The State v Tobias Masauso and Tembo Dimingo and Leonard Makodza

On 15 October 2014, the deceased Edson Girazi and colleagues arrived at Treasure 4 Mine near Kadoma to conduct illegal gold mining operations without the mine owner's consent. Around 01:00 hours, three security guards employed by Ex-Cop (the accused persons) arrived at the mine to secure it from illegal gold panners on behalf of the legitimate mine owner. Violence erupted when illegal gold panners pelted the security guards with stones. The guards fired warning shots. The deceased managed to sneak past the security line, got into his Nissan Serena vehicle and attempted to drive away despite orders to stop and warning shots. Security guards deflated the tyres but the deceased continued driving. When two security guards approached the vehicle, the deceased attacked them with pepper spray causing them to scream in pain. The deceased then ran from the vehicle down a hill into the darkness. The first accused, hearing the screams and sensing danger, fired a shot in the general direction of the screaming but lower than he should have. The deceased, running down the slope, was hit in the back by the shot and died. The first accused was a security guard with limited firearms training (one month, three days per week) and by his own admission had never used a firearm before and did not consider himself experienced.

• Whether the first accused was guilty of murder or culpable homicide in shooting the deceased
• Whether the second and third accused persons bore criminal liability for the death
• The appropriate degree of negligence attributable to the first accused given the circumstances
• The criminal liability of private security guards in the use of firearms
• The responsibility of employers to adequately train security guards for tasks involving firearms
• The appropriate sentence for culpable homicide committed by an inadequately trained security guard acting in the course of duty

1. First accused Tobias Masauso: Found not guilty of murder but convicted of culpable homicide. Sentenced to $1000.00 or in default of payment 6 months imprisonment, plus 2 years imprisonment wholly suspended for 5 years on condition that he does not commit an offence involving negligence during that time for which he is sentenced to imprisonment without the option of a fine. 2. Second accused Tembo Domingo: Found not guilty of murder and acquitted. 3. Third accused Leonard Makodza: Found not guilty of murder and acquitted.

The binding legal principles established are: (1) Private security guards have the same criminal culpability as ordinary citizens when using firearms and receive no special legal immunity. (2) When assessing culpable homicide involving security guards, the degree of negligence must be evaluated considering both the dangerous circumstances faced and the adequacy of the guard's training for the task. (3) Firing a warning shot at waist level in the dark, which results in death, constitutes criminal negligence sufficient for culpable homicide, even in circumstances of genuine danger and violent provocation. (4) Employers have a legal responsibility to ensure security personnel are adequately trained for tasks involving firearms; inadequate training will be considered an aggravating factor in sentencing. (5) The admitted insufficiency of firearms training by a security guard who causes death through negligent use of a firearm is an aggravating factor warranting custodial sentences (even if suspended) rather than only community service or fines.

The court made several non-binding observations: (1) Illegal gold panners are known to be violent and resistant to authority, which is a relevant contextual factor in assessing the actions of security guards. (2) While the court acknowledged mitigating factors (first offender, family responsibilities including a wife with mental illness and two children, serving as sole breadwinner, pre-trial custody of two and half months), these were insufficient to warrant a non-custodial sentence given the need to send a message about employer responsibility. (3) The court noted that while the prescribed training periods may meet regulatory requirements, employers must ensure staff are not just trained for the prescribed duration but are actually "fit for purpose" - an inadequately trained security officer using a gun is at risk of inflicting harm on others. (4) The court observed that the assignment contained definite risk elements and that illegal gold panners had indeed displayed violence, which was relevant context even though it did not excuse the negligence. (5) Community service would not send an adequate message to employers about their training responsibilities.

This case is significant in Zimbabwean criminal jurisprudence for establishing important principles regarding the criminal liability of private security guards in the use of firearms. It emphasizes that security guards are subject to the same criminal standards as ordinary citizens and cannot claim special immunity when using lethal force. Most importantly, the case establishes a precedent regarding employer responsibility: employers who deploy security guards with firearms have a duty to ensure those employees are adequately trained for the specific tasks they will undertake. The judgment sends a clear message that inadequate training of armed security personnel will be considered an aggravating factor in sentencing, even where the guard acted in the course of duty under dangerous circumstances. The case also provides guidance on assessing negligence in culpable homicide cases involving security guards, balancing the dangerous circumstances they face against the duty to exercise proper care in using lethal force.