Cai Yulong v The State

The appellant, a Chinese national operating Stone Steel Mine (also known as Blue Mine) in Zhombe, Kwekwe, was convicted of murder, attempted murder and assault. On 24 May 2024, the deceased Goni Goni and other employees of the neighbouring Blackhand 10 Mine went underground to erect a barricade at the intersection of the two mines. The appellant, armed with a Norinco pistol, entered his mine shaft and encountered the workers. He shot the deceased in the thigh, causing fatal hypovolemic shock, and shot complainant John Muchawaya Bera twice (right knee and left thigh). He also allegedly struck Lovemore Mapfanya on the head. The appellant claimed he acted in self-defence and defence of property, believing the victims were illegal gold panners stealing from his mine. He stated he fired three warning shots before shooting at their legs when they allegedly advanced towards him with axes and machetes. The State's evidence, supported by multiple consistent witnesses, established that the victims were lawful employees constructing a barricade on their employer's instructions, and were fleeing when shot.

• Whether the appellant possessed the requisite intention (dolus eventualis) to commit murder and attempted murder
• Whether the court a quo erred in finding that the complainants were constructing a barricade rather than stealing gold ore
• Whether the defences of self-defence (section 253 of the Criminal Code) and defence of property (section 257) were applicable
• Whether the court a quo properly considered the Sentencing Guidelines and mitigating factors in imposing a 30-year sentence for murder

The appeal against both conviction and sentence was dismissed in its entirety. The convictions for murder (30 years' imprisonment), attempted murder (10 years with 5 suspended, concurrent with murder sentence), and assault (US$100 fine or one month imprisonment in default) were upheld.

1. Legal intention (dolus eventualis) for murder is established where an accused subjectively foresees the real risk or possibility that death may result from his conduct, however remote, and continues regardless - it is not necessary that death be foreseen as certain or even probable (applying S v Mini 1963 (3) SA 188 (A) and S v Mugwanda 2002 (1) ZLR 574 (S)). 2. Discharging a firearm at persons at close range, even targeting legs rather than vital organs, carries a real foreseeable risk of death; the accused cannot negate dolus eventualis merely by choosing a less obviously lethal target area. 3. The defences of self-defence (s 253) and defence of property (s 257) require: (a) an unlawful attack commenced or imminent; (b) that defensive conduct was necessary with no other means of escape; (c) reasonable and proportionate means; and (d) harm not grossly disproportionate to the threat. These requirements are strictly construed. 4. An accused who arms himself and seeks out alleged intruders, then uses lethal force against fleeing persons, cannot satisfy the requirements of necessity and proportionality for either self-defence or defence of property. 5. An appellate court will not interfere with a trial court's factual findings or credibility assessments unless they are so irrational that no reasonable tribunal could have reached them (applying Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)). 6. Sentencing lies pre-eminently within trial court discretion; appellate interference is warranted only where there is material misdirection, the sentence induces a sense of shock, or there is glaring disparity with appropriate sentences (applying S v Munakamwe SC121/23 and Muhomba v The State SC 57/13).

The Court noted with concern the deficiencies in the police investigation, particularly the investigating officer's failure to conduct an on-site inspection by descending into the mineshaft to verify the scene, determine the exact location of the shooting, or confirm whether a barricade existed. While this did not prevent conviction on the strength of credible witness testimony, such investigative shortcomings are undesirable and detract from the thoroughness of criminal proceedings. The Court also observed that even if the appellant's mistaken belief that his property was under threat could theoretically reduce moral culpability, this could not operate as mitigation where the trial court properly rejected the factual basis for that belief - the victims were lawful employees, not intruders, and were fleeing when shot. The judgment emphasised that the defences of self-defence and defence of property exist to prevent individuals taking the law into their own hands, not to provide immunity for disproportionate violence against perceived threats. The Court noted the value of considering circumstances including stress and fear on an accused's mind (as required by ss 253(2) and 257(2)), but held this cannot excuse objectively unreasonable conduct where safer alternatives existed.

This Zimbabwe Supreme Court judgment clarifies important principles applicable in South African criminal law regarding: (1) the test for dolus eventualis (legal intention) - that foresight of even a remote possibility of death suffices if the accused reconciles himself to that risk; (2) the strict requirements for the defences of self-defence and defence of property, particularly that there must be an imminent unlawful attack, no other means of escape, and proportionate force used; (3) appellate deference to trial court factual findings and credibility assessments, which will only be disturbed if irrational or plainly wrong; and (4) the limited grounds for appellate interference with sentencing discretion. The case demonstrates that intentionally targeting non-vital body parts with a firearm does not negate dolus eventualis where death remains a foreseeable possibility. It also confirms thatmine owners cannot take the law into their own hands by using lethal force against perceived trespassers, particularly where victims are fleeing and alternative remedies exist.