Constitutional Rights re: Arrest, Detention and Security iro Constitutional Obligations of Security Forces & Personnel

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate ...

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution.

THE ORDER OF THE COURT

On 28 September 2009, after reading documents filed of record and hearing argument by counsel for the applicant and for the respondent, the Court made the following order:

“The Court unanimously concludes that the State, through its agents, violated the applicant's constitutional rights protected under sections 13(1), 15(1) and 18(1) of the Constitution of Zimbabwe to the extent entitling the applicant to a permanent stay of criminal prosecution associated with the above violations.

Accordingly, it is ordered that the criminal prosecution against the applicant, arising from the facts set out in proceedings in the Magistrates Court Harare, in the case of the State v Manuel Chinanzvavana & Eight Ors, case number 8801-5/08, is stayed permanently.

The reasons for this order will be furnished in due course. The question of the costs of the application will be dealt with in the judgment.”

THE FACTS

The reasons for the order are now given.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate.

Meaning of section 15(1) of the Constitution

The first point taken, on behalf of the applicant, was that the treatment to which she was subjected by State security agents, prior to the charge being laid on her, constituted a contravention of section 15(1) of the Constitution.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”

In this case, the only relevant concepts are “torture”; “inhuman treatment” and “degrading treatment”. They make up the three key elements of the protection of a person's dignity and physical integrity from the prohibited treatment at the hands of public officials.

Section 15(1) of the Constitution enshrines one of the most fundamental values in a democratic society. Chahal v United Kingdom [1996] 23 EHRR 413…,. It is an absolute prohibition. It is because of the importance of the values it protects that the rules by which the prohibition imposes the obligations on the State are peremptory in effect. The most conspicuous consequence of this quality is that the principle at issue cannot be derogated from by the State - even in a State of public emergency: see section 25 of the Constitution.

The provision is subject only to the exercise by Parliament, when properly constituted, of the power under section 52 of the Constitution to amend, add to, or repeal any provision of the Constitution upon strict compliance with the procedure prescribed for the purpose: Mike Campbell (Pvt) Ltd v Ministry of Lands 2008 (1) ZLR 17 (S).

It was in the exercise of the power conferred on it by section 52 of the Constitution, that Parliament, by means of Act No.30 of 1990 (Amendment No.11) and Act No.9 of 1993 (Amendment No.13) provided that six specific instances of treatment of individuals by the State shall not be held to be in contravention of section 15(1) of the Constitution. These are:

(i) Treatment to prevent the escape from custody of a person who has been lawfully detained (section 15(2));

(ii) Moderate corporal punishment inflicted upon a person under the age of eighteen years by his parent or guardian or by someone in loco parentis (section 15(3)(a));

(iii) Moderate corporal punishment inflicted on a male person under the age of eighteen years in execution of the judgment or order of a court (section 15(3)(b));

(iv) Execution of a sentence of death in the manner prescribed in section 315(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (section 15(4));

(v) Delay in the execution of a sentence of death (section 15(5)); and

(vi) Delay in the execution of any sentence imposed by a competent court (section 15(6)).

The qualities of absoluteness in the sense of being an unconditional prohibition and non-derogability articulate the notion that the prohibition is one of the most fundamental standards of a democratic society. They are also designed to ensure that the prohibition produces a deterrent effect in that it signals, in advance, to all public officials and private individuals, that it is an absolute value from which nobody must derogate.

The fact that torture, inhuman and degrading treatment is prohibited by a peremptory provision serves to render null and void any act authorising such conduct.

The prohibition protects the dignity and physical integrity of every person regardless of his or her conduct.
No exceptional circumstance, such as the seriousness of the crime the person is suspected of having committed, or the danger he or she is believed to pose to national security, can justify infliction of torture, or inhuman or degrading treatment.

There cannot be a value in our society over which there is so clear a consensus as the prohibition of torture, inhuman, and degrading treatment of a person in the custody of a public official.

That such a treatment should never form part of the techniques of investigation of crimes employed by law enforcement agents is a restatement of the principle that the law, which it is their duty to enforce, requires that only fair and humane treatment ought to be applied to a person under criminal investigation.

There is a distinction intended to be made, under section 15(1) of the Constitution, between torture on the one hand and inhuman or degrading treatment on the other.

The distinction between the notion of torture and the other two concepts lies principally in the intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim, intentionally, and for a specific purpose. Torture is an aggravated and deliberate form of inhuman or degrading treatment. What constitutes torture, or inhuman or degrading treatment depends on the circumstances of each case.

The definition of torture often adopted by courts, as a minimum standard by which a determination of the question whether torture has been committed or not, is that provided under Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (hereinafter referred to as “the UN Convention on Torture”).

Article 1(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) provides that:

“…, torture means, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not indicate pain or suffering arising only from, inherent in, or incidental to lawful sanction.”

The definition of torture, provided in Article (1)(1) of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), is consistent with the interpretation by the Court in its case law of the concept as used in section 15(1) of the Constitution.

It is important to note that, in terms of the definition, the torture must be inflicted for the purpose of obtaining information or a confession. This is the mischief at which the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is aimed.

Inhuman treatment, is treatment which, when applied or inflicted on a person intentionally or with pre-meditation, causes, if not actual bodily injury, at least intense physical or mental suffering to the person subjected thereto and also leads to acute psychiatric disturbance during interrogation: Ireland v United Kingdom [1978] 2 EHRR 167…,.

Degrading treatment, is treatment which, when applied, to or inflicted on a person, humiliates or debases him or her showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking the person's moral and physical resistance.

The relevant notions in the definition of degrading treatment are those of humiliation and debasement. The suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate or fair treatment: Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

It follows, from the definition of the relevant concepts, that not every treatment which causes some discomfort to the person in detention violates section 15(1) of the Constitution; otherwise no one could be arrested, detained, and interrogated in the investigation of crime. The treatment must reach the minimum level of severity before it constitutes a breach of the absolute prohibition under the section.

The assessment of the minimum level of severity is relative.

The question whether or not the requisite threshold of breach of the fundamental right has been reached in a particular case is determined by the consideration of such factors as the nature and context of the treatment; manner and method of its execution, as well as the duration of the treatment; its physical and mental effects; and, in some cases, the age, sex and state of health of the victim: Ireland v United Kingdom [1978] 2 EHRR 167…,.; S v Ncube & Ors 1987 (2) ZLR 246 (S)…,.; Soering v United Kingdom [1989] 11 EHRR 439…,.; Woods v Commissioner of Prisons & Anor 2003 (2) ZLR 421 (S)…,.

APPLICATION OF SECTION 15(1)

Applying the principles of the law on what constitutes a contravention of section 15(1) of the Constitution to the facts, the Court finds a violation by the State, through its agents, of the applicant's fundamental right not to be subjected to torture, or to inhuman or degrading treatment.

