YULONG v THE STATE (SC 03 of 2026) [2026] ZWSC 5 (6 January 2026)

Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 11 REPORTABLE (03) CAI YULONG v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 16 SEPTEMBER 2025 & 6 JANUARY 2026 C. Tachiona & L. Mawire, for the appellant T. C. Mujokoro, for the respondent MUSAKWA JA: 1. This is an appeal against conviction and sentence by the High Court of Zimbabwe (‘the court a quo’) convicting the appellant of three charges namely; murder, attempted murder and assault, as defined under ss 47(1), as read with s 189, and s 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (‘the Code’). BACKGROUND FACTS 2. The appellant was brought before the court a quo facing three charges as outlined above. It was alleged that on 24 May 2024, at Stone Steel Mine, also known as Blue Mine, Zhombe, the appellant unlawfully and with intent to kill or alternatively, realising that there was a real risk or possibility that his conduct might cause death and continuing nonetheless, shot Goni Goni in the thigh with a Norinco pistol, thereby causing his death. Using the same firearm, he was further alleged to have attempted to kill John Muchawaya Bera by shooting him once on the right knee and once on the left thigh. Additionally, the appellant was alleged to have unlawfully struck Lovemore Mapfanya once on the head with a clenched fist, intending to cause harm or realising that there was a real risk of causing harm and persisting in his conduct despite that risk. 3. The appellant pleaded not guilty to all the charges. In his defence, he did not dispute shooting the deceased in respect of the murder charge, nor the complainant in the attempted murder charge. He contended that his actions were taken in self-defence and in defence of his property. As to the assault charge, he contended that it was fabricated. 4. The appellant operates Stone Steel Mine, also known as Blue Mine, located in Zhombe, Kwekwe which shares a boundary with Blackhand 10 Mine owned by Cornelius Shariwa. The State’s evidence established that the deceased and the complainants in counts 2 and 3 were employees of Blackhand 10 Mine. On the day of the incident, they had gone underground to erect a barricade at the intersection of Stone Steel Mine and Blackhand 10 Mine. While engaged in this work, the appellant entered his mine via his shaft and proceeded to the intersection. A confrontation ensued, during which the appellant shot at the Blackhand 10 Mine workers, resulting in the death of the deceased and injuries to the complainant in count 2, John Muchawaya Bera. The appellant also allegedly struck another worker, Lovemore Mapfanya, on the head, giving rise to the assault charge in count 3. 5. In his defence outline, the appellant contended that prior to the incident, illegal gold panners had repeatedly breached the underground workings between his mine and Blackhand 10 Mine, stealing gold ore and mining equipment. He claimed that despite reporting these incidents to the police, the problem persisted as no intervention was made by the police. On the day of the incident, the appellant stated that his security guard, Takesure Ndlovu, informed him that intruders had entered the mine. These individuals were allegedly armed with axes, machetes, hammers, chisels and they were engaging in illegal mining activities. According to the appellant, Takesure had encountered the intruders underground but refused to accompany him, claiming that they had chased him and attempted to attack him. 6. According to the appellant, he entered the shaft alone, with a torch on his forehead and saw approximately eight individuals carrying sacks of gold ore from his mine through Blackhand 10 Mine’s exit. All of them were armed with weapons, which included machetes, axes, hammers and chisels. Upon seeing the appellant, they ran toward him, threatening and shouting in a language he did not understand. The appellant fired three warning shots into the roof of the mine to deter the attackers, but they continued charging at him. Fearing for his life and the safety of his property, he shot twice at the legs of the complainant, who was carrying a metal weapon. This complainant retreated after being shot. The deceased, armed with an axe, continued advancing toward the appellant with the intention to attack. The appellant then fired at the deceased's leg, causing him to fall to the ground. The intruders subsequently pulled away the wounded complainant and exited through Blackhand 10 Mine’s shaft. 7. The appellant further stated that he checked on the deceased, who was still alive and attempted to minimise bleeding by using a torn piece of a sack and his work suit to tie the injured leg. He called for assistance from his employees, who helped ferry the deceased out of the shaft. Unfortunately, the deceased passed away before medical help could be obtained. His body was lying on the ground awaiting the arrival of the police. The appellant said he instructed his employee, Roy Taguma, to report the incident to the police. Upon their arrival, the police detained and charged him. He claimed that he had no intention of killing anyone, as evidenced by the injuries inflicted on the people he shot. The appellant said he offered to show the police the weapons and sacks of gold ore left underground by the intruders, but the police declined his offer to go down the mine, even when he offered to provide protective clothing for access into the shaft. THE COURT A QUO’S FINDINGS 8. The court a quo found no evidence to substantiate the appellant’s claim that the deceased and his colleagues were illegal gold miners stealing from his mine. The State’s evidence consistently established that the deceased and the complainants were employees of Mr Cornelius Shariwa, the appellant’s neighbour. This evidence remained unchallenged during both the investigation and trial. Mr Shariwa testified that the deceased and his colleagues were his employees and produced an employee register containing their names, surnames and national identification numbers. Although the defence questioned the register’s authenticity, citing missing details such as employment dates and salaries and its non-registration with the Ministry of Mines, Mr Shariwa explained that there was no legal requirement for such registration and that the register served its intended purpose. The court a quo held that the defence failed to cite any law invalidating the register and concluded that, even without it, Mr Shariwa’s oral testimony sufficiently established the employment status of the deceased and complainants. 9. The court a quo further reasoned that it would be illogical for Mr Shariwa to claim illegal gold panners as his employees, as he would derive no benefit from such a false assertion. The appellant himself acknowledged knowing Mr Shariwa as a neighbour with whom he shared a mining boundary. No evidence was presented to suggest that Mr Shariwa did not have employees or was not conducting mining activities. It was also established that the deceased and his colleagues were working with Mr Shariwa’s son, Komborerai Shariwa, erecting a barricade underground at the intersection of the two mines. The court a quo found it implausible that the son of the mine owner would be engaged in illegal panning. 10. On this basis, the court a quo rejected the appellant’s defences of self-defence and defence of property, holding that the requirements of ss 253, 254, 257, and 258 of the Code in line with self defense and defense of property which entails that a person facing imminent attack should act reasonably in defending the property and self were not met. The court a quo noted that the appellant’s use of a firearm against fleeing individuals was unnecessary, as there was no imminent attack. Even if the deceased and colleagues had been intruders, the appellant could have removed himself or sought assistance rather than resorting to lethal force. 11. Regarding sentence, the court highlighted severe aggravating factors. The murder occurred in a mining shaft where five other individuals were present. The appellant fired indiscriminately in the tunnel and up the shaft, creating a substantial risk of killing or seriously injuring others. The appellant shot at the deceased and his colleagues as they were fleeing, demonstrating malice. The court a quo noted that the sanctity of human life must be upheld and that the appellant’s conduct constituted a cold-blooded killing. Victim impact statements confirmed the profound trauma caused by the deceased’s death. 