The State v Samson Katsuro [2025] ZWCHHC 15 (14 February 2025)

3 HCC 05/25 HCCR 1582/24 THE STATE Versus SAMSON KATSURO HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,14 February 2025 Assessors: 1. Mr. Mutombwa 2. Mr. Kamanga Sentencing Judgment K. Teveraishe, for the State T. Matiyashe, for the accused MUZOFA J: Introduction In this family feud, which resulted in the death of the deceased, the accused took all the blame which led to the acquittal of his co accused. The accused appeared before us facing a charge of murder in contravention of s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He stabbed the deceased several times leading to his death. The deceased and the accused were cousins. The two families have an acrimonious relationship inundated with violence. We were told the deceased had, prior to this offence stabbed one of his cousin brothers’ son. The deceased and the accused lived in the same community at Village 6 Mzvezve, Sanyati together with their siblings. The State case, anchored by the deceased’s brother, two relatives and the investigating officer did not establish how the fight between the accused and deceased started. In the main judgment we made a finding that the three eye witnesses contradicted each other that their evidence could not be relied on. The probative value of the evidence was next to nil. We therefore accepted the accused’s version of what transpired. We made a finding that the accused was attacked by the deceased who stabbed him once on the stomach. There was evidence that immediately after the assault the accused went to make a report to the Police and he was injured. The medical report was produced before this Court. After the deceased stabbed the accused, as admitted and narrated by the accused, the deceased was disarmed. The accused, armed with the knife stabbed the deceased several times. The injuries were concentrated on the lower part of the deceased’s body. The accused was at pains to explain how he stabbed the deceased on his right ankle several times if they were tussling for the knife. We were left with questions and concluded that there could be more to this case that was not disclosed to the court. The truth of what transpired remains unknown to this Court, it is only known by this family. The Court could only make its assessment using what was placed before it. Having considered both the State evidence and the defence case we concluded that the accused acted in self-defence in view of the following: The accused was under an unlawful attack from the deceased.His conduct was necessary to avert the attack. He could not continue running away. He initially ran away from the deceased who pursued him. The accused a 51 year old pursued by a youthful deceased could not have outpaced the deceased. He eventually got tired and stopped that is when the attack commenced.The means he used to avert the attack were not reasonable in the circumstances. This is because when he disarmed the deceased he continued to stab him until the deceased lay unconscious.The harm was directed to the attacker who was the deceased. Since the means to avert the attack were unreasonable. The finding does not completely exonerate the accused, it only reduces the charge from murder to culpable homicide as provided under s254 of the Criminal Law Code. The accused was accordingly acquitted on the charge of murder. He was convicted with culpable homicide. Mitigation The accused is a first offender and a family man with 6 children of which most are adults. He is aged 51 years. The accused is both the villain and victim here. He killed his brother regard being made to our culture. He will live with the stigma of having taken away one of his own. The deceased was the aggressor, it is highly mitigatory that the accused tried to escape but the deceased pursued him. When he caught up with the accused, he stabbed him in the stomach. Certainly, had the accused not wrestled the knife from the deceased, he could be dead. But for the deceased’s persistence the offence may not have been committed. It is disturbing that despite these proceedings it appears the family feud has continued in a new twist. There are signs that this death could be the beginning of yet another clash in the future between the families. The deceased’s brother Checkers Katsuro said the accused and his siblings did not attend the funeral, did not extend an olive leaf to them even an apology. He was visibly irked by their conduct. He expressed his shock that the accused and co-accused who assaulted the deceased in broad day denied the offence. In our view to express their deep anger Checkers’ family decided to bury the deceased within the accused’s yard. Asked why they did so, he said because ‘they had done their work’ whatever that meant but to the Court that was a mouthful and a threat. We found this to be reprehensible and conduct spoiling for future clashes. Besides the sentence that would be meted the accused will live with a grave right in his yard. The accused did not suffer a long period in pre-trial incarceration. He was in