The reasons for the decision are these:

The repeated beatings on the soles of the applicant's feet with a piece of a hosepipe and a metal object using severe force, on each of the two occasions she was under interrogation, constitute torture.

Repeated beating of the soles of feet with a blunt instrument is a serious form of torture called “falanga”: AMRIS K, “Long Term Consequences of Falanga Torture”, Torture Vol.19 Number 1 IRCT 2009.

Forcing the applicant to kneel for a long time, on mounds of gravel, whilst being interrogated, falls within the meaning of torture.

The treatment to which she was subjected was premeditated.

The severe pain and suffering she was forced to endure was intentionally inflicted. It was in aid of the interrogation the purpose of which was the extraction, from her, of information on the assistance her organisation was suspected of having given to Ricardo Hwasheni to enable him to undergo military training outside the country.

The prolonged periods of solitary confinement, incommunicado, on the occasions she was not being interrogated, constitutes inhuman and degrading treatment; S v Masitere 1990 (2) ZLR 289 (S)…,.

It is important to note, however, that solitary confinement is not to be deemed to be contrary to the prohibition under section 15(1) of the Constitution. It must be in conjunction with other conditions, for example, prolongation and imposition on a person who has not yet been convicted of an offence. The severity of the specific measure, its duration, the objectives pursued by it, the cumulative effect of any further conditions imposed as well as the effects on the individual's physical and mental well-being, are all factors which have to be taken into account in the assessment of the question whether a specific instance of solitary confinement is in violation of section 15(1) of the Constitution.

It was inhuman treatment to keep the applicant blindfolded each time she was out of solitary confinement and not being interrogated.

The treatment was intentionally applied and caused the applicant mental suffering.

She was also subjected to inhuman and degrading treatment when she was blind-folded and driven, at night, to an undisclosed destination under threat of unspecified action.

The treatment was intended to induce in her fear and anguish. She said she feared for her life when the motor vehicle was stopped in the middle of the night at the place she could not see. She heard the sound of people shuffling about as if preparing to execute her.

The feelings of fear and anguish, generated in her by the treatment, had the intended effect of debasing her.

The purpose of the prohibition of acts violative of section 15(1) of the Constitution is to protect human dignity and physical integrity. Any recourse to physical force against a person in the custody of a public official, which is not rendered strictly necessary by his or her conduct, diminishes his or her dignity and implicates a violation of the prohibition.

FIRST GROUND

Effect of Pre-charge Abduction and Violation of Section 15(1) on Criminal Prosecution

The grounds on which the relief sought were premised on the court making a finding that the applicant was kidnapped from home and subjected to ill treatment in the form of torture, inhuman and degrading treatment by State security agents prior to being charged with the criminal offence by the public prosecutor.

The general effect of the contention advanced on the first ground was that the Court should not countenance a prosecution of an accused person for a criminal offence in circumstances in which he or she was kidnapped and subjected to torture, or inhuman or degrading treatment by public officials exercising executive authority prior to the charge being brought against him or her.

The argument was that the institution of criminal proceedings, in the circumstances, would be an abuse of court process.

The question for determination is whether ill-treatment, in breach of section 15(1) of the Constitution, prior to the charge being brought against the victim, taints the subsequent decisions to lay the charge and institute criminal prosecution against him or her regardless of the question whether the requirements of section 13(2)(e) of the Constitution have been complied with or not.

The decision of the Court on this point is that ill-treatment, per se, has no effect on the validity of the decisions to charge the victim with a criminal offence and institute prosecution proceedings against him or her.

It is the use of the fruits of ill-treatment which may affect the validity of the decisions depending on compliance or non-compliance, by the public prosecutor, with the requirements of permissible deprivation of personal liberty under section 13(2)(e) of the Constitution.

The reasons for the decision are these:

The requirements which a public prosecutor has to bear in mind and comply with to make a valid decision to charge an accused person with a criminal offence and institute a criminal prosecution on the charge are prescribed by section 13(1) of the Constitution.

The section recognises that every person has a fundamental right to personal liberty.

It then makes provision for the protection of the right against interference by the State by declaring that no person shall be deprived of personal liberty. Recognising the principle that the right to personal liberty is not an absolute right, the section goes on to specify cases listed as exceptions to the prohibition in which deprivation of personal liberty is permissible upon strict compliance with the prescribed requirements.

The requirements of permissible deprivation of personal liberty, in the case of a person suspected of crime, are in section 13(2)(e) of the Constitution. They constitute the standard by which the validity of the decision by the public prosecutor to charge the accused person with the criminal offence, and institute criminal proceedings, is to be measured.

The effect of prohibition of arbitrary deprivation of personal liberty is the promotion of lawful arrest or detention and prosecution of persons suspected of having committed crimes. It is the deprivation of personal liberty in connection with the criminal justice process that is relevant to the determination of the issues raised.

Once a measure, such as a criminal prosecution, is based on a decision to charge the accused person with the criminal offence which complies with the requirements of permissible deprivation of personal liberty it is a lawful measure. It cannot be a subject of an order of permanent stay on the ground that the accused person was kidnapped and subjected to torture, or inhuman or degrading treatment before the charge was brought against him or her. The ill-treatment to which the accused person would have been subjected would have taken place when he or she was in a state of lawful deprivation of personal liberty. It is usually inflicted after the person has been deprived of personal liberty by arrest and detention.

Section 13(1) of the Constitution provides that:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in subsection (2).

(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorized by law –

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence.”

Section 13(4)(b) provides that:

“(4) Any person who is arrested or detained –

(a)…,.

(b) Upon reasonable suspicion of having committed, or being about to commit, a criminal offence;
and who is not released shall be brought, without undue delay, before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to the trial.”

Failure to comply with the requirements for a valid decision to charge the accused person with a criminal offence, and the institution of criminal prosecution proceedings against him or her, implicates a violation of the principle of legality or rule of law enshrined by section 18(1) of the Constitution.

The principle of legality requires that every decision or act of a public official which affects the rights or interests of an individual must be in accordance with an existing law otherwise it violates the rights of the individual concerned.

The requirements for permissible deprivation of personal liberty are part of the protection of that right. Compliance with the requirements is consistent with the principle of the rule of law. In that way, the public prosecutor and the Court are prevented from acting arbitrarily.

Section 18(1) provides that:

“(1) Subject to the provisions of this Constitution every person is entitled to the protection of the law.

“(1(a)) Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law.”

The provisions of sections 13(1) and 15(1) of the Constitution protect two separate but related fundamental human rights. One right is not constitutive of the other. They are autonomous and under protective requirements peculiar to their nature and ambit. That means that the rights may be violated independently of each other.