13. The court a quo also considered mitigatory factors which included that the appellant was a first offender, aged 56, married in China with two adult children and had a minor child in Zimbabwe. He expressed remorse and provided US$3 000 in financial assistance to the deceased’s family. He also attempted to render first aid to the deceased underground. Balancing justice with mercy, the court imposed a sentence of 30 years’ imprisonment for murder, 10 years for attempted murder (with 5 years suspended on condition of no violent offence within five years, running concurrently with the murder sentence), and US$100 for assault or one month’s imprisonment in default of the fine. 14. Dissatisfied with the decision of the court a quo, the appellant noted an appeal to this Court against both conviction and sentence on the following grounds of appeal: “GROUNDS OF APPEAL As regards conviction The court a quo erred in both law and fact by finding that the appellant possessed the requisite intention to kill the deceased and to attempt the murder of John Muchawaya Bera, despite the absence of evidence establishing such intent necessary to sustain convictions for murder and attempted murder. The court a quo erred in both law and fact by convicting the appellant of murder and attempted murder when the evidence clearly established that he was acting in self-defence and in defence of his property. The court a quo erred in both law and fact by convicting the appellant in the absence of sufficient evidence proving that, on the day in question, the victims were constructing a barricade between the appellant’s mine and their employer’s mine and not that they were stealing gold ore. The court a quo erred in fact by accepting warned and cautioned statements that had been inaccurately translated from Chinese to English, thereby creating a misleading impression of the appellant’s attitude towards the alleged offences. As regards sentence The court a quo erred in law and fact by imposing a 30-year sentence without considering s 9 of the Sentencing Guidelines, 2023, and key mitigating factors-including the Appellant’s status as a first offender, advanced age, remorse, assistance with funeral costs, low risk of reoffending, positive contribution to the economy and his conduct subsequent to the shooting which was meant to avert a threat to life. The court a quo erred in law and fact by completely ignoring a mitigatory factor that the appellant’s belief during the time of commission of the offence that his property and life was under threat overwhelmed and clouded his judgment and could not have comprehended the consequence of his actions when he negligently opened fire. The court a quo erred at law by imposing a sentence that is grossly at a tangent with sentences imposed in other cases of similar facts and or circumstances.” The appellant sought relief in the following terms: “WHEREFORE tendering as aforesaid, the appellant prays for the following relief: The appeal against conviction of murder and attempted murder succeeds. 2. The appellant’s conviction and sentence are hereby quashed and the judgment of the court a quo is substituted with the following: ‘The accused be and is hereby found guilty of culpable homicide and assault respectively.’” IN THE FURTHER ALTERNATIVE, that: “1. The appeal against sentence succeeds. The sentence of 30 years and 10 years imprisonment in respect of murder and attempted murder respectively imposed upon the appellant is set aside and substituted with the following; ‘The accused is sentenced as follows: Count 1- 5 years imprisonment Count 2- 2 years imprisonment with one year suspended on condition of a fine not exceeding level 7.’” THE APPELLANT’S SUBMISSIONS ON APPEAL 15. At the hearing of the matter, Mr Tachiona, counsel for the appellant, submitted that the court a quo erred in convicting the appellant of murder in circumstances where he lacked the requisite intention to kill. He argued that the appellant acted in self-defence, seeking to protect both himself and his property from imminent harm. Counsel highlighted that before discharging the fatal shot, the appellant had fired three warning shots, to which the deceased did not respond. He further contended that the appellant did not aim at a vital organ such as the head, demonstrating that there was no intention to kill. In addition, reliance was placed on the medical affidavit, which confirmed that death resulted from excessive bleeding. Counsel pointed out that the appellant attempted to stop the bleeding by tying the wound with the deceased’s tracksuit and later transported him to the hospital. 16. On sentence, counsel submitted that the punishment imposed was excessive, particularly given mitigating factors such as the appellant’s contribution to the funeral expenses of the deceased and his role in the mining industry, which benefits the economy. He proposed that, should the conviction be upheld, the sentence ought to be reduced to 15 years’ imprisonment for murder, with a 2-year sentence for attempted murder wholly suspended on condition of payment of a fine not exceeding level seven. 17. The court queried the appellant’s defence on the attempted murder charge, noting that the victim had been shot from the back, which appeared inconsistent with the plea of self-defence. In reply, counsel maintained that the incident occurred in darkness, amidst a scuffle involving many people and that the shooting of the victim could have happened accidentally. He insisted that the appellant had no intention either to kill or to attempt to kill. THE RESPONDENT’S SUBMISSIONS ON APPEAL 18. On the other hand, Ms Mujokoro, counsel for the respondent, contended that the appellant’s guilt had been established beyond a reasonable doubt. She maintained that there was no lawful justification for shooting either the deceased or the victim of attempted murder. Counsel emphasised that both victims were shot from the back or the side, which indicated that they were fleeing from the appellant. Regarding sentence, she submitted that the court a quo committed no misdirection and that the sentence imposed was consistent with established case law. ISSUES FOR DETERMINATION 19. The following issues arise for determination: Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established. Whether or not the court a quo erred in making the factual finding that the complainants were constructing a barricade and not stealing gold ore. Whether or not the court a quo erred in finding that the defences of self-defence and defence of property were not applicable under the circumstances. Whether or not the court a quo failed to consider applicable sentencing guidelines and key mitigating factors APPLICATION OF THE LAW TO THE FACTS Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established. 20. The first ground of appeal concerns whether the court a quo erred in finding that the appellant possessed the requisite intention to commit murder and attempted murder. The appellant contended that, although a firearm had been employed, he deliberately aimed at the legs of both the deceased and the surviving complainant, John Muchawaya Bera which areas of the body he averred were not ordinarily regarded as vital or inherently fatal. He argued that this deliberate targeting demonstrated an intention to disable or deter rather than to kill. Furthermore, the appellant submitted that he had a clear opportunity to aim at more vulnerable parts of the body but consciously refrained from doing so, a factor which, in his view, negated any inference of intent to kill, thereby contradicting the earlier assertion that the shooting took place in the dark. 21. Counsel for the respondent, in turn, relied on the post-mortem report, which recorded an entry wound on the external side of the deceased’s left thigh and an exit wound on the internal side. It was argued on behalf of the respondent that this trajectory did not support the appellant’s claim that the deceased was advancing towards him, rendering his account of being confronted with an axe implausible. The respondent further submitted that, even if the appellant lacked a direct intent to kill, he must have been aware of the real risk or possibility that discharging a firearm at fleeing individuals could result in death. 22. Snyman, in his book, Strafreg 5th ed (2008) at p 447, identifies the elements of the crime of murder as: (a) causing the death, (b) of another human being, (c) unlawfully, and (d) intentionally. By contrast, the elements of culpable homicide are: (a) causing the death, (b) of another person, (c) unlawfully, and (d) negligently. These definitions find clear resonance in the wording of s 47 of the Code, which provides in material part that: “(1) Any person who causes the death of another person— (a) intending to kill the other person; or (b) 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.” 23. In S v Mugwanda 2002 (1) ZLR 574 (S) at 581 D-E, the court, with precision and clarity, explained actual and legal intention when it stated as follows: “On the basis of the above it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that: Either the accused desired to bring about the death of his victim and succeeded in completing his purpose, or While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless… on the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else) in the test for culpable homicide the test(s) he ought to, as a reasonable man have foreseen the death of the deceased.” (My emphasis) 24. Similarly, in S v Mini 1963 (3) SA 188 (A) at 191H, the court held that the foresight of a possibility, even if slight or remote in nature, constitutes the cognitive component of dolus eventualis. In the same vein, Holmes JA emphasised that subjective foresight of the possibility, however remote, that unlawful conduct may cause the death of another is sufficient to satisfy the element of foreseeability required for dolus eventualis (the current equivalent of realisation of real risk or possibility of harm). 25. In light of the above authorities and provisions, it is clear that intention is established not only where an accused possesses direct intention (dolus directus) to kill, but also where he foresees the real risk or possibility that death may result from his conduct and nevertheless reconciles himself to that outcome. The law does not require foresight of death as a certainty, nor even as a probability. It is enough that the appellant appreciated the real risk of death, however remote, and consciously proceeded in disregard of that risk. Further, in the case of R v Ndhlovu 1945 AD 369 at 386, it was opined that the State can discharge the onus of proving legal intent either by direct evidence or by the proof of facts from which a necessary inference may be drawn. One such fact from which such an inference may be drawn is the lack of an acceptable explanation by an accused person in his defence. 26. In the present case, the record shows that the appellant armed himself, confronted the alleged intruders and fired at fleeing individuals. The post-mortem report established that a shot to the leg caused fatal hypovolemic shock, demonstrating that even targeting non-vital areas carries a real risk of death. The trajectory and circumstances contradict the appellant’s claim that the deceased was charging at him, supporting the inference that he foresaw and reconciled himself with the risk of death, however remote. 