custody for about two weeks. Similarly, this case was investigated and prosecuted within a year which means he did not stay a long period with the case hanging over his head. Aggravation Checkers gave evidence for the victim impact statement. He is the first born in the deceased’s family. The deceased was the last born. The deceased was not married but had a child who lives with his mother. The deceased supported his family financially. He said the death of the deceased resulted in both psychological suffering and financial loss to the family. However, the greatest impact was the shock that his relatives could kill one of their own in cold blood. He said the whole community was shaken by the violence, and then to deny committing the offence was regrettable. Although not proved before us, he said the co-accused persons who were acquitted bragged that they always get away with murder. Obviously, Checkers and his siblings are not satisfied. Members of the public must know that Courts of law operate based on certain legal principles that must be applied to come to an objective decision. The State at all times must prove its case beyond a reasonable doubt. Where a doubt arises, it operates in the accused’s favour. To our mind the deceased’s family’s response demonstrates the psychological effect of the crime on them. Some intervention is required. The responsible authorities, or the police public relations must reach out to such parties for psycho social support. It is commendable that the Legislature created a platform for the victims to be heard. Victims are not heard for assessment of sentences only. The victim impact statement elicits the physical, psychological, social or financial consequences of the offence on the victim or any other person connected to the victim. If the justice delivery system is moving towards a holistic approach to achieve transformative justice it should not leave out the victim. The victims must be assisted to pick up the pieces and move on with normal life. It seems the justice delivery system focuses on the accused only. Its high time interventions must be made to address the consequences of crime on the victim. The deceased’s family’s response to the offence to bury the deceased at accused’s homestead is a cry for an intervention. However, it is aggravating that no apology was even given to the deceased’s family. Life was lost and it cannot be replaced. We have to determine the degree of negligence first. The degree of negligence and other attendant mitigating and aggravating factors aid in the determination of the sentence to be imposed. Mr Matiyashe was of the view that the level of negligence was on the low side. We do not agree. The accused’s conduct went beyond ordinary negligence. This is because when he disarmed the deceased, he had the upper hand as he was now armed. He then started stabbing the deceased, not only once or twice he stabbed him several times. We rejected his evidence that the deceased was relentless he kept on fighting to wrestle the knife from the accused. This is not true regard being had to the injuries. If the deceased was standing tussling with the accused for the knife, then most of the stab wounds would be on the upper part of his body. We could not imagine how the accused would bend and stab the deceased on his ankles while the deceased tried to dispossess him of the knife. It is not possible. The only inference is that deceased was stabbed while on the ground. The continuous stabbing in our view was revenge rather than self-defence. Generally, in murder cases intention can be inferred from the circumstances of the case like the weapon used, the part of body the blows are directed and the number of blows. See S v Mutoti HCC 41/23. The same considerations are applicable in consideration of the level of negligence. In our view the level of negligence is on the medium. The penalty provision provides for a maximum sentence of life imprisonment or any definite period of imprisonment or a fine up to or exceeding level fourteen or both. The wide range of sentences gives the court latitude to impose a sentence that fits the circumstances of the case.The Sentencing Guidelines have introduced a means to align like cases .In terms of the said Guidelines where the mitigatory factors outweigh the aggravating circumstances the presumptive sentence is 3 years. The listed mitigatory factors include factors such as where the deceased contributed to his death, compensation paid and assistance rendered to the deceased. In this case nothing was paid, the accused left the deceased at the scene of crime. He did not even try to get transport to take deceased to the hospital. The deceased was his relative but he did nothing to assist. On the other hand, where there are aggravating circumstances a sentence of more than 5 years imprisonment can be imposed. See S v Chinembiri HH 291-24. The accused’s culpability is that he did not act reasonably in circumstances where a reasonable person could have averted the death. However, the accused laboured under some pressures. Deceased had