The infliction of torture or inhuman or degrading treatment on an accused person affects his dignity and physical integrity. It does not in itself affect his or her criminal liability. The other right protects the individual from arbitrary arrest, detention and prosecution by agents of the State.

The same person may be a victim of ill-treatment by law enforcement agents whilst at the same time he or she is a villain having committed a criminal offence against another person. The applicability of a particular constitutional provision should turn on the reasons it was included in the Constitution and the evils it was designed to eliminate.

The existence of reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged and prosecuted is critical to the determination of the validity of the decisions to charge him or her with the criminal offence and institute criminal prosecution on the charge.

A charge is an official act by which notification is given by the competent authority of an allegation that the accused person has committed a criminal offence. In Attorney General v Blumears & Anor 1991 (1) ZLR 118 (S)…, GUBBAY CJ said:

“The standard for the deprivation of personal liberty, under section 13(2)(e) of the Constitution, are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed, or was about to commit, a criminal offence. This standard represents a necessary accommodation between the individual's fundamental right to the protection of his personal liberty and the State's duty to control crime.”

It is the existence, or absence, of reasonable suspicion of the accused person having committed the criminal offence he or she is charged with which provides an answer to the question whether pre-charge ill treatment of an accused person had anything to do with the institution of the criminal prosecution.

The purpose of instituting criminal proceedings against an accused person, on reasonable suspicion of having committed the criminal offence with which he or she is charged, is to prove the circumstance of his or her guilt. It is also to give effect to the law which proscribes the conduct he or she is charged with as a crime.

The decision to charge the accused person with the criminal offence and prosecute the crime would be based on the evidence of acts he or she would be suspected of having committed before he or she was subjected to ill-treatment by law enforcement agents. The prosecution would be directly connected with the crime.

If each time an accused person was subjected to torture, or inhuman or degrading treatment prior to being charged with a criminal offence, the Court was obliged to order a permanent stay of the criminal prosecution, the requirements of permissible deprivation of personal liberty, which form the standard for the validity of the decision by the public prosecutor to institute the criminal proceedings against the accused person, would be reduced to mere words. It would implicate the principle of legality which requires the Court to uphold conduct which is in accordance with law.

The availability of the procedure under section 13(2)(e) of the Constitution means that where the criminal prosecution meets all the requirements of permissible deprivation of the accused person of liberty, it cannot be impugned notwithstanding the fact that the accused person was kidnapped and subjected to torture or inhuman or degrading treatment before the charge was brought against him or her.

Section 24(4) of the Constitution provides a remedy to the individual whose fundamental right has been violated.

No right to personal liberty would have been violated in relation to the accused person by the institution of criminal proceedings in the circumstances.

An illegal arrest or detention, without more, has never been viewed as a bar to subsequent prosecution for an offence the accused person is reasonably suspected, on untainted evidence, of having committed.

That does not mean that the accused person has no remedy for the pre-charge contravention of fundamental rights.

Kidnapping a person is a criminal offence.

Compensation, under section 13(5) of the Constitution, is payable to a person who is unlawfully arrested or detained. It is also an appropriate remedy for the redress of a contravention of a fundamental right available to the Court in the exercise of the wide discretionary power under section 24(4) of the Constitution.

A finding that the decision by a public prosecutor, to charge an accused person with a criminal offence, was based on reasonable suspicion of his or her having committed the offence effectively means that the criminal prosecution is lawful. It means that there is evidence on which proof of the commission of the acts defined as the crime with which the accused person is charged would be based at the trial. It also means that the wrongful conduct of ill-treating the accused person prior to being charged with the criminal offence had nothing to do with the decisions to institute and conduct the criminal prosecution; S v Harington 1988 (2) ZLR 344 (S); Blanchard & Ors v Minister of Justice 1999 (2) ZLR 24 (S); Mthembu v The State 2008 SCA 51…,.

As a matter of law and fact it is clear that where reasonable suspicion of the accused person having committed a criminal offence existed at the time the public prosecutor charged him or her with the offence in question and commenced criminal prosecution proceedings, the prosecution must be taken to have been properly instituted regardless of the fact that the accused person was subjected to torture, or inhuman or degrading treatment prior to the charge being brought against him or her. The charge, and prosecution, would be a product of the consideration, by the public prosecutor, of evidence on the conduct of alleged wrong doing by the accused person.

There is nothing in the Constitution which requires the Court to permit an accused person, reasonably suspected of a criminal offence and properly charged, to escape prosecution because he or she was subjected to torture or inhuman or degrading treatment prior to the charge being brought against him or her.

The Constitution does not guarantee protection against prosecution to an accused person reasonably suspected of having committed a criminal offence on account of having been subjected to torture, or inhuman or degrading treatment before the charge was laid on him or her.

Giving effect to the proposition advanced on behalf of the applicant would violate the constitutional principle of proportionality.

The principle requires that a fair balance be struck between the interests of the individual, in the protection of his or her fundamental rights and freedoms, and the interests of the public, in having those reasonably suspected of having committed criminal offences tried, and, if convicted, punished according to law.

Acting in the manner suggested by the applicant would mean that the purpose of criminal law is to protect the interests of a person suspected of crime at the expense of the victim and society.

That would be tantamount to providing a guarantee of immunity from prosecution to a person reasonably suspected of having committed a criminal offence in every case in which proof is produced that he or she was kidnapped and subjected to torture or inhuman or degrading treatment by agents of the State prior to being charged with a criminal offence. The victims of crime would be denied the right to the protection of the law.

Justice demands, however, that each man and woman be given what is due by his or her conduct.

It would also mean that one person who fell into the hands of law enforcement agents, who decided to break the law and maltreat him or her, would escape prosecution whilst another person who fell into the hands of law abiding law enforcement agents would not. That would be despite the fact that they were both reasonably suspected of having committed the criminal offences with which they were charged. Each would have known that his or her act was criminal. He or she would have committed the act before being placed in the custody of law enforcement agents.

Where there is no direct connection between the fruits of the torture or inhuman or degrading treatment to which the accused was subjected and the institution of the criminal prosecution, justification for an order of permanent stay of the criminal proceedings cannot be found in the pre-charge ill-treatment of the accused person. If the order were made it would be on the ground that there was no reasonable suspicion of the accused person having committed the offence with which he or she was charged.

In urging the first ground on the Court, counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A).

It is necessary to briefly look at the circumstances in which the decision was made to see whether the principles relied upon in that case are applicable to the facts of this case.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53.

There is no doubt that the contention urged on the Court was animated by the principles enunciated in S v Ebrahim 1991 (2) SA 553 (A).

