The State v Masimba Mazendame

On 1 April 2021 at approximately 0300 hours, the accused was employed as a security guard at No. 14 Hudson Road, Lundi Park, Gweru. While on duty, stones were thrown into the premises and the guard dogs became scared. The accused saw multiple intruders (3-4 people) armed with weapons scaling the durawall. The area had experienced a spate of armed robberies and intrusions. The accused, while seated, fired what he claimed was a warning shot upwards but in the direction of the intruders to scare and disperse them. The shot fatally struck deceased Clearance Mhanga on the forehead, neck and shoulders. CCTV footage showed a person exiting over the durawall. The accused discovered the deceased's body on an adjacent yard. No weapons were found at the scene the following morning, though other intruders had fled.

• Whether the accused intentionally murdered the deceased
• Whether the accused's actions were wrongful and negligent
• Whether the accused acted in self-defence under section 253 of the Criminal Law Codification and Reform Act
• Whether the accused acted in defence of property under sections 257-258 of the Criminal Law Codification and Reform Act
• Whether the means used by the accused to avert the unlawful attack were reasonable in the circumstances

The accused was found Not Guilty of murder and was acquitted.

Where an accused security guard fires what he claims is a warning shot at armed intruders unlawfully attacking property and persons at night, and the State fails to lead ballistic expert evidence to contradict the accused's account of how the firearm was discharged, the court cannot make adverse findings against the accused on the manner of firing. A security guard who reasonably believes an unlawful attack by multiple armed intruders is imminent or has commenced, and who uses force that he believes is necessary to avert the attack in circumstances where he cannot flee without abandoning his protective duty, satisfies the requirements of self-defence under section 253 and defence of property under sections 257-258 of the Criminal Law Codification and Reform Act, provided the harm caused was not grossly disproportionate and no innocent third party was harmed.

The court observed that it takes judicial notice of the spate of armed robberies in Zimbabwe in recent years. The court commented that it would be unfair to take an 'armchair approach' and second-guess the actions of a security guard facing armed intruders at 3am when the guard's own life could be on the line and he had a duty to act. The court noted that section 259 (which provides a partial defence where means used were unreasonable) was not applicable because the State had not proven the means used were unreasonable. The court remarked on the accused's demeanor, noting he appeared truthful and was not 'bent on lying at all costs.' The court stated this was 'one unfortunate case where the loss of a life cannot be attributed to both intent and negligence on the accused's part.'

This case is significant in Zimbabwean criminal law (relevant to South African jurisprudence given similar statutory frameworks) for its interpretation of self-defence and defence of property provisions in the Criminal Law Codification and Reform Act. It establishes that: (1) Security guards facing armed intruders have a duty to protect persons and property and cannot simply flee; (2) The absence of ballistic expert evidence creates a fatal gap in the State's case where the manner of shooting is disputed; (3) Courts will consider the context of prevalent armed robberies in assessing reasonableness of defensive actions; (4) An accused's version cannot be rejected merely because they are accused - the State must rebut it beyond reasonable doubt; (5) The assessment of whether defensive force was reasonable must account for the guard's perspective at 3am facing multiple armed intruders, not from an 'armchair approach'; (6) Minor inconsistencies or assumptions in testimony do not necessarily establish deliberate lies.