The State v Nobert Mapope

On 26 May 2018 at Corner Helen Lane and Harold Road, Kensington, the accused, a member of the Zimbabwe Republic Police, was deployed as part of "Operation No to Illegal Mining" to arrest illegal gold panners. The accused was the leader of one group and was armed with an FN Rifle. When the team arrived at Kensington, approximately twenty gold panners carrying axes, picks, shovels and machetes ran towards the accused's direction. The accused's colleagues retreated and took cover, leaving him alone. The accused fired warning shots in the air. He then fired a fourth shot which struck Tinashe Mutema (the deceased) in the back, with the bullet exiting through the chest. The deceased died from his injuries, which were caused by a gunshot wound resulting in haemorrhagic shock, haemopheumothox, penetrating chest trauma. The accused was charged with murder under section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

• Whether the accused unlawfully caused the death of the deceased
• Whether the accused acted in self-defence as contemplated in section 253 of the Criminal Law (Codification and Reform) Act
• Whether the requirements for private defence were satisfied: unlawful attack, attack commenced or imminent, action necessary to arrest attack, and means used reasonable
• Whether the State proved the accused's guilt beyond reasonable doubt

The accused was found not guilty and acquitted.

Where an accused raises self-defence under section 253 of the Criminal Law (Codification and Reform) Act, the requirements are: (1) an unlawful attack upon the accused or third party; (2) the attack must have commenced or be imminent; (3) the action taken must be necessary to arrest the attack; and (4) the means used must be reasonable. These requirements can be satisfied even where the deceased was shot in the back if the overall evidence establishes the accused was under attack by multiple assailants with dangerous weapons and had no assistance. Where the State adduces no evidence about the actual shooting and the accused's version, despite containing lies, is substantially corroborated by other evidence and is "reasonably true in substance," the court must decide the matter on acceptance of that version and acquit if guilt is not proven beyond reasonable doubt.

The court observed that it would be "simplistic to say because he shot the now deceased at the back, he was therefore not under attack" given that the gold panners were approximately twenty in number armed with axes, machetes, picks and shovels. The court noted: "It is possible that an innocent person may put up a false story because he thinks the truth is unlikely to be sufficiently plausible" (citing S v Vera 2003(1) ZLR 668 (H)). The court acknowledged that the result "will of course be a grave injustice if the accused in fact committed this crime. But that does not justify the commission of an even more serious injustice of convicting a person without his guilt having been established beyond reasonable doubt" (citing L v S 2003(I) ALL SA 16 (SCA)).

This case illustrates the application of the statutory defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act in Zimbabwe. It demonstrates that self-defence can be established even where the deceased was shot in the back (suggesting flight rather than attack) if the overall circumstances show the accused was under imminent unlawful attack by multiple assailants with dangerous weapons. The case also reinforces the principle that an accused's lies or inconsistencies do not automatically result in conviction where the accused's version, viewed holistically, is substantially corroborated by other evidence and the State fails to prove guilt beyond reasonable doubt. The judgment emphasizes the proper application of the Difford principle and the benefit of doubt in criminal cases.