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms.
They do not provide a basis for challenging the validity of decisions by a public prosecutor to charge a person who is resident in the area of jurisdiction of the court with a criminal offence which it has jurisdiction to hear.

The principles are not an answer to the question whether a court, whose duty is to protect fundamental human rights, can decline jurisdiction in a case in which the accused person complains that his or her fundamental rights have been contravened by the institution of criminal prosecution proceedings after he had been kidnapped and subjected to torture, or inhuman or degrading treatment by agents of the State within the area of jurisdiction of the court.

They are not applicable to facts of a case the consideration of which has to take into account the existence, or absence, of reasonable suspicion, by the public prosecutor, of the accused person having committed the criminal offence with which he or she has been charged.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A) cannot be transposed and applied to facts of cases which do not raise for determination questions of breach of boundaries of criminal law jurisdiction.

Different principles apply in the determination of the issues raised by the facts of this case.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty.

Needless to say the last two principles would not form part of the law applicable to the facts of this case.

The analogy was inappropriate.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

Deriving from the cases of foreign abduction the proposition that in every case in which the accused person was subjected to torture, or inhuman, or degrading treatment before being charged with the crime the Court is obliged to order a permanent stay of the criminal prosecution was an ingenious argument which was unhelpful in the determination of the issues.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

The argument that a criminal prosecution following a pre-charge illegal arrest, detention and infliction of torture or inhuman or degrading treatment constituted abuse of process requiring a stay of proceedings would have to contend with the requirements of section13(2)(e) of the Constitution and show the fundamental right or freedom guaranteed by the Constitution that has been violated by the institution of the criminal prosecution in those circumstances.

It is not necessary to consider the argument in this case.

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

THE SECOND GROUNDEffect of Pre-charge Abduction and Violation of section 15(1) on Criminal ProsecutionThe second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction ...

THE SECOND GROUND

Effect of Pre-charge Abduction and Violation of section 15(1) on Criminal Prosecution

The second ground on which the validity of the decision to institute the criminal prosecution was challenged was that the prosecution was unlawful because it was based on information or evidence obtained from the applicant by infliction of torture, inhuman and degrading treatment.

In the raising of the issue of the wrongful conduct of public officers antecedent to the charge being brought against the accused person, and its connection with the prosecution proceedings instituted, was the suggestion that the responsibility of the State was engaged in occasioning a violation of the accused person's fundamental right to personal liberty.

In such a case, there had to be produced clear evidence of a direct connection between the antecedent breach of the fundamental right of the accused not to be subjected to torture, or inhuman or degrading treatment and the decision to charge and prosecute him or her. The institution of the criminal prosecution had to be shown to have been a direct consequence of the precedent wrongful conduct of the State. In other words, it had to be a product of the outrageous conduct of pre-charge ill-treatment of the accused person by law enforcement agents.

According to the applicant, the use, by the public prosecutor, of information obtained from her by infliction of the treatment prohibited by section 15(1) of the Constitution, is evidence of the existence of the requisite direct connection between antecedent violation of the fundamental right and the criminal prosecution. The criminal prosecution was an outgrowth or fruit of the torture, inhuman, and degrading treatment to which she was subjected.

The contention advanced on behalf of the applicant, on the second ground, was premised upon an interpretation of the provisions of section 15(1) of the Constitution which recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus.

(iii) What effect does a finding that the onus has been discharged have on the question of the contravention of the fundamental rights of the accused person protected under sections 13(1); 15(1) and 18(1) of the Constitution.

Section 15(1) of the Constitution and Evidence Obtained by Torture

The Court takes the first point for determination.

Its decision on the point is that section 15(1) of the Constitution contains the rule by which it imposes on the State, through its agents, the obligation not to admit or use, in any legal proceedings, information or evidence obtained from an accused person or defendant, or any third party, by torture, or inhuman or degrading treatment.

The reasons for the decision are these:

Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) (UN Convention on Torture) requires State parties to ensure “that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”

Article 15 of the African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa and Article 16 of the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba on 27 August to 7 September 1990, are important.

They recognise the existence of an obligation on the public prosecutors not to use or rely on information, or evidence, obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment to make decisions in the exercise of prosecutorial powers.

The relevance of the reference to the provisions of Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) is not in the substance of the obligation imposed on State parties.

It is on the principle of interpretation involved.

Of importance to the determination of the question before the Court, is the recognition and acceptance of the principle that the rules in Article 15 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987) and the United Nations Guidelines on the Role of Prosecutors are based on the interpretation of Article 5 of the Universal Declaration of Human Rights (1948).

Article 5 of the Universal Declaration of Human Rights (1948) prohibits, in absolute and non-derogable terms, infliction of torture, inhuman or degrading treatment or punishment on any person.

The African Commission Guidelines on the Rights to a Fair Trial and Legal Assistance in Africa are based on the interpretation of the relevant provisions of the African Charter on Human and People's Rights (1981).

Article 5 of the African Charter on Human and People's Rights (1981) prohibits torture, inhuman and degrading treatment or punishment of any person.

The principle of interpretation which emerges is that the fact that a stand-alone rule has been used to denote the meaning of a primary provision does not prevent a court interpreting the meaning of a primary provision in similar language as covering the matters explicitly dealt with in the rule if the meaning of the primary provision has not been explained by a similar rule.

The principle under consideration was applied by the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439.

That Court held, on the interpretation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (“the ECHR”), that the prohibition by the Article was the basis for the rule against admission or use of information or evidence established to have been obtained or in respect to which there were substantial grounds for believing that it was obtained from the defendant, or a third party, by infliction of torture, inhuman or degrading treatment.

Considering the fact that Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (ECHR) did not spell out in specific terms, as did Article 3 of the United Nations Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment (1987), that no State “shall extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture,” the European Court of Human Rights, at para 88 of the judgment in Soering v United Kingdom (1989) 11 EHRR 439, said:

“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.”

The obligation on the State, through its agents, not to admit or use, in criminal proceedings, information or evidence obtained from an accused person, or any third party, by infliction of torture, inhuman or degrading treatment is not explicitly set out by a separate provision in the Constitution. It would be contrary to the object and purpose of the prohibition, under section 15(1) of the Constitution, to allow admission or use of such information or evidence in any legal proceedings.

A proper interpretation of section 15(1) of the Constitution, which takes into account the purpose and broadness of the language underlying the importance of the fundamental value protected, compels the Court to conclude that the obligation on the State not to admit or use information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment in any legal proceedings attaches to the prohibition of such treatment by section 15(1) of the Constitution.

The obligation is inherent in the general terms of the section. It enjoys with the general prohibition the same qualities of being absolute and non-derogable.

The condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.