27. In addition, considering the lethal nature of a firearm, the appellant’s decision to descend into the mine whilst armed and the implausibility of his assertion that he reasonably suspected intruders while being aware that workers from a neighbouring mine could be present, it is apparent that he subjectively reconciled himself with the possibility of causing death. The medical evidence confirms that he fired at individuals who were not advancing toward him but were facing away at close range. The fact that he aimed at the legs and thighs does not negate the foresight that death might result, as firing from such proximity with a firearm may be fatal. His conduct, entering the mine armed and prepared to inflict harm, justifies the inference that, at some point, he must have contemplated the possibility of death resulting from his actions. 28. Accordingly, we are of the view that the court a quo correctly concluded that the appellant subjectively foresaw the possibility of death and reconciled himself to it. Its findings of murder and attempted murder were therefore properly arrived at. Whether or not the court a quo erred in making the factual finding that the complainants were constructing a barricade and not stealing gold ore. 29. The appellant argued that the court a quo erred in concluding that the deceased and the complainants were constructing a barricade, asserting that there was no credible evidence to support such a finding. He relied on alleged shortcomings in the police investigation, noting that the investigating officer neither descended into the mineshaft to verify the events nor conducted an on-site inspection. According to the appellant, the lack of corroborative evidence left the competing versions, whether the victims were building a barricade or engaged in illegal mining unresolved and that the benefit of doubt should have been afforded to him. The respondent, however, maintained that fact-finding falls squarely within the domain of the trial court. 30. In the case of Kereke v Maramwidze & Anor SC 86/21 at p 11, the Court held as follows: “It is trite that an appellate court is slow to interfere with the factual findings of a lower tribunal. The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC 47/09 as follows: ‘There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.’” See also Zvokusekwa v Bikita Rural District Council SC 34/15. 31. In Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a Track & Anor SC 59/16 p 11 para 36, it was held that: “The position is now settled that an appellate court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the appeal court will not interfere. This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (s). At 670, Korsah JA remarked: ‘The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion…’ It is also an established principle that an appellate court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC 78/14 at p 7 where the Court remarked as follows: ‘As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility. However, as was observed in Santam BPK v Biddulph (2004) 2 All SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be overemphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.’” 32. In light of the above, this Court is of the view that whether the deceased and his colleagues were constructing a barricade or stealing gold ore is a matter of fact, falling squarely within the purview of the trial court. This Court must be slow to interfere with such findings, particularly where they rest on assessments of witness credibility. On a reading of the record, we find no basis to disturb the trial court’s conclusion. The State witnesses gave a consistent and corroborated account of the circumstances, including what they were doing and how the shooting unfolded. Their evidence was coherent and unshaken under cross-examination. The trial court, having had the advantage of observing their demeanour, accepted them as credible witnesses and their credibility not having been impugned, this Court ought not to interfere with the same. The third ground of appeal ought to fail on this account. 33. However, for the sake of completeness, even if the issue of the barricade is essentially factual, we take the view that the conclusion of the court a quo cannot be faulted on the evidence available. In its judgment, the trial court lamented the shortcomings of the police investigation, particularly the failure of the investigating officer to independently determine the precise scene of the crime underground, the exact point of the shooting or whether a barricade existed at that location. Nonetheless, despite these investigative deficiencies, we take the view that the court a quo cannot be faulted for concluding that the deceased, the complainant and their colleagues could not have been illegal gold panners as there was evidence that the same were employees of the next farm. 34. The judgment of the court a quo demonstrates that it relied upon the testimony of credible witnesses. The court was satisfied that the deceased and his colleagues were engaged in erecting a barricade between the two tunnels. This conclusion is borne out by the consistency of the State witnesses’ accounts, notwithstanding minor discrepancies regarding when the work commenced. The witnesses, like Lovemore Mapfanya, John Muchawaya Bera, Komborerai Shariwa, and Gonai Masundire, testified that they had gone underground to construct a barricade at Level One between their tunnel and the appellant’s tunnel. The existence of tunnel encroachment was not in dispute. The appellant himself admitted that there was no barricade underground and complained that unauthorised persons had breached the boundary and encroached more than ten metres into his mine from Mr Shariwa’s side. Mr Cornelius Shariwa corroborated the encroachment, testifying that he had observed smoke from explosives on the appellant’s side, after which he had agreed with the appellant’s blasters on the need for a barricade. He stated that he then instructed his employees to erect it, which is what they were doing on the day of the shooting. 35. Moreover, the court a quo found that the appellant himself admitted that he had not seen the deceased and his colleagues mining, but simply concluded that they were intruders, upon noticing sacks in the tunnel. He failed to explain the origin of the gold ore he alleged was being stolen. By contrast, the testimony of the deceased’s colleagues that the sacks contained waste material used for barricade construction was consistent and credible. This lent further support to the trial court’s finding that the deceased and his colleagues were lawfully engaged in barricade-related work and not in unlawful panning. Whether or not the court a quo erred in finding that the defence of self-defence and defence of property were not applicable under the circumstances. 36. The appellant contended that he acted in self-defence and in defence of his property. He submitted that, upon entering the mine, he encountered the deceased and others armed with axes, machetes and chisels. He stated that he believed that his life was in danger, hence he fired three warning shots. When they allegedly advanced towards him, he aimed at their legs to immobilise rather than kill. He relied on s 253 (1) of the Criminal Code, which permits the use of reasonable force to defend oneself against an unlawful attack and s 257, which allows force to protect property from unlawful interference. The appellant maintained that, having been informed by his security of intruders stealing gold ore and entering through a neighbour’s side of the mine, he acted in response to this threat to his property and should at least be entitled to rely on s 254 of the Code as a partial defence, warranting a lesser charge and sentence. 37. On the other hand, counsel for the respondent argued that the defences of self-defence and defence of property are crafted to prevent individuals from taking the law into their own hands. She contended that the deceased, the complainant and their associates posed no danger to the appellant. She further submitted that the appellant, having armed himself, fired at fleeing individuals, discharging his firearm multiple times, which resulted in the death of the deceased and injuries to the complainant, who was shot twice. 38. Section 253 of the Code 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, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and (b) his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or 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 specified in subsection (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.” 39. Section 254 provides that, if an accused person acted in genuine self-defence but employed means that were not reasonable, the full defence fails, though the crime may be reduced from murder to culpable homicide. Section 257 of the Code provides for the defence of property as follows: “(1) Subject to this Part, the fact that a person accused of a crime was defending his or her or another person’s property 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, the unlawful attack had commenced or was imminent; and his or her conduct was necessary to avert the unlawful attack; and 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 specified in subsection (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. (3) In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court shall have regard to the nature of the property which the person was trying to protect and its value to him or her.” 40. As can be noted, subsection (2) emphasises that the court must assess reasonableness with regard to the circumstances, including the stress or fear on the accused’s mind, while subsection (3) directs the court to consider the nature and value of the property sought to be protected. In S v Nicolle 1991 (1) ZLR, 211 (SC) at p 217 A-C, the Court held that: “In re: S v van Wyk 1967 (1) SA 488 (A) 509A-D where Trollip AJA expressed the view that: ‘What conditions must be fulfilled before killing or seriously injuring another in defence of property can be justified, need not be precisely determined in the present case; the minimum requirements would be somewhat similar to the general limits set aside for self-defence: (1) reasonable grounds for the defender to think that, because of the offender’s unlawful conduct, there was the danger of serious damage to or destruction or loss of the property; (2) the means used in defending it and resulting in the offender’s death or injury were not excessive having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, the time and place of the occurrence, etc; and (3) they were the only means whereby he could avoid the danger.’” 