already expressed his intention that he was looking for him and had attacked him. There is a level to which a person can try and avoid violence, similarly a person is allowed at law to stand their ground albeit in a measured way. In R v Mpofu 1968 (2) RLR 319 the court had this to say, “a person has the same right to use force in the defence of another from a threatened danger as he has to use force in defence of himself. The onus of disproving such defence is in either case on the Crown” In the case of S v Chirwa HH66-23 the court held that deadly force is appropriate in self defence when the attacker threatens death or serious bodily injury. Buttressing the same position G. Feltoe in A Guide to the Criminal Law of Zimbabwe Third Edition 2004 at page 42 said; “If a person is faced with the terrifying prospect of an attacker who’s about to kill or gravely injure him, he will have to respond immediately with whatever weapons are at hand”. The sentence must strike a balance of the triad the accused, the offence and the society. The Court cannot over emphasize the interest of society at the expense of the accused’s circumstances and the circumstances surrounding the commission of the offence. In S v Kumire SC 63/24 the accused was found guilty of culpable homicide and the level of negligence ordinary. The deceased taunted the accused persistently about his medical condition until the accused struck and killed him. A sentence of 7 years with 4 years conditionally suspended was imposed. In S v Ndlovu HB 42/24 the deceased pursued the accused and assaulted him. The accused in defending himself struck the deceased once on the head and died. A sentence of 3 years imprisonment 2 years suspended conditionally. The remaining 1 year was suspended on condition of performance of community service. The circumstances of each case must be considered. In this case the accused struck the deceased several times after being attacked. The accused struck the deceased several times until he died.This is not a case that locates itself at the lower end of culpable homicide to warrant community service. Accordingly, the accused is sentenced to; 5 years imprisonment of which 1 year imprisonment is suspended for 3 years on condition that within that period the accused is not convicted of an offence involving violence or causing the death of another for which upon conviction he is sentenced to imprisonment without the option of a fine. National Prosecuting Authority, the State’s Legal Practitioners Matiyashe Law Chambers, the accused’s Legal Practitioners 3 HCC 05/25 HCCR 1582/24 3 HCC 05/25 HCCR 1582/24 THE STATE Versus SAMSON KATSURO HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI,14 February 2025 Assessors: 1. Mr. Mutombwa 2. Mr. Kamanga Sentencing Judgment K. Teveraishe, for the State T. Matiyashe, for the accused MUZOFA J: Introduction In this family feud, which resulted in the death of the deceased, the accused took all the blame which led to the acquittal of his co accused. The accused appeared before us facing a charge of murder in contravention of s47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He stabbed the deceased several times leading to his death. The deceased and the accused were cousins. The two families have an acrimonious relationship inundated with violence. We were told the deceased had, prior to this offence stabbed one of his cousin brothers’ son. The deceased and the accused lived in the same community at Village 6 Mzvezve, Sanyati together with their siblings. The State case, anchored by the deceased’s brother, two relatives and the investigating officer did not establish how the fight between the accused and deceased started. In the main judgment we made a finding that the three eye witnesses contradicted each other that their evidence could not be relied on. The probative value of the evidence was next to nil. We therefore accepted the accused’s version of what transpired. We made a finding that the accused was attacked by the deceased who stabbed him once on the stomach. There was evidence that immediately after the assault the accused went to make a report to the Police and he was injured. The medical report was produced before this Court. After the deceased stabbed the accused, as admitted and narrated by the accused, the deceased was disarmed. The accused, armed with the knife stabbed the deceased several times. The injuries were concentrated on the lower part of the deceased’s body. The accused was at pains to explain how he stabbed the deceased on his right ankle several times if they were tussling for the knife. We were left with questions and concluded that there could be more to this case that was not disclosed to the court. The truth of what transpired remains unknown to this Court, it is only known by this family. The Court could only make its assessment using what was placed before it. Having considered both the State evidence and the defence case we concluded that the accused acted in self-defence in view of the following: The accused was under an unlawful attack from the deceased. His