Kenneth Matimura v The State

On 29 November 2016 at Darwendale Dam, Nyabira, the appellant, a security guard employed at Irvodale Fishing Co-operative, was patrolling in a canoe. He observed the complainant (Allen Govha) and his colleague Benedict Tonderai Simuperi in another canoe. Suspecting them of stealing fishing nets, the appellant confronted them. An altercation ensued and the complainant and his companion attempted to flee. The appellant fired a shotgun at the complainant's canoe from approximately 8-10 metres distance, striking the complainant twice in the buttocks and back, causing the canoe to capsize. The complainant sustained multiple small wounds to his right-sided back region and right buttock with associated abdominal tenderness. The medical report indicated the injuries were serious and caused by severe force. The appellant claimed he fired warning shots and aimed at the canoe to disable it, alleging the occupants had attacked him with a catapult and stolen his fishing nets. The complainant and his companion denied stealing nets, denied any catapult attack, and denied that warning shots were fired.

• Whether the Trial Court misdirected itself in finding the appellant was reckless when he claimed to have fired warning shots
• Whether the Trial Court properly considered the lethality of a shotgun at a range of 60-70 metres
• Whether the Trial Court properly assessed the credibility of witnesses, particularly whether Allen Govha's evidence was fabricated
• Whether the appellant had the necessary mens rea (reckless intent) for attempted murder

The appeal was dismissed in its entirety. The conviction for attempted murder was upheld. The sentence of 5 years imprisonment (with 3 years suspended on condition of good behaviour and 2 years suspended on condition of community service) remained in force.

Firing a shotgun at close range (8-10 metres) at persons in a canoe who pose no danger constitutes recklessness for the purposes of attempted murder. Where an accused uses a dangerous weapon in circumstances where he must have foreseen the real possibility of killing the victim but proceeded with his action regardless, the element of dolus eventualis is satisfied. The test for recklessness in attempted murder requires consideration of: (1) the nature of the weapon used; (2) the distance between perpetrator and victim; (3) the vulnerability of the victim's position; and (4) whether the victim posed any danger to the accused. A shotgun can cause death or serious injury at a range of up to 70 metres, and this lethality must be taken into account when assessing whether the accused foresaw the consequences of his actions.

The Court observed that the allegation of a catapult attack by the complainant or his companion was a "red herring" that did not change the complexion of the case. The Court noted that even if warning shots had been fired (which was disputed), this would not negate the recklessness of subsequently firing directly at a canoe with human occupants. The Court commented that the appellant's stated intention to damage the canoe to prevent the occupants from fleeing demonstrated a lack of consideration for the risk of killing the occupants. The Court also observed that the defence witness Solomon Manatsa did not give evidence from an objective viewpoint and appeared to favour the appellant's version. The judgment references similar cases (The State v Anesu Chikerema HH 317/17 and State v Pheneas Sigauke HH 745/17) dealing with recklessness in the context of use of dangerous weapons.

This case reinforces the application of the doctrine of dolus eventualis (reckless intent) in attempted murder cases in Zimbabwean criminal law. It establishes that using a dangerous weapon such as a shotgun at close range against vulnerable persons (in a canoe on water) who pose no threat constitutes reckless conduct sufficient for attempted murder. The case emphasizes that a perpetrator need not have a direct intention to kill; it is sufficient that they foresaw the real possibility of death but proceeded regardless. The judgment also demonstrates the importance of credibility assessment in criminal trials and the requirement for thorough cross-examination of all material witnesses. The case illustrates that self-help measures (shooting to prevent suspects from fleeing) are not justified when the circumstances do not warrant such extreme action.