The obligation is an exception to the general rule of evidence enacted by section 48(1) of the Civil Evidence Act [Chapter 8:01]]. That rule is to the effect that evidence of violation of a fundamental right or freedom is admissible in legal proceedings unless its admission would bring the administration of justice into disrepute: Paradza v Chirwa & Ors NNO 2005 (2) ZLR 94 (S)…,.; A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…,.

At various stages of the whole process of proceedings by which the State deals with persons suspected of crime who are in the custody of public officers, the Constitution imposes duties for the protection of the fundamental rights of the suspect.

The primary duty is on the law enforcement agents not to abuse executive authority in the investigation of crime by torturing or treating suspects in an inhuman or degrading manner to extract information or confessions to be used against them in legal proceedings anticipated to follow the ill treatment.

If the duty fails to achieve its intended purpose at this stage, the law imposes the duty on public prosecutors not to admit or use information or evidence obtained from an accused person suspected of having committed a criminal offence, or any third party, by torture, inhuman or degrading treatment when making prosecutorial decisions.

If the duty fails at this stage, the law imposes the duty on judicial officers. Eventually, it lies with the Court to intervene, through the exercise of its original jurisdiction, to enforce or secure the enforcement of fundamental rights.

The rationale for the exclusionary rule is the protection of any person suspected of a crime, who is in the custody of a public officer, from torturous, or inhumane or debasing invasions of his or her dignity and physical integrity. Its object is to ensure that criminal prosecutions which are a direct consequence of the pre-trial illegality violative of fundamental rights of an accused person to freedom from torture, inhuman and degrading treatment are not used to give legitimacy to such conduct.

The rule has nothing to do with the fair determination of the guilt or innocence of the accused person.

Where there is independent evidence, which has been obtained lawfully, and on which reasonable suspicion of the accused person having committed the criminal offence with which he or she is charged is founded, an order of permanent stay of a criminal prosecution is not justified.

The rule represents a device designed to deter disregard for constitutional prohibitions and give substance to constitutionally protected fundamental rights.

The exclusionary rule, as a remedy for the enforcement of the protection of fundamental rights under the Constitution, is not intended to immunise an accused person from criminal prosecution for any action he or she is reasonably suspected of having committed which is provable at the trial by independent evidence lawfully obtained.

Information or evidence obtained from an accused person, or any third party, by torture, or inhuman or degrading treatment, if admitted or used in legal proceedings, would reduce section 15(1) of the Constitution to a mere form of words.

As JACKSON J put it, in the dissenting opinion in Korematsu v United States (1944) 323 US 214…, “once judicial approval is given to such conduct it lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

In People (Attorney-General) v O'Brien (1965) IR 142 KINGSMILL MOORE J, of the Supreme Court of Ireland, said that:

“To countenance the use of evidence extracted or discovered by gross personal violence would…, involve the State in moral defilement.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from a report by MR ALVARO GIL-ROBLES, the Council of Europe Commissioner for Human Rights on his visit to the United Kingdom in November 2004 (8 June 2005 Comm. DH 2005) where he said:

“Torture is torture whoever does it; judicial proceedings are judicial proceedings, whatever their purpose - the former can never be admissible in the latter.”

Giving as a reason for holding, in S v Nkomo 1989 (3) ZLR 117 (S), that a court was under an obligation not to admit or use, in any proceedings, evidence of objects pointed out as part of confessions extracted from an accused person by torture McNALLY JA…, said:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from that torture, because the effect is to encourage torture.”

In A & Ors v Secretary for State for Home Affairs [2005] UKHL 71…, LORD BINGHAM OF CORNHILL quotes from the work on “The United Nations Convention Against Torture” (1988) where BURGERS and DANELIUS suggest…, that:

“…, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”

Lastly, in Mthembu v The State 2008 SCA 51 the South African Supreme Court of Appeal ruled that the admission of evidence obtained through the use of torture would compromise the integrity of the judicial process and bring the administration of justice into disrepute.

The reason given is that torture is barbaric, illegal and inhuman and is one of the most serious of human rights violations. That court applied the exclusionary rule against the admission or use of information or evidence obtained by torture in legal proceedings as an exception to the general rule contained in section 35(5) of the Constitution of South Africa.

The section provides that:

“Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render that trial unfair or otherwise be detrimental to the administration of justice.”

It is clear that the rationale for the exclusionary rule against the admission or use of information or evidence obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment, as contained in section 15(1) of the Constitution, is founded on the absolute obligation imposed on the State.

It is also founded on the revulsion which attaches to the source of such information or evidence, coupled with its offensiveness to civilized values, and its degrading effect on the administration of justice.

The rule applies even when the evidence is reliable and necessary to secure the conviction of an accused person facing serious charges.

The reliability, or probative value, of the information or evidence is irrelevant because its admissibility is prohibited in absolute and peremptory terms.

It is vital, in a society governed by the rule of law, that persons in the custody of public officials should not be subjected to ill-treatment of the level of severity prohibited by section 15(1) of the Constitution.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment. It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

The applicant discharged the onus on her.

She established, by oral and affidavit evidence, that in bringing the charge of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] against her, and initiating the prosecution proceedings, the public prosecutor relied solely on information on the commission of the alleged criminal acts obtained from her, and a third party, by torture, inhuman and degrading treatment.

There was an inextricable link between the ill-treatment and the criminal prosecution.

No evidence was placed before the Court, by the respondent, to show that the decisions by the public prosecutor were based on independent evidence of the crime which was lawfully obtained.

It is important to emphasize the fact that the ordering of the exclusion of evidence obtained by torture or inhuman or degrading treatment assumes, implicitly, that the remedy does not extend to barring the prosecution based on evidence wholly untainted by the misconduct of the law enforcement agents.

It is also important to point out that where the allegations by the accused are contested by the State, it is the court before which the allegations are first made, or the trial court, which must hear the parties and decide question of facts.

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

Its decision on this point is that, the effect of the finding that the public prosecutor relied on information or evidence of the commission of the alleged criminal acts obtained from the applicant by torture, inhuman and degrading treatment in deciding to charge her with, and prosecute her for the criminal offence, is that there was a breach of sections 15(1) and 13(1) of the Constitution.

The breach of section 13(1) of the Constitution lies not in the use of torture, inhuman and degrading treatment to obtain the information or evidence of the crime from the applicant. That is a breach of section 15(1) of the Constitution.

The violation of section 13(1) of the Constitution lies in the use of, or reliance, by the public prosecutor, on the information or evidence obtained by torture, inhuman and degrading treatment for the purposes of making the prosecutorial decisions.

