Judgment No.

74/99
Case No. HCA 48/99

STEWART SHAW

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHEDA AND MALABA J J
BULAWAYO 4 AND 22 OCTOBER 1999

Mr Mathonsi for appellant

Mr Nyathi for respondent

Judgment

CHEDA J: On 12 January 1998 some workers clearing grass at a site for a safari camp saw
a snake. They summoned the Appellant who came to shoot the snake. The end result was a dead snake and
an injured worker.
According to the state witnesses this is how it happened. The complainant and others were
slashing grass while other workers were working on a building that was under construction. One worker
named Sense Ncube spotted a big snake. The Appellant was called. The workers stood by watching for the
snake while waiting for the Appellant. Appellant came with a gun.
According to the complainant, when Appellant came with the gun he just fired while the workers
were standing there in a form of C formation. Complainant says he could see the Appellant clearly from
where he was, and so Appellant could also see him clearly. When Appellant fired at the snake the
complainant was also hit on the shoulder and on the scapula. He said Appellant used a pellet gun.
Complainant says he fell down and Appellant must have seen that because Appellant came to him.
Appellant never gave any orders to go back and he denied running to the back of the bush to watch the
shooting of the snake. He says he was taken for treatment, but the pellets are still in his body.
Sense Ncube said he was slashing grass with the complainant. He saw a snake and called others
who were working with him. The Appellant then came with a gun. He asked where the snake was and he
was shown. He then shot it and hit the complainant on the arm. He said complainant was in front of the
snake on the eastern side. Complainant was with others, about six or seven. I should point out that
complainant also said they were six. He said complainant and others were guarding the snake in a C
formation so that it does not escape. He said he saw Appellant shooting at the snake as he was standing
near him about 3 metres away on his side. He did not hear Appellant say anything to the workers, nor did
he hear any instructions to workers to move away.
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He was able to see the other workers on the other side of the snake as it was clear. He said complainant
was hit by the first shot and Appellant saw this because complainant fell down but the snake was killed by
the second shot.
As against this evidence, the Appellant argues that the complainant was not one of the people
cutting grass. This does not help him because complainant’s knowledge of what happened is clear and ties
with what was said by Sense who actually saw the snake. Both the witness and the complainant say about
6 people were slashing grass. Both say it is Sense who saw the snake and both say the workers stood in a C
formation, and both say accused fired two shots, the first hit the complainant, and the second shot hit the
snake.
On the contrary, the Appellant’s evidence is an attempt to dispute what the two state witnesses
said. He says he has four guns and the one involved is a shot gun. It is common cause that when fired a
shot gun dispels several pellets in the direction of the shooting. He says it is Moses who was watching the
snake and there was noone else. He agrees firing two shots. Someone shouted 20 -30 metres away then he
went to investigate and found that complainant had been injured.
He says he did not know where the complainant was at the time he shot at the snake. This is
strange as it is his contention that complainant was behind the bushes in the direction of the shooting. He
says at the time of the shooting there was only Moses near him.
He says all the staff were working on the building that was being constructed. This cannot be
true. He even suggests that he had told everyone to remain at the kitchen when he went to shoot the snake
and that he had left the complainant at the office. This cannot be true in view of the evidence of the state
witnesses in which they corroborate each other.
Appellant seems to contradict himself also because having said that only Moses was present when
he shot the snake, he says someone else shouted. He was not sure who this person was and said it could be
the complainant. Later he says complainant could have been 2, 3 or 4 metres from where he shot the snake.
I do not see how that can be so without him seeing a person 2-4 metres away. His evidence is so
unreliable. He was even asked in cross examination how he could not see a person at such distance and he
only said he could not. It is clear he was untruthful.
After his evidence he called Moses who claimed to have been planting some lawn with Silas
Ncube. He talks of Silas calling him after seeing a snake. He talks of the snake climbing a tree. He says,
and I quote, “Having shot the snake we heard that someone had been injured. When we saw the injured we
showed the accused.” (underlining is mine)
The fact that he says we suggests there were more than one person there to show the Appellant the
injured person, yet Appellant insists it was only this Moses present. In answer to another question this
witness says, “We who had been asked to watch the snake were standing on the same side”. Again this
suggests that there were other persons contrary to Appellant’s evidence that only this Moses was present.
He later says he was watching the snake with Silas. This Silas is not mentioned by the Appellant.

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It later turned out that this Silas is the one also called Sense Ncube. It follows that this Silas is Sense
Ncube who gave evidence and who Appellant claims was not at the scene.
After hearing both legal practitioners we dismissed the appeal because for the above reasons we
see no merit in the appeal.

Malaba J .......................... I agree