41. In casu, the court a quo found that the requirements of s 253 were not satisfied. Firstly, there was no evidence of an unlawful attack having commenced or being imminent. On the contrary, it was the appellant who sought out the deceased and his colleagues. The State witnesses, who were consistent and corroborated one another, testified that they were engaged in constructing a barricade under the instructions of their employer, Mr Shariwa, and fled in panic when shots were fired by the appellant. The first shot was aimed at the barricade and not in the air as the appellant’s defence outline suggested. Their account was coherent and credible, whereas the appellant’s account was undermined by contradictions and material inconsistencies, not least the inherent improbability that men armed with axes and chisels would advance towards a man holding a gun after three warning shots had been fired. 42. Secondly, the appellant descended into the mine already armed and prepared to confront those he believed to be intruders. This conduct belies his claim that he was under imminent unlawful attack from which he had no other means of escape. This, coupled with the fact that the appellant had other means of dealing with the situation at his disposal, such as engaging law enforcement authorities, is indicative of the fact that the appellant had ways of avoiding the danger if there ever was any. 43. Thirdly, the use of lethal force against fleeing persons cannot be described as necessary or reasonable in the circumstances. The harm caused, a fatal gunshot wound and further injury to another was grossly disproportionate to any perceived threat. 44. As regards the defence of property, s 257 permits force to protect property only against an unlawful and imminent attack and subject to the same test of necessity and proportionality. The evidence, however, demonstrated that the men were not intruders stealing ore but employees of the neighbouring mine, working in the presence of the mine owner’s son. Even assuming that the appellant believed otherwise, the threat to property was not imminent at the moment of shooting, for the men were fleeing. 45. In these circumstances, the trial court correctly rejected both defences. The appellant’s reliance on ss 253 and 257 was misplaced because the essential requirements of imminence, necessity and proportionality were not met. His conduct reflected not lawful defence but a disproportionate resort to violence. Consequently, the second ground of appeal ought to fail. Whether or not the court a quo failed to consider applicable sentencing guidelines and key mitigating factors 46. The appellant advanced three grounds of appeal challenging the sentence imposed by the court a quo. Central to these arguments was the contention that neither the murder nor the attempted murder occurred in aggravating circumstances as defined under ss 47(2) and (3) of the Criminal Code and the Criminal Procedure (Sentencing Guidelines) Regulations, SI 146/23. The appellant further argued that, although his belief that his life and property were under threat was mistaken, it nonetheless reduced his moral culpability. He submitted that the trial court’s failure to consider this factor in its sentencing analysis constituted a misapplication of the Sentencing Guidelines. 47. Conversely, the respondent contended that sentencing lies primarily within the discretion of the trial court, and an appellate court may only interfere in limited circumstances, namely, where there has been a material misdirection, where the sentence is so manifestly excessive as to induce a sense of shock, or where a glaring disparity exists between the sentence imposed and that which the appellate court would have considered appropriate. In this case, the respondent submitted that the sentence imposed was consistent with those ordinarily imposed in murder cases. The court a quo, it was argued, correctly applied the relevant sentencing principles, properly balanced aggravating and mitigating factors and rightly found that the murder was committed in aggravating circumstances, given the appellant’s use of a firearm. Under the Sentencing Guidelines, such conduct places the offence within the aggravating category, carrying a presumptive sentence of twenty years’ imprisonment and a statutory minimum of not less than twenty years. 48. In the case of S v Munakamwe SC121/23 at p 7-8, the court held that: “Having said that, it must also be stated that the position is settled in our law that sentencing is, first and foremost, pre-eminently the discretion of the trial court. The purpose of discretion is certainly to allow the sentencer to select the sentence which he or she believes to be most appropriate in the individual case having regard to the facts and the circumstances of the offender. As to when an appeal court can interfere with the discretion of a trial court, it is also settled that interference can only be done where the sentence is disturbingly inappropriate or where the discretion has been exercised capriciously or upon a wrong principle. The law is impressively captured by Malaba DCJ (as he then was) in Muhomba v The State SC 57/13 at p 9 as follows; ‘On the question of sentencing, it has been said time and again, that sentencing is a matter for the exercise of discretion by the trial court. The appellate court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the appellate court to interfere with the sentence and assess it afresh. The allegation in this case is that the sentence imposed is unduly harsh and induces a sense of shock. In S v Mkombo HB–140/10 at p 3 of the cyclostyled judgment it was held that: ‘The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and aggravation. For an appellate tribunal to interfere with the trial court’s sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H) at 429D; S v Ramushu & Ors S-25-93. It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence. In S v Nhumwa S-40-88 (unreported) at p 5 of the cyclostyled judgment it was stated: ‘It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.’” 49. The case authorities consistently confirm that sentencing lies primarily within the discretion of the trial court. Accordingly, the Court is of the view that the court a quo cannot be faulted for the sentence it imposed. The Criminal Procedure (Sentencing Guidelines) Regulations, 2023 prescribe a presumptive penalty of twenty years’ imprisonment for murder committed in aggravating circumstances and 5 years in respect of attempted murder. The use of a weapon is listed as an aggravating factor. The judgment demonstrates that the court properly considered both mitigating and aggravating factors. Among the aggravating factors, the court noted that the appellant used a lethal weapon and fired at individuals who were fleeing, as corroborated by credible witness evidence. 50. The appellant contends that the court a quo failed to consider mitigating factors; however, the record shows otherwise. The court found that the defence counsel’s submission that the appellant should be sentenced to less than 15 years’ imprisonment was not supported by the law, specifically ss 47(2), (3) and (4) of the Code, as well as the sentencing guidelines. 51. All mitigating factors raised in the appellant’s heads of argument were considered. In particular, the appellant’s claim that he reasonably feared for his life was rejected, as the court found that he fired upon the deceased and his colleagues unprovoked while they were constructing a barricade at their employer’s instruction. Given this, fear could not properly mitigate the sentence. DISPOSITION 52. The appellant was convicted on one count each of murder, attempted murder and assault. In respect of the counts of murder and attempted murder, the appellant discharged his firearm in circumstances where he was not under attack, demonstrating malice and constituting an aggravating factor. There was no misdirection on the part of the court a quo in finding the appellant guilty. Regarding sentence, it is trite that an appellate court will only interfere with a trial court’s sentencing discretion where there is evidence of a misdirection or where the sentence is disturbingly inappropriate. We take the view that no such misdirection has been shown in this case. It has also been consistently held that it is not enough that the appellate court might be of the view that it would have imposed a different sentence had it been in the place of the trial court. It follows that the appeal must fail in its entirety. Accordingly, it is ordered as follows: “The appeal be and is hereby dismissed in its entirety.” MAVANGIRA JA : I agree BHUNU JA : I agree Charles Law Chambers, appellant’s legal practitioners. National Prosecuting Authority, respondent’s legal practitioners. Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 11 Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 11 REPORTABLE (03) CAI YULONG v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 16 SEPTEMBER 2025 & 6 JANUARY 2026 C. Tachiona & L. Mawire, for the appellant T. C. Mujokoro, for the respondent MUSAKWA JA: 1. This is an appeal against conviction and sentence by the High Court of Zimbabwe (‘the court a quo’) convicting the appellant of three charges namely; murder, attempted murder and assault, as defined under ss 47(1), as read with s 189, and s 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (‘the Code’). BACKGROUND FACTS 2. The appellant was brought before the court a quo facing three charges as outlined above. It was alleged that on 24 May 2024, at Stone Steel Mine, also known as Blue Mine, Zhombe, the appellant unlawfully and with intent to kill or alternatively, realising that there was a real risk or possibility that his conduct might cause death and continuing nonetheless, shot Goni Goni in the thigh with a Norinco pistol, thereby causing his death. Using the same firearm, he was further alleged to have attempted to kill John Muchawaya Bera by shooting him once on the right knee and once on the left thigh. Additionally, the appellant was alleged to have unlawfully struck Lovemore Mapfanya once on the head with a clenched fist, intending to cause harm or realising that there was a real risk of causing harm and persisting in his conduct despite that risk. 3. The appellant pleaded not guilty to all the charges. In his defence, he did not dispute shooting the deceased in respect of the murder charge, nor the complainant in the attempted murder charge. He contended that his actions were taken in self-defence and in defence of his property. As to the assault charge, he contended that it was fabricated. 4. The appellant operates Stone Steel Mine, also known as Blue Mine, located in Zhombe, Kwekwe which shares a boundary with Blackhand 10 Mine owned by Cornelius Shariwa. The State’s evidence established that the deceased and the complainants in counts 2 and 3 were employees of Blackhand 10 Mine. On the day of the incident, they had gone underground to erect a barricade at the intersection of Stone Steel Mine and Blackhand 10 Mine. While engaged in this work, the appellant entered his mine via his shaft and proceeded to the intersection. A confrontation ensued, during which the appellant shot at the Blackhand 10 Mine workers, resulting in the death of the deceased and injuries to the complainant in count 2, John Muchawaya Bera. The appellant also allegedly struck another worker, Lovemore Mapfanya, on the head, giving rise to the assault charge in count 3. 5. In his defence outline, the appellant contended that prior to the incident, illegal gold panners had repeatedly breached the underground workings between his mine and Blackhand 10 Mine, stealing gold ore and mining equipment. He claimed that despite reporting these incidents to the police, the problem persisted as no intervention was made by the police. On the day of the incident, the appellant stated that his security guard, Takesure Ndlovu, informed him that intruders had entered the mine. These individuals were allegedly armed with axes, machetes, hammers, chisels and they were engaging in illegal mining activities. According to the appellant, Takesure had encountered the intruders underground but refused to accompany him, claiming that they had chased him and attempted to attack him. 6. According to the appellant, he entered the shaft alone, with a torch on his forehead and saw approximately eight individuals carrying sacks of gold ore from his mine through Blackhand 10 Mine’s exit. All of them were armed with weapons, which included machetes, axes, hammers and chisels. Upon seeing the appellant, they ran toward him, threatening and shouting in a language he did not understand. The appellant fired three warning shots into the roof of the mine to deter the attackers, but they continued charging at him. Fearing for his life and the safety of his property, he shot twice at the legs of the complainant, who was carrying a metal weapon. This complainant retreated after being shot. The deceased, armed with an axe, continued advancing toward the appellant with the intention to attack. The appellant then fired at the deceased's leg, causing him to fall to the ground. The intruders subsequently pulled away the wounded complainant and exited through Blackhand 10 Mine’s shaft. 7. The appellant further stated that he checked on the deceased, who was still alive and attempted to minimise bleeding by using a torn piece of a sack and his work suit to tie the injured leg. He called for assistance from his employees, who helped ferry the deceased out of the shaft. Unfortunately, the deceased passed away before medical help could be obtained. His body was lying on the ground awaiting the arrival of the police. The appellant said he instructed his employee, Roy Taguma, to report the incident to the police. Upon their arrival, the police detained and charged him. He claimed that he had no intention of killing anyone, as evidenced by the injuries inflicted on the people he shot. The appellant said he offered to show the police the weapons and sacks of gold ore left underground by the intruders, but the police declined his offer to go down the mine, even when he offered to provide protective clothing for access into the shaft. THE COURT A QUO’S FINDINGS 8. The court a quo found no evidence to substantiate the appellant’s claim that the deceased and his colleagues were illegal gold miners stealing from his mine. The State’s evidence consistently established that the deceased and the complainants were employees of Mr Cornelius Shariwa, the appellant’s neighbour. This evidence remained unchallenged during both the investigation and trial. Mr Shariwa testified that the deceased and his colleagues were his employees and produced an employee register containing their names, surnames and national identification numbers. Although the defence questioned the register’s authenticity, citing missing details such as employment dates and salaries and its non-registration with the Ministry of Mines, Mr Shariwa explained that there was no legal requirement for such registration and that the register served its intended purpose. The court a quo held that the defence failed to cite any law invalidating the register and concluded that, even without it, Mr Shariwa’s oral testimony sufficiently established the employment status of the deceased and complainants. 9. The court a quo further reasoned that it would be illogical for Mr Shariwa to claim illegal gold panners as his employees, as he would derive no benefit from such a false assertion. The appellant himself acknowledged knowing Mr Shariwa as a neighbour with whom he shared a mining boundary. No evidence was presented to suggest that Mr Shariwa did not have employees or was not conducting mining activities. It was also established that the deceased and his colleagues were working with Mr Shariwa’s son, Komborerai Shariwa, erecting a barricade underground at the intersection of the two mines. The court a quo found it implausible that the son of the mine owner would be engaged in illegal panning. 10. On this basis, the court a quo rejected the appellant’s defences of self-defence and defence of property, holding that the requirements of ss 253, 254, 257, and 258 of the Code in line with self defense and defense of property which entails that a person facing imminent attack should act reasonably in defending the property and self were not met. The court a quo noted that the appellant’s use of a firearm against fleeing individuals was unnecessary, as there was no imminent attack. Even if the deceased and colleagues had been intruders, the appellant could have removed himself or sought assistance rather than resorting to lethal force. 11. Regarding sentence, the court highlighted severe aggravating factors. The murder occurred in a mining shaft where five other individuals were present. The appellant fired indiscriminately in the tunnel and up the shaft, creating a substantial risk of killing or seriously injuring others. The appellant shot at the deceased and his colleagues as they were fleeing, demonstrating malice. The court a quo noted that the sanctity of human life must be upheld and that the appellant’s conduct constituted a cold-blooded killing. Victim impact statements confirmed the profound trauma caused by the deceased’s death. 13. The court a quo also considered mitigatory factors which included that the appellant was a first offender, aged 56, married in China with two adult children and had a minor child in Zimbabwe. He expressed remorse and provided US$3 000 in financial assistance to the deceased’s family. He also attempted to render first aid to the deceased underground. Balancing justice with mercy, the court imposed a sentence of 30 years’ imprisonment for murder, 10 years for attempted murder (with 5 years suspended on condition of no violent offence within five years, running concurrently with the murder sentence), and US$100 for assault or one month’s imprisonment in default of the fine. 14. Dissatisfied with the decision of the court a quo, the appellant noted an appeal to this Court against both conviction and sentence on the following grounds of appeal: “GROUNDS OF APPEAL As regards conviction The court a quo erred in both law and fact by finding that the appellant possessed the requisite intention to kill the deceased and to attempt the murder of John Muchawaya Bera, despite the absence of evidence establishing such intent necessary to sustain convictions for murder and attempted murder. The court a quo erred in both law and fact by convicting the appellant of murder and attempted murder when the evidence clearly established that he was acting in self-defence and in defence of his property. The court a quo erred in both law and fact by convicting the appellant in the absence of sufficient evidence proving that, on the day in question, the victims were constructing a barricade between the appellant’s mine and their employer’s mine and not that they were stealing gold ore. The court a quo erred in fact by accepting warned and cautioned statements that had been inaccurately translated from Chinese to English, thereby creating a misleading impression of the appellant’s attitude towards the alleged offences. As regards sentence The court a quo erred in law and fact by imposing a 30-year sentence without considering s 9 of the Sentencing Guidelines, 2023, and key mitigating factors-including the Appellant’s status as a first offender, advanced age, remorse, assistance with funeral costs, low risk of reoffending, positive contribution to the economy and his conduct subsequent to the shooting which was meant to avert a threat to life. The court a quo erred in law and fact by completely ignoring a mitigatory factor that the appellant’s belief during the time of commission of the offence that his property and life was under threat overwhelmed and clouded his judgment and could not have comprehended the consequence of his actions when he negligently opened fire. The court a quo erred at law by imposing a sentence that is grossly at a tangent with sentences imposed in other cases of similar facts and or circumstances.” The appellant sought relief in the following terms: “WHEREFORE tendering as aforesaid, the appellant prays for the following relief: The appeal against conviction of murder and attempted murder succeeds. 