Had the public prosecutor rejected the information or evidence of the crime obtained from the applicant by torture, inhuman and degrading treatment, there would have been a violation of section 15(1) of the Constitution but no breach of section13(1) - provided the criminal prosecution was supported by a reasonable suspicion of her having committed the criminal offence with which she was charged.

The reason is that the criminal prosecution would be a proceeding for the proof, beyond reasonable doubt, of the guilt of the accused person of the crime with which he or she is charged, based on no more or less evidence of the criminal acts than was available at the time of their commission.

The criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution.

The absolute and non-derogable fundamental right of the applicant, not to have information or evidence of the crime obtained from her, or any third party, by torture, or inhuman or degrading treatment used or relied upon by the public prosecutor in making the prosecutorial decisions to charge her with the criminal offence, and institute the criminal prosecution, was contravened.

There was also a violation of the applicant's fundamental right to the protection of the law guaranteed by section 18(1) of the Constitution.

By acting in the manner he did, the public prosecutor failed to act in accordance with the requirements of the protection of the fundamental rights prescribed by sections 15(1) and 13(1) of the Constitution.

He acted in breach of the principle of the rule of law.

It is clear from the facts that, at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment, during interrogation, to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged.

The effect of the operation of the exclusionary rule is that the whole conduct of the State security agents, in kidnapping and detaining the applicant, and subjecting her to torture, inhuman and degrading treatment, was a violation of the fundamental rights guaranteed to her by section 13(1), 15(1) and 18(1) of the Constitution.

It also shows that the criminal prosecution was a direct consequence of the violation of section 15(1) of the Constitution thereby engaging the responsibility of the State in the contravention of sections 13(1) and 18(1) of the Constitution.

In so far as the applicant suggested that she should not be prosecuted because her presence in court followed her unlawful arrest or kidnapping and ill-treatment by State security agents, she could not claim immunity from prosecution on those grounds alone because her body is not a suppressible fruit and the illegality of her detention and treatment could not deprive the Government of the opportunity to prosecute her and prove her guilt on independent evidence wholly untainted by the misconduct of law enforcement agents; United States v Crews 445 US 463 (1980)…,; Key v Attorney General & Anor 1996 (4) SA 187 (CC)…,.

COSTS

The Court takes the question of costs for determination.

Its decision on this point is that there be no order as to costs. The reasons for the decision are these:

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom.

An order of permanent stay of the criminal prosecution was considered by the Court to be the appropriate remedy for the redress of the violation of the applicant's fundamental rights. The violation would otherwise have continued: In re Mlambo 1991 (2) ZLR 339 (S)…,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

Costs are in the discretion of the Court.

It is permissible, in cases of this nature, to order that costs incurred should follow the event: Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (S).

Nonetheless, a constitutional question was raised with regard to which the answer was not self-evident.

The question whether section 15(1) of the Constitution imposes an absolute and non-derogable obligation on the State, through its agents, not to admit or use information or evidence of the crime obtained from an accused person, or defendant, by infliction on him or her, or any third party, of torture, or inhuman or degrading treatment had not been raised and exhaustively determined by the Court before.

The opportunity arose for the Court to clarify the law on the fundamental right of a person accused of a crime not to have information, or evidence, obtained from him or her by infliction of torture, or inhuman or degrading treatment admitted or used against him or her in any legal proceedings.

The legal question had to be clarified not only for the benefit of accused persons in similar circumstances. It has been clarified for the benefit of public prosecutors and judicial officers.

The victor is therefore not the applicant but the administration of justice.

The respondent did not challenge the correctness of the factual basis of the constitutional question. He properly took the view that the resolution of the legal question was in the public interest. The Court considers that the respondent should not be penalised by an order of costs.

There will be no order as to costs.

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

In terms of section 219 of the Constitution of Zimbabwe the police have, amongst other duties, the responsibility of maintaining law and order and protecting and securing the lives and property of the people.

View Appeal
CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

BRANDIES J observed, in a dissenting opinion in Olmstead v United States 277 US 438 (1928)…, that the Government should be “the potent, the omnipresent teacher. For good or for ill it teaches the whole people by its example.”

HH118-15 : MARIA SJAMBOK and BEAUTY CHIRAU vs TRUST CHINYAMA and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: MATHONSI J

As to why Central Intelligence Organisation (CIO) members think they should use their office to intimidate law-abiding citizens and to be a law unto themselves is just about one mystery which is difficult to fathom. There is a pressing need for the authorities to reign in these people and remind them that they cannot act with impunity in ...

HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O.
Ruled By: TAKUVA J

It goes without saying that the first respondent, as the Commander of the Police Service, is duty-bound to ensure that rights of all members are protected. Whenever it appears that these rights are infringed he should take corrective measures to rectify the anomaly.

HHB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

The accused persons are facing a charge of murder in that upon or about the 6th and 7th day of March 2011, and at Zimbabwe Republic Police, Sauerstown, Bulawayo, in the province of Bulawayo, Accused 1 and 2 did wrongfully, unlawfully and intentionally kill and murder Samson Ncube, a male adult in his lifetime there being.

The facts, as captured in the summary of the State, are as follows:

Both accused persons are police officers residing and working at Sauerstown Police Station. The deceased, one Samson Ncube, and four of his friends, were arrested and detained at Sauerstown Police Station for malicious damage to property on Saturday the 5th day of March 2011. The two accused persons were then assigned this case for further investigations.

During investigations, the two accused persons took turns to assault the deceased with a fan belt and a baton stick, causing the deceased to confess to the charge of malicious damage to property. Subsequently, on 8 March 2011, the deceased was taken to court where he was remanded to the 11th of March 2011 in order to allow him time to look for money to restitute the complainant. The deceased died on 10 March at his family residence, Number 4 Churchil Crescent, Richmond, Bulawayo. The body of the deceased was conveyed to United Bulawayo Hospital for post mortem examination and the results showed that the deceased died from:

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

Both accused persons pleaded not guilty to the murder charge.

Accused 1 denied assaulting the deceased with a fan belt or a baton stick as alleged. He stated that he does not know what killed the deceased as he never inflicted the injuries that culminated in the death of the deceased as indicated in the postmortem report.

The second accused denied being part of the investigating team involved in the deceased's case. She also denied assaulting the deceased but admitted being on standby at the police station on the 6th of March 2011.

The Issues

The following are the issues that fall for determination:

1. Whether or not the deceased was assaulted whilst in police custody?

2. If so, who is or are, the assailants?

3. Whether or not there exists a nexus between the assault and the deceased's death?

4. Whether or not the accused persons intended to kill the deceased?

The Evidence

The State led evidence from six (6) witnesses.

