete, and claimed self-defence for killing the now deceased. The court in that matter rejected the claim of self-defence as it was of the view that accused was not in imminent danger. This court is of a similar view that the accused cannot claim self-defence under such circumstances. The defence witness also brought to the attention of the court that after the now deceased had been shot, he took the knife which was allegedly being wielded by the now deceased during the altercations. He testified that he surrendered the knife to the police station, yet the same defence witness ultimately physically took the said knife to Kwekwe Investigating Officer instead of the Investigating Officer to have signed for such exhibit from Police Station Exhibit Book as proof that the knife was always an exhibit. The investigating officer stated tgat tge handing over of the knife by Pious Musindo was unprocedural. As stated above, this court does not believe that the accused was under imminent unlawful attack from the now deceased. This means the first requirement for self-defence is not satisfied, and accused cannot rely on defence for his actions. From the onset when the accused and those who were with him received the information that the now deceased was at his homestead there was no justification for them to have carried an FN Riffle. Police have other nonlethal means to effect arrest other than using an FN rifle. Usage of rubber bullets or button sticks would have been more appropriate in this case but were never used. The accused, who is a trained member and regular member of the Zimbabwe Republic Police, is trained to make use of a fire arm, and as such should have known when to use it. This court is not satisfied that the use of a firearm in these circumstances was justifiable. In the abovementioned case of S v Mitch Tafirenyika, the court held that: “was the attack used necessary to avert the purported attack? To us there was a lot more that the accused could have done. He wanted us to believe that the now deceased was a stupid person to think that armed with a mere machete he could charge towards an adversary holding a gun ready to fire and overpower him. If the now deceased was that daft still the accused as a police officer was expected to rise above the alleged stupidity. He must have fired warning shots to alert the now deceased that he was prepared to discharge fire and to shoot at him if he did not relent”.3 3 S v Mitch Tafirenyika page 8. This court asked the accused why he did not fire warning shots to alert the now deceased at the time the accused saw him holding or picking up a knife, the accused however mentioned that he did not have time to do so. This court is of the view that accused should have warned the now deceased the moment he saw him pick up a knife, and therefore had enough time to give warning to the now deceased that he can make use of a firearm if necessary. The accused aimed at the now deceased’s chest. Whether or not it is accepted that the now deceased was holding a knife, the means used to avert the purported attack was totally unreasonable. A reading of section 253(1)(b) of the Code requires one to use reasonable means to avert imminent danger. In this particular case the accused acted unreasonable, and he therefore cannot rely on defence for his actions. In S v Mitch Tafirenyika, the court held at page 8 that: “Aiming a gun shot at a human being is no warning shot at all. It is shooting to kill that person as was decided in State versus Marata HCC 76/24 where it was held that a fire arm is a lethal weapon hence the need to fire warning shots in the air. Firing warning shots in the air is to give the person so resisting or the person who is threatening or unlawfully threatening accused to stop whatever action”.4 In casu, this accused never fired any warning shot. In State v Marata HCC 76/24 at page 4, the Judge went on to say “once the fire-arm is pointed at people the results are fatal. The ones reasonable feasibility that by shooting at people death would occur”. The same applies with the accused in this case. When he shot on the chest of the now deceased, he must have foreseen that his actions will result in the death of a human being. The FN rifle fires on three different levels it fires on single, rapid and automatic shots. The way he discharged that firearm clearly shows that he had moved the safety catch to a single firing mode. By firing the shot directed at the now deceased’s mid region, he thus intended to kill the now deceased. Murder is defined by section 47(1) of the Code to mean; “(1) Any person who causes the death of another person intending to kill the other person; or realising that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.” The accused shot the accused on the chest with the intention to kill him, or realising that there was a real risk or possibility that death may occur, continued to shoot the now 4 S v Mitch Tafirenyika page 8. deceased. This satisfies the mens rea requirement, which is one of the elements where one is charged with murder. Although it turned out that Pious Musindo is not an attested regular member of ZRP, this court was of the view that the accused, as a Police Officer and in charge of the operation, was the person to take the knife immediately when he shot the now deceased and realized that he was dead, as it was a vital piece of evidence for investigations. It is a clear indication that the existence of a knife must have been a cooked-up story so that the defence of self-defence could be sustained. The accused shot at the now deceased from close range, directing his shot at the now deceased’s chest. What else is expected when one is discharging a firearm, an FN Rifle into a human being? Death is obvious. Where one foresees death and is not worried and he goes on to engage that which causes death, that person is viewed as having the necessary intention to cause the death of a person. As decided in S v Mapfotche SC 84/21 by the Makarau JA, when the learned Judge of Appeal commented on section 47(1)(a) and (b) on intent or realisation of a real risk or possibility, wherein she commented, at page 10, that ‘killing or causing the death of another person with either of the two intentions is murder as defined by the section.’ It is the ultimate decision of this court from the totality of the evidence led that the state has managed to prove its case of murder beyond reasonable doubt. Dispostion. The accused is accordingly found guilty of murder in aggravating circumstances. # Dispostion. The accused is accordingly found guilty of murder in aggravating circumstances. SENTENCING JUDGMENT. Introduction. In arriving at an appropriate sentence this court will consider what was said in mitigation and aggravation and the victim impact statement from the now deceased’s mother. # SENTENCING JUDGMENT. Introduction. In arriving at an appropriate sentence this court will consider what was said in mitigation and aggravation and the victim impact statement from the now deceased’s mother. Background. The offender Playmore Manyange is a male adult who was aged 32 at the time he committed the offence. He resided at V113, Amaveni, Kwekwe and was a serving member of the Zimbabwe Republic Police. On the 15th of March 2020 he shot and killed the now deceased Bhekani Moyo once on the chest with an FN Rifle, who died immediately from the gunshot wounds. The offender pleaded not guilty to the charge of murder, and after a contested trial, this court convicted him of murder. # Background. The offender Playmore Manyange is a male adult who was aged 32 at the time he committed the offence. He resided at V113, Amaveni, Kwekwe and was a serving member of the Zimbabwe Republic Police. On the 15th of March 2020 he shot and killed the now deceased Bhekani Moyo once on the chest with an FN Rifle, who died immediately from the gunshot wounds. The offender pleaded not guilty to the charge of murder, and after a contested trial, this court convicted him of murder. Mitigation In mitigation, it was brought to the attention of the court that the offender caused the death of the now deceased when he was on official duty. He is a first-time offender, he served in the Police Force for ten years and during this ten-year period of service he was blameless. The accused is the breadwinner of his parents and siblings, he recently got married and has two minor children. It was brought to the attention of this court that the offender never avoided prosecution as this is a 2020 murder case. This court was not advised, however, of why it took six months for this matter to be investigated. This court also noted that it took long for the matter to be brought to finality. Be that as it may, the pre-trial period where the offender was in suspense of the outcome of this matter is a torturous period. From 2020 to date, he was not aware of the fate of this matter and that on its own is very torturous and accepted as mitigatory. It was indicated by the defence that on the day in question the offender was effecting an arrest of the person who had allegedly committed robbery and assault. There was no pre-meditation in this matter and that is mitigatory. # Mitigation In mitigation, it was brought to the attention of the court that the offender caused the death of the now deceased when he was on official duty. He is a first-time offender, he served in the Police Force for ten years and during this ten-year period of service he was blameless. The accused is the breadwinner of his parents and siblings, he recently got married and has two minor children. It was brought to the attention of this court that the offender never avoided prosecution as this is a 2020 murder case. This court was not advised, however, of why it took six months for this matter to be investigated. This court also noted that it took long for the matter to be brought to finality. Be that as it may, the pre-trial period where the offender was in suspense of the outcome of this matter is a torturous period. From 2020 to date, he was not aware of the fate of this matter and that on its own is very torturous and accepted as mitigatory. It was indicated by the defence that on the day in question the offender was effecting an arrest of the person who had allegedly committed robbery and assault. There was no pre-meditation in this matter and that is mitigatory. Aggravation. However, what is aggravatory in this matter is that the offender was a Police Officer. The reason why the offender was given a firearm by his Senior was because he was, as indicated by Pious Musindo, the member in charge of the operation on the day in question. The constitutional mandate of a Police Officer is clear, which is to maintain law and order. The offender was supposed to arrest suspects and bring them to court for prosecution. As much as this court appreciates that the crime was committed during the course and scope of duty as a Police Officer, Police Officers are not above the law. As a Police officer, the offender should have exercised care and diligence in carrying out his duties, which is not the case in this matter.The offender was in charge at that scene. He did not fire any warning shot which is a point in aggravation as highlighted by the State. The offender fired a firearm from a distance less than two meters. It was lethal. A clear message must equally be sent to Police Officers who would be trigger-happy that they must religiously follow the golden rule of the usage of firearms, that they must only resort to firing when firing is inevitable and is obligated to shoot to injure, not to kill. They must shoot to injure so that they effect an arrest. In this case the offender directed his one shot to the upper part of the now deceased’s body, the chest, a vital organ of the body. Even if we take it that the now deceased was armed with a knife as the defence would want us to believe, which was refuted by this court guided by evidence, usage of a lethal weapon was not necessary. He was trigger happy and