2. The appellant’s conviction and sentence are hereby quashed and the judgment of the court a quo is substituted with the following: ‘The accused be and is hereby found guilty of culpable homicide and assault respectively.’” IN THE FURTHER ALTERNATIVE, that: “1. The appeal against sentence succeeds. The sentence of 30 years and 10 years imprisonment in respect of murder and attempted murder respectively imposed upon the appellant is set aside and substituted with the following; ‘The accused is sentenced as follows: Count 1- 5 years imprisonment Count 2- 2 years imprisonment with one year suspended on condition of a fine not exceeding level 7.’” THE APPELLANT’S SUBMISSIONS ON APPEAL 15. At the hearing of the matter, Mr Tachiona, counsel for the appellant, submitted that the court a quo erred in convicting the appellant of murder in circumstances where he lacked the requisite intention to kill. He argued that the appellant acted in self-defence, seeking to protect both himself and his property from imminent harm. Counsel highlighted that before discharging the fatal shot, the appellant had fired three warning shots, to which the deceased did not respond. He further contended that the appellant did not aim at a vital organ such as the head, demonstrating that there was no intention to kill. In addition, reliance was placed on the medical affidavit, which confirmed that death resulted from excessive bleeding. Counsel pointed out that the appellant attempted to stop the bleeding by tying the wound with the deceased’s tracksuit and later transported him to the hospital. 16. On sentence, counsel submitted that the punishment imposed was excessive, particularly given mitigating factors such as the appellant’s contribution to the funeral expenses of the deceased and his role in the mining industry, which benefits the economy. He proposed that, should the conviction be upheld, the sentence ought to be reduced to 15 years’ imprisonment for murder, with a 2-year sentence for attempted murder wholly suspended on condition of payment of a fine not exceeding level seven. 17. The court queried the appellant’s defence on the attempted murder charge, noting that the victim had been shot from the back, which appeared inconsistent with the plea of self-defence. In reply, counsel maintained that the incident occurred in darkness, amidst a scuffle involving many people and that the shooting of the victim could have happened accidentally. He insisted that the appellant had no intention either to kill or to attempt to kill. THE RESPONDENT’S SUBMISSIONS ON APPEAL 18. On the other hand, Ms Mujokoro, counsel for the respondent, contended that the appellant’s guilt had been established beyond a reasonable doubt. She maintained that there was no lawful justification for shooting either the deceased or the victim of attempted murder. Counsel emphasised that both victims were shot from the back or the side, which indicated that they were fleeing from the appellant. Regarding sentence, she submitted that the court a quo committed no misdirection and that the sentence imposed was consistent with established case law. ISSUES FOR DETERMINATION 19. The following issues arise for determination: Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established. Whether or not the court a quo erred in making the factual finding that the complainants were constructing a barricade and not stealing gold ore. Whether or not the court a quo erred in finding that the defences of self-defence and defence of property were not applicable under the circumstances. Whether or not the court a quo failed to consider applicable sentencing guidelines and key mitigating factors APPLICATION OF THE LAW TO THE FACTS Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established. 20. The first ground of appeal concerns whether the court a quo erred in finding that the appellant possessed the requisite intention to commit murder and attempted murder. The appellant contended that, although a firearm had been employed, he deliberately aimed at the legs of both the deceased and the surviving complainant, John Muchawaya Bera which areas of the body he averred were not ordinarily regarded as vital or inherently fatal. He argued that this deliberate targeting demonstrated an intention to disable or deter rather than to kill. Furthermore, the appellant submitted that he had a clear opportunity to aim at more vulnerable parts of the body but consciously refrained from doing so, a factor which, in his view, negated any inference of intent to kill, thereby contradicting the earlier assertion that the shooting took place in the dark. 21. Counsel for the respondent, in turn, relied on the post-mortem report, which recorded an entry wound on the external side of the deceased’s left thigh and an exit wound on the internal side. It was argued on behalf of the respondent that this trajectory did not support the appellant’s claim that the deceased was advancing towards him, rendering his account of being confronted with an axe implausible. The respondent further submitted that, even if the appellant lacked a direct intent to kill, he must have been aware of the real risk or possibility that discharging a firearm at fleeing individuals could result in death. 22. Snyman, in his book, Strafreg 5th ed (2008) at p 447, identifies the elements of the crime of murder as: (a) causing the death, (b) of another human being, (c) unlawfully, and (d) intentionally. By contrast, the elements of culpable homicide are: (a) causing the death, (b) of another person, (c) unlawfully, and (d) negligently. These definitions find clear resonance in the wording of s 47 of the Code, which provides in material part that: “(1) Any person who causes the death of another person— (a) intending to kill the other person; or (b) 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.” 23. In S v Mugwanda 2002 (1) ZLR 574 (S) at 581 D-E, the court, with precision and clarity, explained actual and legal intention when it stated as follows: “On the basis of the above it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond reasonable doubt that: Either the accused desired to bring about the death of his victim and succeeded in completing his purpose, or While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless… on the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else) in the test for culpable homicide the test(s) he ought to, as a reasonable man have foreseen the death of the deceased.” (My emphasis) 24. Similarly, in S v Mini 1963 (3) SA 188 (A) at 191H, the court held that the foresight of a possibility, even if slight or remote in nature, constitutes the cognitive component of dolus eventualis. In the same vein, Holmes JA emphasised that subjective foresight of the possibility, however remote, that unlawful conduct may cause the death of another is sufficient to satisfy the element of foreseeability required for dolus eventualis (the current equivalent of realisation of real risk or possibility of harm). 25. In light of the above authorities and provisions, it is clear that intention is established not only where an accused possesses direct intention (dolus directus) to kill, but also where he foresees the real risk or possibility that death may result from his conduct and nevertheless reconciles himself to that outcome. The law does not require foresight of death as a certainty, nor even as a probability. It is enough that the appellant appreciated the real risk of death, however remote, and consciously proceeded in disregard of that risk. Further, in the case of R v Ndhlovu 1945 AD 369 at 386, it was opined that the State can discharge the onus of proving legal intent either by direct evidence or by the proof of facts from which a necessary inference may be drawn. One such fact from which such an inference may be drawn is the lack of an acceptable explanation by an accused person in his defence. 26. In the present case, the record shows that the appellant armed himself, confronted the alleged intruders and fired at fleeing individuals. The post-mortem report established that a shot to the leg caused fatal hypovolemic shock, demonstrating that even targeting non-vital areas carries a real risk of death. The trajectory and circumstances contradict the appellant’s claim that the deceased was charging at him, supporting the inference that he foresaw and reconciled himself with the risk of death, however remote. 