Anderson Phiri, who is the deceased's step-father, gave evidence that is largely common cause. He told the court that, on 6 March 2011, he received information that the deceased had been detained at Sauerstown Police Station on allegations that he had damaged someone's motor vehicle. On 8 March 2011, he arrived home in the evening and found the deceased already in bed. When he spoke to the deceased about his arrest and detention, the latter indicated that they would discuss the matter the following day. The witness retired to bed and the following morning he informed Israel (the deceased's brother) that the deceased had been released. Later that morning he saw the deceased and Israel talking to each other and he left to sell his wares at nearby farms. On 10 March 2011 he saw the deceased lying in the garden. He noticed that the deceased was dead and he notified the police who took the body to the mortuary.

This witness was aged 83 years at the time he gave evidence. He got confused when it came to the sequence of events and days.

However, under cross-examination, he said he saw black marks on the deceased's wrists up to the elbow and on both thighs as if some tar had been put on him. He said the deceased told him that he had been tortured. On further examination of the deceased's body the witness said he saw some bloody froth on the mouth and that the deceased was bleeding from the back of the head.

The witness, who is now self employed said he did Standard Four in Mozambique a long time ago. He then came to Zimbabwe where he worked at Zimplough until he retired. He is now self-employed repairing scotch-carts in the neighbouring farms.

The next witness was the deceased's older brother, one Israel Ncube, whose evidence is basically that on 5 March 2011, at approximately 8:30pm, he arrived home from work and was informed that the deceased had been arrested on allegations of damaging Saungweme's car. On 8 March 2011, he learnt of the deceased's release from his wife, and, early in the morning on 9 March 2011, the deceased arrived at the witness' home.

The deceased told the witness that he was assaulted by the police using a “fan belt” all over his body. The deceased told the witness that he had been assaulted from head to toe. When asked about the offence of malicious damage to property, the deceased said he had promised to pay since he had committed the offence when he was drunk. The deceased said his body was sore and very painful from the assault.

Although the witness spoke to the deceased for approximately 30–40 minutes he did not closely examine him as he thought the assault was minor.

When it was put to him, in cross examination, that anything could have happened to the deceased between the time he saw him and the time he died, the witness denied that proposition saying the deceased was always at home during that time as he failed to do a piece job he was supposed to do. The witness said during that period, the deceased was not happy at all. The witness maintained that the deceased did not leave home from the time he spoke to him on Wednesday until his death on Thursday and that the deceased did not tell him that he had been forced to drink anything or that he had been electrocuted. None of his friends visited him during that period.

The third witness was Norman Saungweme (Saungweme) whose evidence is largely common cause. He narrated how, on 5 March 2011, his car was damaged by the deceased while driving along Falls Road in Bulawayo. According to him, the deceased threw two stones at the car. One of them hit the car near the rear right door. He made efforts to have the deceased arrested, but, when he next met his group the deceased was not amongst them. As he was driving around he met his neighbour's employee who told him that the young men he had described were staying at Castle Arms and he went to the police to make a report. Whilst there, he saw one of the young men who had been brought in on a different charge. He asked this young man for the name of the person who had stoned his car and was told that it was “Thembi”. He was accompanied by two police officers to arrest the culprits. When it dawned on them that they were all going to be arrested, they went to the deceased's room and told the witness and the police that he was the culprit. The police then arrested all five (5) of them and took them to the police station. The witness was told to return on Monday.

On Sunday evening, around 6pm, parents of the young men visited the witness in the company of his neighbour. They said they had come to apologise, but, at the same time, indicated that their children were being assaulted whilst in police custody. The witness agreed to have them released and they went to the police station where they were told to come on a Monday. He returned on Monday and he was shown all the suspects but the police said some would be released while others would go to court. The rest were released except the deceased and one Sikhumbuzo Magagula.

The first accused told him to meet them at court the following day.

At court, the deceased was given time to look for money to compensate the witness for the damages he had caused on his car. The deceased was remanded to a Friday and the witness was told to return on that day. He did, but did not see anyone. Later, he learnt that a warrant for the deceased's arrest had been issued after the deceased failed to appear in court. In the afternoon, he received a message on his cellphone to the effect that the deceased had died.

Under cross-examination by counsel for Accused 1 he said the deceased was walking barefoot at court and was limping. He said he tried to withdraw the charge twice i.e. on Sunday and Monday but the police, especially Accused 1, would have none of it, insisting that the deceased would be taken to court. When asked why he did not pursue his intention to withdraw the charge at court, the witness said he did not do so because he felt that the deceased was now safe.

The State called Thembinkosi Shoko next. His testimony was that he knew the deceased as his friend and they were staying together at Wingate (Castle Arms) Bulawayo. They had been drinking beer at Spar Supermarket. He was drunk. On 5 March 2011 he was walking home with his friends, who included the deceased, who was walking some distance behind. He heard as if there was a struggle or fight. He heard voices. Saungweme drove to where the witness and his friends were and informed them that the deceased had “stoned” his motor vehicle.

Later that evening, at about 22:00 hours, the witness and his friends, including the deceased, were arrested and detained at Sauerstown Police Station. The next morning (Sunday 6 March 2011) they were taken into an office where they were assaulted with a “fan belt” and button sticks by the two accused persons. The witness said it was actually a whip made of very hard and strong rubber.

The deceased admitted the charge and was taken to court.

He said he knows the accused persons as “Moyo and Mavis”, the former as the investigating officer based at Sauerstown. As regards Accused 2, he said he knew her as one of those who assaulted them and that he was told by “someone while chatting.” He further told the court that he picked up the name “Mavis” when police officers were “chatting amongst themselves using first names.”

The witness said they were assaulted “severely” and that if an identification parade had been conducted he would have been able to identify her.

He told the court that although it was known, at the time of their arrest, that the deceased was the culprit the accused persons assaulted them until the deceased admitted committing the offence. He said there were bicycles in the room and they were ordered to place their heads underneath these bicycles whilst they were assaulted on their buttocks and on the soles of their feet.

Asked where he picked the name Mavis from, the witness could not say apart from saying it was not in this room where they were assaulted.

He said they were assaulted while lying on their stomachs abreast each other. The deceased was also in this posture in a line. The witness said he actually saw the deceased being assaulted by Accused 1. It took the deceased a long time to admit.

Gift Nyoni was one of those arrested and detained with the deceased. His evidence was that they slept in a cell and the following day they were collected by Accused 1 who slapped him at the same time enquiring who had stoned Saungweme's vehicle.

Asked how he knew Accused 2's name, he said he learnt of her name “after the incident.” He knew her as Mutema and not by her first name.

According to him, the second accused assaulted them first and Accused 1 then thrashed them uttering the following words: “Pano panofa munhu pano” literally meaning “someone will die here”.

