By Innocent Muchini
(Bachelor of Laws, Master of Laws-Constitutional and Human Rights Law) – Legal Practitioner, Notary Public and Conveyancer
‘Is an individual who kills another person guilty of the offence of Murder if the killing is committed in order to defend another person?’
This question certainly exercised the minds of several Zimbabweans who follow topical issues following the horrific incident that happened in the Harare suburb of Chadcombe during the first few days of December 2021.
The facts are generally in the public domain (or can at least be easily ascertainable in the various available media) and as such will not be fully repeated for the purposes of this article, save to state only the few pertinent issues below;
Factual background
- a) A family, consisting of a pregnant woman, her brother a young man, her 18year old son, a 12year old son and a 7year daughter, was besieged by some 5 heavily armed men during the evening apparently intending to commit a robbery;
- b) The father of the house was not present at the time of unlawful entry by the gang
- c) The 18year old boy managed to surreptiously call his father alerting him of the unlawful entry
- d) The father managed to rush back to his home and gunned down 3 of the robbers, whilst two fled.
Pursuant to this incident, there was divided opinion within the general public on whether the man who saved his family from imminent peril, by gunning down the robbers, should be prosecuted for murder or not. A brief review of our Constitution, the Criminal Law (Codification and Reform) Act and the cases of R v Patel 1959 (3) SA 121 (A) and State versus Banana 1994 (2) ZLR 27 (S) should assist in enlightening members of the public on what our law provides for in cases of this nature in the most simple and concise manner as is practically possible. The article is not meant to be an academic treatise or a professional legal opinion and should not be treated as such.
The article will highlight the applicable statutory, constitutional and common law rules dealing with such a situation.
The Constitution of Zimbabwe, 2013.
The right to life is provided for in section 48 of the Constitution. A cursory reading of the Constitution shows that this right may only be limited* in very limited circumstances listed in
section 48 itself. The current Constitution therefore does not provide for exceptional situations under which the right to life can be limited, other than those provided for under section 48 (2) unlike the old Constitution which clearly provided under section 12 (2) that a person was not to be regarded as deprived of his right to life if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case for the defence of a person against violence.
The Criminal Law (Codification and Reform) Act
Part XIII of the Criminal Law Code expressly provides for a complete defence to a charge, such as one for Murder or Culpable Homicide (or any other offence committed whilst in defence of another), of defence of person subject to certain strict requirements; viz
- a) The unlawful attack had commenced or was imminent
- b) The person’s conduct was necessary to avert the unlawful attack and he or she believed on reasonable grounds that his or her conduct was necessary to avert the unlawful attack and
- c) The means he or she used to avert the unlawful attack were reasonable in all circumstances; and
- d) Any harm or injury caused by his or her conduct –
- i) Was caused to the attacker and not to any innocent third party; and
- ii) Was not grossly disproportionate to that liable to be caused by the unlawful attack.
All the requirements above have to be fulfilled before this defence can be available to a person who kills in defence of another person. In considering whether the requirements have been satisfied the court takes due account of the circumstances in which the person who killed in defence of another person found himself or herself, including any knowledge or capability he or she may have had and any stress or fear that may have been operating on his or her mind.
In other words, the court does not take an armchair approach from the comfortable and refined confines of the courtroom. It endeavors to get into the mind and shoes of the person at the time he or she killed the aggressor in defence of a third person.
CASE LAW
There are several cases in our body of case law which have dealt with this defence. The two cases discussed below have been chosen for because they raised the same question that was posed at the beginning of this article; ‘Is an individual who kills another person guilty of the offence of Murder if the killing is committed in order to defend another person?’
R v Patel 1959 (3) SA 121 (A)
The facts
The accused person a young Indian had shot dead a man who was attacking his brother. The deceased had taken hold of the accused person’s brother and was busy assaulting him with a hammer. At least one blow had landed-it had been aimed at the brother’s head, but he crouched
and it struck him on the back. The accused thought his brother was in imminent danger and he drew out his revolver and fired from a distance of about 5metres. The bullet went the deceased’s heart and he died.
The issue for determination
The issue for determination by the court was killing in defence of another.
The law considered
The South African court considered that a person has a right to use force in the defence of another from a threatened danger, as he would have to defend himself, if he were the person threatened. The general principles that the court laid down appear to have been extensively borrowed (copied and pasted) in to our own Criminal Law Code under section 253, stated above.
The court also concluded that in considering the matter, it must beware of being an arm-chair critic, and must take into account the exigencies of the occasion.
“Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons. Allowance must be made for the circumstance of their position”
The court held that the accused was suddenly confronted by an emergency not of his creating. He had to act quickly. Delay on his part might well have proved fatal to his brother.
The conclusion of the court
The court concluded that the prosecution had failed to prove beyond reasonable doubt that in doing this the accused person had exceeded the bounds of justifiable killing.
The accused person was entitled to an acquittal
S v Banana 1994 (2) ZLR 271 (s)
The facts
This case involved a killing in defence of person and property. The accused person was a trained serviceman. He shot at and killed an armed and determined housebreaker at night. He had been asleep with his girlfriend when a number of intruders broke into his house and stolen his property. The intruders had then attempted to break down his bedroom door.
The accused person shot at the lower part of the bedroom door but the intruders did not flee but went round the house breaking a window intending to enter into the house. The accused saw two of the intruders holding knives by his bedroom window. He then fired two shots through the window. One of the intruders was hit and he died soon afterwards.
Accused person was charged with murder but convicted of culpable homicide***in the High Court.
The issue for determination
On appeal in the Supreme court the issue was Defence of person and property
The law considered
The need to avoid an armchair approach in cases of this nature was reiterated by the Supreme Court of Zimbabwe. It held that in deciding whether the measures taken by a person in defence of himself and his property wewre reasonably justifiable in the circumstances, the court must avoid taking an armchair approach and must instead take into account the predicament faced by the person under attack.
The conclusion of the court
The accused person who had been convicted of Culpable Homicide** by a lower court was acquitted on appeal by the Supreme court
CONCLUSION
What is clear from the above cases is that a person who kills in defence of another is not guilty of murder or culpable homicide if he meets the requirements as listed in the Criminal Law Code and the various cases that have come before the courts.
It is however not every killing in defence of a third person that bis excusable. The court will seriously interrogate the facts and circumstances of each case. It is only where killing is unavoidable and reasonably justifiable that an acquittal will ensue.
Killing even in defence of another should only be resorted to where no other viable option presents itself.
Public policy is against vigilantism and the taking of the law in to one’s hands. But, after all has been said and done, the court will not make a pedestrian approach and ignore the fact that a decision had to be made, in the heat of the moment, as it were.
It will not make an arm chair approach whilst comfortable ensconced in the refined atmosphere of a court room.