6
HCC 31/25
HCCR 496/25
THE STATE
Versus
ANTHONY MUTEFARA
HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 20, 21 & 27 May 2025
Assessors: 1. Mr Kamanga
2. Dr Mashavave
Criminal Trial
E. M. Chitsiga, for the State
G. Mukanduri, for the accused
BACHI MZAWAZI J:
Facts and Evidence
This case involves the accidental discharge of a firearm resulting in the shot that killed the deceased. It is common cause from the facts and evidence adduced that there is no issue of dolus directus as the accused on a tour of duty never planned or anticipated the death of the deceased through his conduct. The tug of war between the State and the defence, given the circumstances surrounding the commission of the offence is whether or not the accused can be found guilty of murder in respect of dolus eventualis, that is, constructive intent or culpable homicide.1
It is a proved fact that the accused, a recent security guard graduate who was only two days old had been deployed at Sengy Mine Post in Kadoma. He was to relieve a colleague who was going off duty. It is not in dispute, that the deceased in the company of his two co-miners were whiling away time sitting by the security guard cabin post.
According to the unchallenged testimony of the accused, he had just assumed duty and inside the cabin when the deceased unnoticeably also entered the mini room. The deceased had entered the cabin to collect his already charged phone and to charge another as per their custom. An inverter had been placed inside the cabin but behind the door for the purpose of assisting the miners coming from the under-ground mining shafts to recharge their mobile phones. The inverter was positioned approximately about a meter adjacent to the bed which was also situated therein.
It is soon after the deceased’s entrance into the said room that a startling sound was heard leading the deceased’s colleagues to scamper away for safety. It was only after the first witness, Peter Milton regained composure and retraced his way back to the source of the explosive sound did he find the deceased lying faceup with his head protruding from the door hanging unsuspended. According to this witness’s testimony upon entry into the cabin to enquire, he then saw the accused astonished and in shock holding the gun. Both the first witness and the accused placed the deceased in a better lying position outside the cabin. The accused, who was visibly shaken was seen using his own garment to try and stabilize excessive bleeding.
It is not in dispute that the deceased suffered a gunshot wound discharged from a 303 firearm which was in the possession of the accused. Again, it is not an issue that the deceased died as a result of that gunshot wound. What is in issue is whether or not both the discharge of the firearm and the resultant fatal shooting was intentional, or the discharge was purely accidental and negligent?
In his defence the accused, who was 20 years old at the time stated that he took safety precautionary measures as soon as he was handed over the gun. He placed the gun in a safety catch or mode. Since he had just learnt that there was a bullet jammed in the barrel he emptied the gun. The first bullet fell under the bed but the second remained lodged. In his effort to retrieve the fallen bullet he placed the gun on the bed whilst bending.
He hardly noticed the entrance or presence of the deceased until he heard a loud bang. At first, he thought it came from outside as was the norm with explosives at the mine. He then realized that the gun had discharged on its own accord when he saw the smoke on the mouth of the barrel signaling recent gunfire. At the same time, he observed the deceased who was in a bending position falling backwards.
Whilst still acclimatizing to the unfolding events he then realized the magnitude and gravity of the situation when he saw the deceased bleeding profusely. He then jumped into action by trying to stop the bleeding through the application of a cloth from his own apparel.
The crux of the accused’s defence is that the bullet from the gun ricocheted from the initial target of the bed in its trajectory to the door creating a passage through the then bend deceased. Mr Mukanduri for the defence pleads to accidental discharge of the firearm tantamount to negligent discharge and culpable homicide.
Accused’s explanation of events was corroborated by the testimony of the investigating officer who evinced a wealth of experience in the use of and handling of firearms. The bullet holes she saw during her investigation of the crime scene were consistent with a ricocheting bullet. The position of the bullet hole on the bed matched that on the door and where the deceased was in respect to both the bed and the inverter.
She also attested that it was not uncommon for bullets to remain lodged in the firearm or for guns to temporarily jam and then function perfectly well. The witness stated that though the ballistic report said that the firearm was functioning at the time of its examination after the fact, it does not dispel the conclusion that it may have jammed in the interim period between the time of the offence and the time of the compilation of the report.