conduct was necessary to avert the attack. He could not continue running away. He initially ran away from the deceased who pursued him. The accused a 51 year old pursued by a youthful deceased could not have outpaced the deceased. He eventually got tired and stopped that is when the attack commenced. The means he used to avert the attack were not reasonable in the circumstances. This is because when he disarmed the deceased he continued to stab him until the deceased lay unconscious. The harm was directed to the attacker who was the deceased. Since the means to avert the attack were unreasonable. The finding does not completely exonerate the accused, it only reduces the charge from murder to culpable homicide as provided under s254 of the Criminal Law Code. The accused was accordingly acquitted on the charge of murder. He was convicted with culpable homicide. Mitigation The accused is a first offender and a family man with 6 children of which most are adults. He is aged 51 years. The accused is both the villain and victim here. He killed his brother regard being made to our culture. He will live with the stigma of having taken away one of his own. The deceased was the aggressor, it is highly mitigatory that the accused tried to escape but the deceased pursued him. When he caught up with the accused, he stabbed him in the stomach. Certainly, had the accused not wrestled the knife from the deceased, he could be dead. But for the deceased’s persistence the offence may not have been committed. It is disturbing that despite these proceedings it appears the family feud has continued in a new twist. There are signs that this death could be the beginning of yet another clash in the future between the families. The deceased’s brother Checkers Katsuro said the accused and his siblings did not attend the funeral, did not extend an olive leaf to them even an apology. He was visibly irked by their conduct. He expressed his shock that the accused and co-accused who assaulted the deceased in broad day denied the offence. In our view to express their deep anger Checkers’ family decided to bury the deceased within the accused’s yard. Asked why they did so, he said because ‘they had done their work’ whatever that meant but to the Court that was a mouthful and a threat. We found this to be reprehensible and conduct spoiling for future clashes. Besides the sentence that would be meted the accused will live with a grave right in his yard. The accused did not suffer a long period in pre-trial incarceration. He was in custody for about two weeks. Similarly, this case was investigated and prosecuted within a year which means he did not stay a long period with the case hanging over his head. Aggravation Checkers gave evidence for the victim impact statement. He is the first born in the deceased’s family. The deceased was the last born. The deceased was not married but had a child who lives with his mother. The deceased supported his family financially. He said the death of the deceased resulted in both psychological suffering and financial loss to the family. However, the greatest impact was the shock that his relatives could kill one of their own in cold blood. He said the whole community was shaken by the violence, and then to deny committing the offence was regrettable. Although not proved before us, he said the co-accused persons who were acquitted bragged that they always get away with murder. Obviously, Checkers and his siblings are not satisfied. Members of the public must know that Courts of law operate based on certain legal principles that must be applied to come to an objective decision. The State at all times must prove its case beyond a reasonable doubt. Where a doubt arises, it operates in the accused’s favour. To our mind the deceased’s family’s response demonstrates the psychological effect of the crime on them. Some intervention is required. The responsible authorities, or the police public relations must reach out to such parties for psycho social support. It is commendable that the Legislature created a platform for the victims to be heard. Victims are not heard for assessment of sentences only. The victim impact statement elicits the physical, psychological, social or financial consequences of the offence on the victim or any other person connected to the victim. If the justice delivery system is moving towards a holistic approach to achieve transformative justice it should not leave out the victim. The victims must be assisted to pick up the pieces and move on with normal life. It seems the justice delivery system focuses on the accused only. Its high time interventions must be made to address the consequences of crime on the victim. The deceased’s family’s response to the offence to bury the deceased at accused’s homestead is a cry for an intervention. However, it is aggravating that no apology was even given to the deceased’s family. Life was lost and it cannot be replaced. We have to determine the degree of negligence first. The degree of negligence and other attendant mitigating and aggravating factors aid in the