The State v Simbarashe Leonard Mupawaenda

The accused was employed by a private security company as a security guard deployed at Marange Resources diamond fields in Chiadzwa, Marange. On 3 July 2014 around 19h00, he was on night duty with a patrol team-mate (a canine handler with a patrol dog). He was armed with a 12-bore shot-gun rifle. It was a dark night with visibility good only at 5 metres, poor at 10 metres and none beyond 15 metres. They heard sounds of illegal panning activity in their area of jurisdiction and decided to approach while sending a radio message for reinforcements. Before help arrived, they came under attack from a stone-throwing mob who yelled and shouted that they would kill the accused and his work-mate. The attackers encircled them. The accused fired a warning shot to persuade the illegal panners to disperse and desist from attacking them. The dog became too timid to act, bark or engage the hostile mob. When the attacking mob persisted, he fired a second shot, which hit the deceased Farai Madenga on the head, causing injuries from which he died. The mob then dispersed.

• Whether a security guard on duty under unlawful attack can successfully raise the defence of private defence
• Whether the defence of property was available to the accused
• Whether the requirements of section 257 of the Criminal Law (Codification and Reform) Act were satisfied
• Whether the more stringent requirements of section 258 (killing in defence of property) were satisfied
• Whether the use of lethal force was reasonable and proportionate in the circumstances

The accused was found not guilty of murder and was acquitted.

Where a security guard lawfully employed to protect property is subjected to an unlawful attack by a hostile mob that threatens his life, and he has taken reasonable steps to avert the attack (including firing a warning shot), the use of lethal force may be justified under both sections 257 and 258 of the Criminal Law (Codification and Reform) Act if: (1) the unlawful attack had commenced or was imminent; (2) the accused's conduct was necessary to avert the attack; (3) the means used were reasonable in all the circumstances including poor visibility, unknown number of attackers, isolation, and failure of other defensive measures; and (4) the harm caused was not grossly disproportionate to that liable to be caused by the unlawful attack. In determining whether the stringent requirements for killing in defence of property under section 258 are satisfied, the court must take due account of the circumstances in which the accused found himself, including any stress or fear operating on his mind, and the fact that he faced a "kill or be killed" situation where attackers explicitly announced their intention to kill him.

The court observed that had the accused not taken the step he took, he may have featured in this case as the deceased rather than as the accused. The court also commented that the illegal panners approached a fenced-off mining location by night with full knowledge that they may encounter armed guards, and when they did encounter them, they chose not to flee but became aggressive and attacked the guards first. This suggests some contributory conduct by the deceased and his companions in creating the dangerous situation.

This case is significant in Zimbabwean criminal law as it clarifies the application of the defences of private defence and defence of property under sections 257 and 258 of the Criminal Law (Codification and Reform) Act, particularly in circumstances involving security guards protecting mining operations against illegal panners. The case illustrates that even where a killing occurs in defence of property, an accused can be acquitted if the stringent requirements of section 258 are met, particularly where the accused faced an imminent threat to life. It demonstrates the court's willingness to consider the totality of circumstances including poor visibility, hostile mob behavior, isolation, and the failure of non-lethal measures (warning shot, patrol dog) in assessing the reasonableness and proportionality of defensive action. The judgment reinforces that security guards have both the right to protect their employer's property and to defend themselves when under unlawful attack during the course of their duties.