However, the officer emphasized that the simple safety precautionary measures to discharge a firearm outside a dwelling in an open secure placed were not observed.
The State from the evidence obtained from its witness admits that there was no eye witness. Tentatively there is no one who can say whether the accused’s version is inaccurate or implausible. However, it insists that given the nature of the accused’s job as a security guard he ought not have commenced the gun safety precaution measures in an enclosed place. Moreso when there were people in proximity just outside the cabin door. It is their argument that by embarking on such a mission, the accused ought to have reasonably seen that his actions would bring about dire consequences and death. Ms Chitsiga, for the State, thus submits that by leaving an unattended loaded gun there was reasonable foreseeability that it will or may discharge thereby causing death. She urged the court that the only plausible verdict is that of murder with legal intention.
Issues
The issue is whether or not the accused can be found guilty of murder with constructive intent or culpable homicide?
Analysis
It goes without saying that it is the preserve of the State to prove beyond a reasonable doubt that the accused person had the legal intention to kill the deceased. It is not vice versa. No such onus lies on the accused whose story if probable must be believed.2 This has always been the position of the law since time immemorial as captioned in the locus classicus case of R v Difford 1937 AD 370 at 373 that,
“No onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.” See, S v Mapfumo and Others 1983 (1) ZLR 250 (SC)
As is apparent, in the absence of direct evidence from an independent eye witness the State case hinges on circumstantial evidence. This circumstantial evidence is deduced from the accused’s only version of events. In so far as, the evidence is concerned, for a conviction on murder with constructive intent to be inferred, there must be a cumulation of proved facts that point exclusively to the guilt of the accused.
The law on circumstantial evidence as spelt out in several cases amongst them R v Blom 1939 AD 188, S v Muyanga H-H-79-13 and recycled in Amos v The State SC82/22 needs no elaboration. The totality of the proved facts must point exclusively to the guilt of the accused. Addressing the issue of a finding on murder with constructive intent, the Supreme court in the Amos case supra, had this to say,
‘The law however, requires that in the circumstances of this case, for the accused to have been found guilty of murder, with constructive intent, death due to assault ought to have been the only reasonable inference to be drawn from the proven facts.’ See Tapiwa Madya v The State SC88/23.
In casu, in the face of corroborated evidence of a ricocheted bullet, it is difficult to conclude or draw an inference that the automatic discharge of the gun can be attributed to reasonable foreseeability or a realization that such an unforeseen occurrence will eventuate. The manner in which the events unfolded portrays mere carelessness rather than recklessness. The accused’s action of taking safety precautionary measures in a confined space borders on negligence rather than out of realization of risk or possibility that death may ensue out of his conduct of leaving an unsupervised semi loaded gun for a short stint of time.
Had it been that in the process of cleaning the gun by checking whether it was loaded or not, the accidental shot came as a result of aiming at a person or persons, objects or animals then it would be construed differently. Further, if the accused had in any manner laid his hand on the trigger or was in contact with the trigger either advertently or inadvertently then the complexion of his culpability will change.3
In this case, what is evident which can be easily drawn from the manner the gunshot discharged is negligence. The accused was negligent in more than one way. A reasonable person in his stead a trained security guard ought to have observed the basic rules of holding firearms. These are as stated by the police witness that every firearm must be considered as loaded upon sight. Secondly, before contact safety precautionary measures must be taken first and foremost. This is to eliminate the danger of the firearm falling, therefore, automatically discharging bullets in the process of falling or when it hits the floor/ground. Lastly, that such precaution measures must be taken in an empty outdoor space after ensuring that there will not be any danger or risk to animals, objects and humans.
In a recent Supreme Court decision, Spencer Sithole v The State SC14/24, MAVHANGIRA JA cited the dicta S v Humphreys 2015 (1) SA 491 (SCA) at para 13 which states:
“… like any other fact, subjective foresight can be proved by inference. Moreover, common sense dictates that the process of inferential reasoning may start out from the premise that, in accordance with common human experience, the possibility of the consequences that ensued would have been obvious to any person of normal intelligence. The next logical step would then be to ask whether, in the light of all the facts and circumstances of this case, there is any reason to think that the appellant would not have shared this foresight, derived from common human experience, with other members of the general population.” 25. As aptly stated by the court a quo at p 14 of its judgment: “…
S v Mugwanda v The State 2002 (1) ZLR 574 details the distinction between dolus directus and dolus eventualis. Distinguishably, from recklessness which is an active ingredient of dolus eventualis, the accused conversely, in the circumstances could not be said to have realized that the temporary placement of a gun he was cleaning would result in the chain of events that then unfolded.