determination of the sentence to be imposed. Mr Matiyashe was of the view that the level of negligence was on the low side. We do not agree. The accused’s conduct went beyond ordinary negligence. This is because when he disarmed the deceased, he had the upper hand as he was now armed. He then started stabbing the deceased, not only once or twice he stabbed him several times. We rejected his evidence that the deceased was relentless he kept on fighting to wrestle the knife from the accused. This is not true regard being had to the injuries. If the deceased was standing tussling with the accused for the knife, then most of the stab wounds would be on the upper part of his body. We could not imagine how the accused would bend and stab the deceased on his ankles while the deceased tried to dispossess him of the knife. It is not possible. The only inference is that deceased was stabbed while on the ground. The continuous stabbing in our view was revenge rather than self-defence. Generally, in murder cases intention can be inferred from the circumstances of the case like the weapon used, the part of body the blows are directed and the number of blows. See S v Mutoti HCC 41/23. The same considerations are applicable in consideration of the level of negligence. In our view the level of negligence is on the medium. The penalty provision provides for a maximum sentence of life imprisonment or any definite period of imprisonment or a fine up to or exceeding level fourteen or both. The wide range of sentences gives the court latitude to impose a sentence that fits the circumstances of the case.The Sentencing Guidelines have introduced a means to align like cases .In terms of the said Guidelines where the mitigatory factors outweigh the aggravating circumstances the presumptive sentence is 3 years. The listed mitigatory factors include factors such as where the deceased contributed to his death, compensation paid and assistance rendered to the deceased. In this case nothing was paid, the accused left the deceased at the scene of crime. He did not even try to get transport to take deceased to the hospital. The deceased was his relative but he did nothing to assist. On the other hand, where there are aggravating circumstances a sentence of more than 5 years imprisonment can be imposed. See S v Chinembiri HH 291-24. The accused’s culpability is that he did not act reasonably in circumstances where a reasonable person could have averted the death. However, the accused laboured under some pressures. Deceased had already expressed his intention that he was looking for him and had attacked him. There is a level to which a person can try and avoid violence, similarly a person is allowed at law to stand their ground albeit in a measured way. In R v Mpofu 1968 (2) RLR 319 the court had this to say, “a person has the same right to use force in the defence of another from a threatened danger as he has to use force in defence of himself. The onus of disproving such defence is in either case on the Crown” In the case of S v Chirwa HH66-23 the court held that deadly force is appropriate in self defence when the attacker threatens death or serious bodily injury. Buttressing the same position G. Feltoe in A Guide to the Criminal Law of Zimbabwe Third Edition 2004 at page 42 said; “If a person is faced with the terrifying prospect of an attacker who’s about to kill or gravely injure him, he will have to respond immediately with whatever weapons are at hand”. The sentence must strike a balance of the triad the accused, the offence and the society. The Court cannot over emphasize the interest of society at the expense of the accused’s circumstances and the circumstances surrounding the commission of the offence. In S v Kumire SC 63/24 the accused was found guilty of culpable homicide and the level of negligence ordinary. The deceased taunted the accused persistently about his medical condition until the accused struck and killed him. A sentence of 7 years with 4 years conditionally suspended was imposed. In S v Ndlovu HB 42/24 the deceased pursued the accused and assaulted him. The accused in defending himself struck the deceased once on the head and died. A sentence of 3 years imprisonment 2 years suspended conditionally. The remaining 1 year was suspended on condition of performance of community service. The circumstances of each case must be considered. In this case the accused struck the deceased several times after being attacked. The accused struck the deceased several times until he died.This is not a case that locates itself at the lower end of culpable homicide to warrant community service. Accordingly, the accused is sentenced to; 5 years imprisonment of which 1 year imprisonment is suspended for 3 years on condition that within that period the accused is not convicted of an offence involving violence or causing the death of another for which upon conviction he is sentenced to imprisonment without the option of a fine. National Prosecuting Authority, the State’s Legal Practitioners Matiyashe Law Chambers, the accused’s Legal Practitioners