27. In addition, considering the lethal nature of a firearm, the appellant’s decision to descend into the mine whilst armed and the implausibility of his assertion that he reasonably suspected intruders while being aware that workers from a neighbouring mine could be present, it is apparent that he subjectively reconciled himself with the possibility of causing death. The medical evidence confirms that he fired at individuals who were not advancing toward him but were facing away at close range. The fact that he aimed at the legs and thighs does not negate the foresight that death might result, as firing from such proximity with a firearm may be fatal. His conduct, entering the mine armed and prepared to inflict harm, justifies the inference that, at some point, he must have contemplated the possibility of death resulting from his actions. 28. Accordingly, we are of the view that the court a quo correctly concluded that the appellant subjectively foresaw the possibility of death and reconciled himself to it. Its findings of murder and attempted murder were therefore properly arrived at. Whether or not the court a quo erred in making the factual finding that the complainants were constructing a barricade and not stealing gold ore. 29. The appellant argued that the court a quo erred in concluding that the deceased and the complainants were constructing a barricade, asserting that there was no credible evidence to support such a finding. He relied on alleged shortcomings in the police investigation, noting that the investigating officer neither descended into the mineshaft to verify the events nor conducted an on-site inspection. According to the appellant, the lack of corroborative evidence left the competing versions, whether the victims were building a barricade or engaged in illegal mining unresolved and that the benefit of doubt should have been afforded to him. The respondent, however, maintained that fact-finding falls squarely within the domain of the trial court. 30. In the case of Kereke v Maramwidze & Anor SC 86/21 at p 11, the Court held as follows: “It is trite that an appellate court is slow to interfere with the factual findings of a lower tribunal. The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC 47/09 as follows: ‘There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.’” See also Zvokusekwa v Bikita Rural District Council SC 34/15. 31. In Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a Track & Anor SC 59/16 p 11 para 36, it was held that: “The position is now settled that an appellate court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the appeal court will not interfere. This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (s). At 670, Korsah JA remarked: ‘The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion…’ It is also an established principle that an appellate court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC 78/14 at p 7 where the Court remarked as follows: ‘As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility. However, as was observed in Santam BPK v Biddulph (2004) 2 All SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be overemphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.’” 32. In light of the above, this Court is of the view that whether the deceased and his colleagues were constructing a barricade or stealing gold ore is a matter of fact, falling squarely within the purview of the trial court. This Court must be slow to interfere with such findings, particularly where they rest on assessments of witness credibility. On a reading of the record, we find no basis to disturb the trial court’s conclusion. The State witnesses gave a consistent and corroborated account of the circumstances, including what they were doing and how the shooting unfolded. Their evidence was coherent and unshaken under cross-examination. The trial court, having had the advantage of observing their demeanour, accepted them as credible witnesses and their credibility not having been impugned, this Court ought not to interfere with the same. The third ground of appeal ought to fail on this account. 33. However, for the sake of completeness, even if the issue of the barricade is essentially factual, we take the view that the conclusion of the court a quo cannot be faulted on the evidence available. In its judgment, the trial court lamented the shortcomings of the police investigation, particularly the failure of the investigating officer to independently determine the precise scene of the crime underground, the exact point of the shooting or whether a barricade existed at that location. Nonetheless, despite these investigative deficiencies, we take the view that the court a quo cannot be faulted for concluding that the deceased, the complainant and their colleagues could not have been illegal gold panners as there was evidence that the same were employees of the next farm. 34. The judgment of the court a quo demonstrates that it relied upon the testimony of credible witnesses. The court was satisfied that the deceased and his colleagues were engaged in erecting a barricade between the two tunnels. This conclusion is borne out by the consistency of the State witnesses’ accounts, notwithstanding minor discrepancies regarding when the work commenced. The witnesses, like Lovemore Mapfanya, John Muchawaya Bera, Komborerai Shariwa, and Gonai Masundire, testified that they had gone underground to construct a barricade at Level One between their tunnel and the appellant’s tunnel. The existence of tunnel encroachment was not in dispute. The appellant himself admitted that there was no barricade underground and complained that unauthorised persons had breached the boundary and encroached more than ten metres into his mine from Mr Shariwa’s side. Mr Cornelius Shariwa corroborated the encroachment, testifying that he had observed smoke from explosives on the appellant’s side, after which he had agreed with the appellant’s blasters on the need for a barricade. He stated that he then instructed his employees to erect it, which is what they were doing on the day of the shooting. 35. Moreover, the court a quo found that the appellant himself admitted that he had not seen the deceased and his colleagues mining, but simply concluded that they were intruders, upon noticing sacks in the tunnel. He failed to explain the origin of the gold ore he alleged was being stolen. By contrast, the testimony of the deceased’s colleagues that the sacks contained waste material used for barricade construction was consistent and credible. This lent further support to the trial court’s finding that the deceased and his colleagues were lawfully engaged in barricade-related work and not in unlawful panning. Whether or not the court a quo erred in finding that the defence of self-defence and defence of property were not applicable under the circumstances. 36. The appellant contended that he acted in self-defence and in defence of his property. He submitted that, upon entering the mine, he encountered the deceased and others armed with axes, machetes and chisels. He stated that he believed that his life was in danger, hence he fired three warning shots. When they allegedly advanced towards him, he aimed at their legs to immobilise rather than kill. He relied on s 253 (1) of the Criminal Code, which permits the use of reasonable force to defend oneself against an unlawful attack and s 257, which allows force to protect property from unlawful interference. The appellant maintained that, having been informed by his security of intruders stealing gold ore and entering through a neighbour’s side of the mine, he acted in response to this threat to his property and should at least be entitled to rely on s 254 of the Code as a partial defence, warranting a lesser charge and sentence. 37. On the other hand, counsel for the respondent argued that the defences of self-defence and defence of property are crafted to prevent individuals from taking the law into their own hands. She contended that the deceased, the complainant and their associates posed no danger to the appellant. She further submitted that the appellant, having armed himself, fired at fleeing individuals, discharging his firearm multiple times, which resulted in the death of the deceased and injuries to the complainant, who was shot twice. 38. Section 253 of the Code 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, the unlawful attack had commenced or was imminent or he or she believed on reasonable grounds that the unlawful attack had commenced or was imminent, and (b) his or her conduct was necessary to avert the unlawful attack and he or she could not otherwise escape from or avert the attack or 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 specified in subsection (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.” 39. Section 254 provides that, if an accused person acted in genuine self-defence but employed means that were not reasonable, the full defence fails, though the crime may be reduced from murder to culpable homicide. Section 257 of the Code provides for the defence of property as follows: “(1) Subject to this Part, the fact that a person accused of a crime was defending his or her or another person’s property 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, the unlawful attack had commenced or was imminent; and his or her conduct was necessary to avert the unlawful attack; and 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 specified in subsection (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. (3) In determining whether or not any means used by a person to avert an unlawful attack were reasonable, or whether or not any harm or injury caused to an attacker was proportionate to that liable to be caused by an unlawful attack, a court shall have regard to the nature of the property which the person was trying to protect and its value to him or her.” 40. As can be noted, subsection (2) emphasises that the court must assess reasonableness with regard to the circumstances, including the stress or fear on the accused’s mind, while subsection (3) directs the court to consider the nature and value of the property sought to be protected. In S v Nicolle 1991 (1) ZLR, 211 (SC) at p 217 A-C, the Court held that: “In re: S v van Wyk 1967 (1) SA 488 (A) 509A-D where Trollip AJA expressed the view that: ‘What conditions must be fulfilled before killing or seriously injuring another in defence of property can be justified, need not be precisely determined in the present case; the minimum requirements would be somewhat similar to the general limits set aside for self-defence: (1) reasonable grounds for the defender to think that, because of the offender’s unlawful conduct, there was the danger of serious damage to or destruction or loss of the property; (2) the means used in defending it and resulting in the offender’s death or injury were not excessive having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, the time and place of the occurrence, etc; and (3) they were the only means whereby he could avoid the danger.’” 