There was no subjective, volitional mental state in regard to the foreseen possibility which characterises dolus eventualis. The State fell short of discharging its onus by establishing that the accused reconciled himself with the consequences of his conduct which he subjectively foresaw. See, S v Ngubane 1985 (3) SA 677 (A) at 685A-H
Against the above analysis we safely find that the accused did not foresee that his conduct would result in the death of the deceased and persisted regardless. In stead his conduct falls squarely under s49(1)(a) that he failed to realize that his conduct of momentarily leaving a semi-loaded firearm unattended which he carelessly cleansed in an enclosed space would have resulted in the automatic discharge and ricocheting of the bullet which inevitably would injure or kill anything in its path. A realization, any reasonable trained security guard or any of the people in the security forces trained in the use of and handling of firearms would have had.
Disposition
For a conviction on circumstantial evidence to be sustained, there must be proved facts pointing exclusively to the guilt of the accused. The State has not laid out such facts to prove that the accused was reckless or proved the reckless discharge of a firearm. There is no evidence to conclude that he neither subjectively nor objectively foresaw his conduct resulting in the death of the deceased. Nonetheless, from the proved facts a reasonable inference of negligent discharge of a firearm can be drawn. Whilst not disputing the accused’s version that this was an accidental discharge we are convinced that his conduct was negligent.
Firstly, all firearms are lethal weapons. They must be regarded as fully loaded before physical contact. Safety precautionary measures should be taken to ensure that any bullets lodged in the firearm has been safely discharged. The safety measures should be taken in an empty space and in the air nonetheless a first safety check must be done so that the process does not pose danger to animals, humans or property.
The accused was negligent, he breached the safety precaution measures when he attended the gun in an enclosed room. He was also negligent in laying the firearm on the bed when he was fully aware that it still had a bullet lodged inside. Further, he was negligent in trying to pick or retrieve a bullet from under the bed before dislodging the stuck bullet.
We are not persuaded by his argument that he was not familiar with firearms as he had minimal training. We do not believe his employer was foolish enough to entrust such a novice with such an onerous task of being in possession or in charge of such a dangerous weapon without adequate training. Whilst some of his actions may be considered as highly mitigatory he cannot escape from the claws of the law. He was negligent. He negligently failed to realize, as a reasonable person in his shoes ought to, that death might result from his cumulative conduct as detailed above.
However, his degree of negligence and blameworthiness is on the lower side given the unique circumstances surrounding the commission of this offence. Most importantly, the fact that there was no animosity, conflict nor motive.
The accused, is thus found not guilty of murder but of the competent verdict of culpable homicide as initially pleaded.
Sentencing Judgment
The facts are as borne in the main judgment and need no regurgitation. The accused stands convicted of culpable homicide. In sentencing the accused person, the submissions made both in aggravation and mitigation underpinned by those from the victim impact statement and sentencing report have been counter balanced. The objectives of sentencing as outlined in S.I 146/23 have also been taken on board against the bedrock of the statutory penalty as provided for in the Criminal Law Code, s49 and the presumptive sentence in the said guidelines.
Sight cannot, however, be lost that precious life was lost. Sanctity of life can never be overemphasized. The victim’s family has been left with no breadwinner. They have been visited with countless financial challenges. What is even more aggravatory is that the accused was a security guard. Minimal training or not he should have been alive to the fact that guns are lethal weapons and not toys.
In general, the degree of care or duty of care of security personnel and those in the security forces is expected to be very high due to the intensive training they undergo before being entrusted with such dangerous arms. Ordinarily, the degree of blameworthiness is high for such specialized firearms handlers as it is expected that they are fully conversant with or acquainted with all the rules regarding the use and handling of firearms.
