The State v Onias Mahewu

The accused was employed as a ranger at Umzingwane farm and was on patrol with his colleague Wonder Hlabathi at approximately 0240 hours. The accused was armed with a shotgun. During the patrol, they encountered dogs that started barking. The first state witness (Hlabathi) ran towards the bush when a male adult (the deceased) emerged and dashed towards him wielding a spear. Hlabathi screamed for help. In response to the screams and the imminent attack on his colleague, the accused fired one shot from his shotgun. The deceased fell down still holding the spear and was later certified dead at Beitbridge district hospital. The post mortem report confirmed death resulted from brain damage, skull fracture, and multiple gunshot wounds (the ballistic expert explained that one shot from a shotgun releases several pellets which can cause multiple wounds). The deceased was suspected to be a poacher and trespasser on the farm.

• Whether the accused could be discharged at the close of the State's case in terms of section 198(3) of the Criminal Procedure and Evidence Act
• Whether the accused acted in lawful self-defence (defence of another person) as contemplated in section 253 of the Criminal Law Codification and Reform Act
• Whether an unlawful attack had commenced or was imminent
• Whether the accused's conduct was necessary to avert the attack and he could not otherwise escape
• Whether the means used to avert the attack were reasonable in the circumstances
• Whether the harm caused was proportionate to the harm liable to be caused by the unlawful attack

The accused was found not guilty and acquitted. The application for discharge at the close of the State's case succeeded.

For a defence of another person to succeed as a complete defence under section 253 of the Criminal Law Codification and Reform Act [Chapter 9:53], the following elements must be established: (1) an unlawful attack must have commenced or been imminent against the accused or another person; (2) the accused's defensive conduct must have been necessary to avert the unlawful attack and the accused could not otherwise escape; (3) the means used to avert the attack must be reasonable in the circumstances; (4) the harm caused must be to the attacker (not an innocent third party) and must not be grossly disproportionate to the harm liable to be caused by the unlawful attack. Where the State fails to adduce evidence capable of rebutting a defence of self-defence/defence of another person, discharge at the close of the State's case under section 198(3) of the Criminal Procedure and Evidence Act is appropriate. The use of a firearm in response to an imminent attack with an equally lethal weapon (spear at close range) in circumstances where no alternative means of defence exist is proportionate and reasonable.

The court made observations about the context of the incident which, while not strictly necessary for the legal determination, influenced its assessment of reasonableness: the accused and first witness were performing their lawful duties as rangers engaged in anti-poaching activities; the deceased was most probably a poacher and trespasser; the incident occurred at approximately 0300 hours in the middle of the night; and the deceased was not only a trespasser but was the aggressor who reacted violently to lawful instructions. The court also commented favorably on the State counsel's concession, noting it was 'proper' - suggesting that prosecutors have a professional duty to objectively assess their case and concede where evidence is insufficient. The court's discussion of the ballistic evidence (that a single shotgun discharge releases multiple pellets which can cause multiple wounds) also serves as useful technical context for understanding similar cases involving shotgun injuries.

This case provides important guidance on the application of section 253 of the Criminal Law Codification and Reform Act [Chapter 9:53] concerning defence of another person in Zimbabwean criminal law. It demonstrates the court's approach to analyzing each element of the self-defence/defence of another requirements systematically. The case is significant for clarifying that: (1) defence of another person is treated similarly to self-defence; (2) the proportionality assessment considers the lethality of both the threat (spear at close range) and the response (shotgun); (3) contextual factors such as duty performance, time of day, and the aggressor's status (trespasser/poacher) are relevant considerations; (4) the State bears the burden of disproving self-defence once raised, and failure to do so warrants discharge at close of State case under section 198(3) of the Criminal Procedure and Evidence Act. The case also illustrates proper application of the discharge procedure and the State's duty to assess the strength of its case objectively.