41. In casu, the court a quo found that the requirements of s 253 were not satisfied. Firstly, there was no evidence of an unlawful attack having commenced or being imminent. On the contrary, it was the appellant who sought out the deceased and his colleagues. The State witnesses, who were consistent and corroborated one another, testified that they were engaged in constructing a barricade under the instructions of their employer, Mr Shariwa, and fled in panic when shots were fired by the appellant. The first shot was aimed at the barricade and not in the air as the appellant’s defence outline suggested. Their account was coherent and credible, whereas the appellant’s account was undermined by contradictions and material inconsistencies, not least the inherent improbability that men armed with axes and chisels would advance towards a man holding a gun after three warning shots had been fired. 42. Secondly, the appellant descended into the mine already armed and prepared to confront those he believed to be intruders. This conduct belies his claim that he was under imminent unlawful attack from which he had no other means of escape. This, coupled with the fact that the appellant had other means of dealing with the situation at his disposal, such as engaging law enforcement authorities, is indicative of the fact that the appellant had ways of avoiding the danger if there ever was any. 43. Thirdly, the use of lethal force against fleeing persons cannot be described as necessary or reasonable in the circumstances. The harm caused, a fatal gunshot wound and further injury to another was grossly disproportionate to any perceived threat. 44. As regards the defence of property, s 257 permits force to protect property only against an unlawful and imminent attack and subject to the same test of necessity and proportionality. The evidence, however, demonstrated that the men were not intruders stealing ore but employees of the neighbouring mine, working in the presence of the mine owner’s son. Even assuming that the appellant believed otherwise, the threat to property was not imminent at the moment of shooting, for the men were fleeing. 45. In these circumstances, the trial court correctly rejected both defences. The appellant’s reliance on ss 253 and 257 was misplaced because the essential requirements of imminence, necessity and proportionality were not met. His conduct reflected not lawful defence but a disproportionate resort to violence. Consequently, the second ground of appeal ought to fail. Whether or not the court a quo failed to consider applicable sentencing guidelines and key mitigating factors 46. The appellant advanced three grounds of appeal challenging the sentence imposed by the court a quo. Central to these arguments was the contention that neither the murder nor the attempted murder occurred in aggravating circumstances as defined under ss 47(2) and (3) of the Criminal Code and the Criminal Procedure (Sentencing Guidelines) Regulations, SI 146/23. The appellant further argued that, although his belief that his life and property were under threat was mistaken, it nonetheless reduced his moral culpability. He submitted that the trial court’s failure to consider this factor in its sentencing analysis constituted a misapplication of the Sentencing Guidelines. 47. Conversely, the respondent contended that sentencing lies primarily within the discretion of the trial court, and an appellate court may only interfere in limited circumstances, namely, where there has been a material misdirection, where the sentence is so manifestly excessive as to induce a sense of shock, or where a glaring disparity exists between the sentence imposed and that which the appellate court would have considered appropriate. In this case, the respondent submitted that the sentence imposed was consistent with those ordinarily imposed in murder cases. The court a quo, it was argued, correctly applied the relevant sentencing principles, properly balanced aggravating and mitigating factors and rightly found that the murder was committed in aggravating circumstances, given the appellant’s use of a firearm. Under the Sentencing Guidelines, such conduct places the offence within the aggravating category, carrying a presumptive sentence of twenty years’ imprisonment and a statutory minimum of not less than twenty years. 48. In the case of S v Munakamwe SC121/23 at p 7-8, the court held that: “Having said that, it must also be stated that the position is settled in our law that sentencing is, first and foremost, pre-eminently the discretion of the trial court. The purpose of discretion is certainly to allow the sentencer to select the sentence which he or she believes to be most appropriate in the individual case having regard to the facts and the circumstances of the offender. As to when an appeal court can interfere with the discretion of a trial court, it is also settled that interference can only be done where the sentence is disturbingly inappropriate or where the discretion has been exercised capriciously or upon a wrong principle. The law is impressively captured by Malaba DCJ (as he then was) in Muhomba v The State SC 57/13 at p 9 as follows; ‘On the question of sentencing, it has been said time and again, that sentencing is a matter for the exercise of discretion by the trial court. The appellate court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the appellate court to interfere with the sentence and assess it afresh. The allegation in this case is that the sentence imposed is unduly harsh and induces a sense of shock. In S v Mkombo HB–140/10 at p 3 of the cyclostyled judgment it was held that: ‘The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and aggravation. For an appellate tribunal to interfere with the trial court’s sentencing discretion there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H) at 429D; S v Ramushu & Ors S-25-93. It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence. In S v Nhumwa S-40-88 (unreported) at p 5 of the cyclostyled judgment it was stated: ‘It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.’” 49. The case authorities consistently confirm that sentencing lies primarily within the discretion of the trial court. Accordingly, the Court is of the view that the court a quo cannot be faulted for the sentence it imposed. The Criminal Procedure (Sentencing Guidelines) Regulations, 2023 prescribe a presumptive penalty of twenty years’ imprisonment for murder committed in aggravating circumstances and 5 years in respect of attempted murder. The use of a weapon is listed as an aggravating factor. The judgment demonstrates that the court properly considered both mitigating and aggravating factors. Among the aggravating factors, the court noted that the appellant used a lethal weapon and fired at individuals who were fleeing, as corroborated by credible witness evidence. 50. The appellant contends that the court a quo failed to consider mitigating factors; however, the record shows otherwise. The court found that the defence counsel’s submission that the appellant should be sentenced to less than 15 years’ imprisonment was not supported by the law, specifically ss 47(2), (3) and (4) of the Code, as well as the sentencing guidelines. 51. All mitigating factors raised in the appellant’s heads of argument were considered. In particular, the appellant’s claim that he reasonably feared for his life was rejected, as the court found that he fired upon the deceased and his colleagues unprovoked while they were constructing a barricade at their employer’s instruction. Given this, fear could not properly mitigate the sentence. DISPOSITION 52. The appellant was convicted on one count each of murder, attempted murder and assault. In respect of the counts of murder and attempted murder, the appellant discharged his firearm in circumstances where he was not under attack, demonstrating malice and constituting an aggravating factor. There was no misdirection on the part of the court a quo in finding the appellant guilty. Regarding sentence, it is trite that an appellate court will only interfere with a trial court’s sentencing discretion where there is evidence of a misdirection or where the sentence is disturbingly inappropriate. We take the view that no such misdirection has been shown in this case. It has also been consistently held that it is not enough that the appellate court might be of the view that it would have imposed a different sentence had it been in the place of the trial court. It follows that the appeal must fail in its entirety. Accordingly, it is ordered as follows: “The appeal be and is hereby dismissed in its entirety.” MAVANGIRA JA : I agree BHUNU JA : I agree Charles Law Chambers, appellant’s legal practitioners. National Prosecuting Authority, respondent’s legal practitioners.