Nevertheless, in contradistinction, the accused was only 20 years old at the time of the offence. He told the court that he was a recent graduate trainee with minimal experience. In fact, he was only taught how to discharge bullets as a precautionary measure shortly before assuming duty. His youthfulness, lack of experience, general naivety militates in favor of lessening his degree of negligence, and his moral blameworthiness as already concluded.
In coming up with an appropriate sentence we find the dicta by BAKER J in the case of S v Van der Westhuizen to be of guidance. The learned judge observed that;
“… Justice must be done, but it must be done with compassion and humanity, not by rule of thumb, and that a sentence must be assessed not callously, arbitrarily or vindictively, but with due regard to the weaknesses of human beings and their propensity for succumbing to temptation … But it must also be borne in mind that the consideration of mercy must not be allowed to lead to the condonation or minimization of serious crimes”.
In Norman Sibanda v The State SC 39 /14, it was held that ordinarily if the actions of the youthful offender are consistent with immaturity, that will constitute a very strong mitigatory factor. In the accused’s favor, again are his actions after the event, he was just as traumatized as he was shocked. He rendered assistance to the injured deceased.
As per the victim impact statement he was deeply psychologically affected by the offence. In court he demonstrated remorse by plea bargaining for a lesser charge although the State, being dominus litis, turned it down. That action showed that he was contrite and remorseful. His family assisted with both financial and emotional support to the family of the victim. They even entered into a reparation agreement to be fulfilled in June this year.
In addition, the manner in which this tragic incident took place is distinguishable from other culpable homicide cases involving firearms. In most cases the accused would have aimed or dangled a firearm targeting a human being’s head or torso resulting in an accidental shooting. Nor did he come into contact with the trigger of the firearm as in some cases where a finding of accidental discharge and culpable homicide has been made.
The placing of the gun on the bed was negligent, yes, as already analyzed, this was purely an accident, the accused never envisaged that the mere act of briefly lying down the gun and his search of a fallen bullet would trigger the chain of events. The offence already ascribed to him is that of negligently failing to realize that death could result from such action, a realization a reasonable person in his shoes would not have failed to make. Accidents do happen to anyone, they are called accidents because they are unforeseen and, in most cases, unpreventable. However, such accidents where negligence is an element are punishable by the law. See Magasela v The State (1257/2023) [2025] ZASCA 08 (31 January 2025).
The court is mindful that punishment is not meant to break but to mould. The accused is not only a first offender but a 21-year-old youth. The fact that life was lost at his hands is a life sentence that will constantly hang over his head.
In the case of Melody Anna Marufu HB194/17, a case of negligent discharge of a firearm, in the absence of a homicide, under the Firearms Act, the accused who had initially been sentenced to a custodial sentence was released on a fine by the Appellate court. In that case the accused, a police officer, had taken over duty from a colleague. She was handed over two firearms. She proceeded to enter the charge office, filled with her shift members, to log in without first attending to the firearm precautionary measures outside the building. The firearm which she had placed on the counter discharged on its own volition after she had been warned of the possibility of such an occurrence and directed to first observe the safety measures.
Though fortunately, in the Marufu case above, no one was injured or killed, the case serves to illustrate that carelessness in observing the safety measures in the handling of firearms may result in accidental firearm discharge.
Accordingly, treating each case as revolving on its own merits, we sentence the accused to 36 months imprisonment. 12 months are suspended for 2 years on condition the accused does not commit any offences involving violence or murder, of which if convicted, he will be imprisoned without an option of a fine.
The remaining 24 months is wholly suspended on condition accused person performs 820 hours of community service at Mkoba Clinic under the supervision of the person in charge. Community service starts from 8am to 4pm from Monday to Friday with the necessary lunch and tea breaks. Leave of absence must be sought from the person in charge. Such leave shall not be counted as service performed.
National Prosecuting Authority, legal practitioners for the State
Zimudzi and Associates, accused’s legal practitioners.
1 Sv Mugwanda v The State 2002 (1) ZLR 574
2 Zulman JA in 2000 (1) SACR
3 Magasela v The State (1257/2023) [2025] ZASCA 08 (31 January 2025)