did not act reasonable in the circumstances. The offender could have hit the hand that was carrying the knife using the full length of the FN Rifle to disarm the now deceased. # Aggravation. However, what is aggravatory in this matter is that the offender was a Police Officer. The reason why the offender was given a firearm by his Senior was because he was, as indicated by Pious Musindo, the member in charge of the operation on the day in question. The constitutional mandate of a Police Officer is clear, which is to maintain law and order. The offender was supposed to arrest suspects and bring them to court for prosecution. As much as this court appreciates that the crime was committed during the course and scope of duty as a Police Officer, Police Officers are not above the law. As a Police officer, the offender should have exercised care and diligence in carrying out his duties, which is not the case in this matter. The offender was in charge at that scene. He did not fire any warning shot which is a point in aggravation as highlighted by the State. The offender fired a firearm from a distance less than two meters. It was lethal. A clear message must equally be sent to Police Officers who would be trigger-happy that they must religiously follow the golden rule of the usage of firearms, that they must only resort to firing when firing is inevitable and is obligated to shoot to injure, not to kill. They must shoot to injure so that they effect an arrest. In this case the offender directed his one shot to the upper part of the now deceased’s body, the chest, a vital organ of the body. Even if we take it that the now deceased was armed with a knife as the defence would want us to believe, which was refuted by this court guided by evidence, usage of a lethal weapon was not necessary. He was trigger happy and did not act reasonable in the circumstances. The offender could have hit the hand that was carrying the knife using the full length of the FN Rifle to disarm the now deceased. Victim Impact Staement [Sipho Munkungu] From the victim impact statement from the now deceased’s mother, Sipho Munkungu it was put before this court that she was immensely affected by this incident. This gruesome scene affected all family members who saw it happen, even the children. She detailed how she was going about with a child who is in grade 3 and when that child saw a Police Officer, she started crying. This was because she witnessed the incident with her own eyes the day the now deceased was murdered and since then she fears Police Officers. This has left an undeniable mark in the mind of that child. Members of the public must have confidence in how the Police investigates cases. # Victim Impact Staement [Sipho Munkungu] From the victim impact statement from the now deceased’s mother, Sipho Munkungu it was put before this court that she was immensely affected by this incident. This gruesome scene affected all family members who saw it happen, even the children. She detailed how she was going about with a child who is in grade 3 and when that child saw a Police Officer, she started crying. This was because she witnessed the incident with her own eyes the day the now deceased was murdered and since then she fears Police Officers. This has left an undeniable mark in the mind of that child. Members of the public must have confidence in how the Police investigates cases. Range of sentence. There is need to understand the Sentencing Guidelines in terms of Statutory Instrument 146 of 2023, where an offender is convicted of a crime where there are aggravating factors. In such instances the presumptive sentence is 20 years’ imprisonment. Where there are mitigating factors which outweigh the aggravating factors, the presumptive sentence is 15 years imprisonment.What was aggravating in this case was the fact that there was usage of a weapon firearm. Once that is proved this court has no option and is bound by the minimum sentence of twenty years and to a maximum of life imprisonment, as provided for in the Sentencing Guidelines. Life was lost and the offender never paid any compensation, he never showed any sign of remorse or contrition. He felt that he was very right over what he did, that his alleged self-defence was justified.This court has lamented that no one is above the law. The offender was aware in terms of the Police service charter that he must discharge his duties within the limits of the law. # Range of sentence. There is need to understand the Sentencing Guidelines in terms of Statutory Instrument 146 of 2023, where an offender is convicted of a crime where there are aggravating factors. In such instances the presumptive sentence is 20 years’ imprisonment. Where there are mitigating factors which outweigh the aggravating factors, the presumptive sentence is 15 years imprisonment. What was aggravating in this case was the fact that there was usage of a weapon firearm. Once that is proved this court has no option and is bound by the minimum sentence of twenty years and to a maximum of life imprisonment, as provided for in the Sentencing Guidelines. Life was lost and the offender never paid any compensation, he never showed any sign of remorse or contrition. He felt that he was very right over what he did, that his alleged self-defence was justified. This court has lamented that no one is above the law. The offender was aware in terms of the Police service charter that he must discharge his duties within the limits of the law. Disposition Considering the totality of what was adduced in mitigation and aggravation, the offender is sentenced to twenty (20) years imprisonment. National Prosecuting Authority, state’s legal practitioners. G ambe Law Group, accused’s legal practitioners. 1 # Disposition Considering the totality of what was adduced in mitigation and aggravation, the offender is sentenced to twenty (20) years imprisonment. National Prosecuting Authority, state’s legal practitioners. G ambe Law Group, accused’s legal practitioners. 1 1 1