The witness said he took a lot of interest in Accused 2 as she is one of their assailants. He said he took note of her facial and physical features. Further, he stated that no identification parade was conducted to afford him an opportunity to identify the culprit. Prior to the incident, he did not know the accused persons' names and that he relied on his friends' version on the identity of their assailants.

Under cross-examination, the witness said they were forced to lie on their stomachs while they were being assaulted on the buttocks and on their soles for approximately 40-45 minutes. He said after the assault he had difficulties in sitting.

At court, he saw that the deceased was walking with a limp.

The State next called Malvern Van Heeden. His evidence is similar to that of the last two witnesses. He told the court that he was assaulted by two police officers whose names he “heard in the wooden room” when they were discussing them. The witness knows the accused persons as Moyo and Mutema.

Asked, under cross examination, how they were assaulted, the witness told the court that they were “made to lie on the floor on their stomachs and they took a whip and assaulted us for a long time on the buttocks”. The deceased was also assaulted. He further said his feet were sore from injuries sustained during the severe assault which he described as serious. The witness said there was a bicycle against the wall which they were supposed to support during the assault.

Asked why he did not report the assault, the witness said he felt he could not report since the accused persons were police officers. He also said no identification parade was conducted.

The State then called Biggie Ncube, the Officer-In-Charge at Sauerstown Police Station at the relevant time. His evidence was that he checked on the five suspects and no complainants were received from them. However, a relative of the deceased came to his office and told him that Accused 1 had assaulted the deceased. No identification parade was carried out because Accused 1 had been mentioned and the second accused's description was given to him. He was of the view that it was the duty of the investigating officer to carry out an identification parade.

The witness could not say who authorized the five suspects' detention and was not familiar with events that occurred at the police station during the relevant period. He, however, said there was only one investigating officer – Accused 1. As regards Accused 2, he said he was unable to tell how she became involved in this case but he understood that the investigating officer, Inspector Chirume, had carried out investigations that led to the identification of the second accused.

Elson Makono, who, in the company of Constable Calvin Mutema, attended the scene at the deceased's home, after an informant had made a report, was the next witness.

He saw the deceased's body in the garden lying facing upwards. They were not given any medical cards and they searched the house but did not find any. He looked around for physical marks or injury or foreign objects but found none; however, he noticed that the deceased's body was unusually dark. Since he had not seen any injury on the body, he concluded that it was not necessary to bring in officers from scenes of crime or homicide. However, he was instructed to complete a form for a post-mortem examination. He instructed the family to have the body ferried by a private parlour. He handed the form to officials from Family Funeral Parlour and they returned to the station.

The State then closed its case and the first accused opened his case by giving evidence in his defence.

He is an officer in the Zimbabwe Republic Police currently based at Nkulumane Police Station. He has been in the force for 13 years. He was the investigating officer in the case involving the deceased and his four (4) colleagues. He told the court that on a Sunday he took all five suspects into an office where they carried out investigations and ordered them to sit on the floor. He then called the first one who told him that Samson (the deceased) had stoned the car. He confirmed that in that office, there are bicycles used by officers. After all five (5) had said the deceased had stoned the car he took them back to the cells.

On Monday the 7th of March 2011, he took all the five suspects into the same office where he repeated the same question. After receiving the same answer, he then recorded a warned and cautioned statement from the deceased and witnesses' statements from the rest. Since he was in charge of the investigations he asked other officers to assist him. Later, he phoned Saungweme to come and identify the culprit which he positively did and left. He then released the rest of the suspects on the officer in charge's instructions after warning them to go to court the following day.

On Tuesday (8 March 2011) he took the deceased, and one Samson Magagula, to court where he left them with prison officers.

According to him, although the deceased was walking bare footed, he had no difficulty in walking.

On a Thursday, Saungweme phoned him enquiring about his money. While at work, on the same day, he heard that the person who was found dead was Samson Ncube and he unsuccessfully tried to contact Saungweme. Eventually, he sent him a message that the deceased had died.

Later, he was informed that he was a suspect on a charge of murder.

He said no identification parade was conducted.

When the State's version was put to him, he totally denied it adding that they do not use such weapons when investigating cases and that baton sticks are kept under lock and key and if one requires it, one would have to book it out. He did not know why all the three witnesses said he assaulted them as described.

Asked where Accused 2 was when he was interviewing these suspects, he said;

“While I was interviewing them, Accused 2 walked in and asked me what they were being charged with and I told her. She then went to her office in CRLO”.

According to him, Accused 2 was brought in because “she is my colleague” whose office is near his.

He said the deceased was “quiet and reserved.” The only time he spoke was in the Set Down office. He denied forcing the deceased to drink diesel or electrocuting him saying if that happened it occurred somewhere and not at the police station.

Under cross-examination, he said;

“I never assaulted them. They incriminated the deceased. They were aggrieved by being arrested yet the police knew who had committed the offence. I kept on insisting that they should tell the truth.”

Further, in answer to a question, he said;

“They were not happy to be detained; they now want to shift the blame to the police. As I was asking them, they kept on saying it was not necessary to ask them. They were not happy about how they had been treated by Saungweme. My name just came in because I was the investigating officer.”

Finally, he said the deceased was probably injured after his release by the court. He blamed the investigating officer of this case from improper handling of the case by failing to conduct an identification parade and conspiring with the witnesses to incriminate him.

The second accused also gave evidence in her defence.

She said she had been with the Zimbabwe Republic Police for nine (9) years. On Sunday, 6 March 2011, while on standby duties, she visited Accused 1 in his office where she found the five (5) suspects sitting on the floor. She enquired from Accused 1 what charges they were facing and when told she returned to her office.

The witness said there were other officers in that office at that time.

She denied assaulting the suspects or witnessing any assault by Accused 1.

The witness said she did not know where the “suspects” i.e. the three (3) State witnesses got her first name from but she suspected they were told by the investigating officer. She admitted that although there are two Mutemas at the station, the other one is male and was not present on the day in question.

Both accused persons' legal practitioners indicated that they were calling witnesses to testify for both of them.

The first defence witness was Linda Mukhavhi who is a police officer at Sauerstown Police Station. Her evidence was that on the 6th day of March 2011 she was on standby at Sauerstown Police Station when she observed Accused 1 questioning the five (5) suspects in the office. She said they were being called one at a time. According to her, the suspects were never assaulted in that office. She claimed to have remained in that office for most of the time. Further, she said the suspects were fixing police officers for remaining in the cells for too long. Asked whether she assisted Accused 1 in any way she said;

“I witnessed the recording of the statements.”

While in that office, she said Accused 2 entered and asked what charge the five suspects were facing and she then left after Accused 1 answered her question.

The next defence witness was Felix Sangu, a police officer based at Sauerstown. He knows both accused persons as workmates. This witness' role was to accompany Accused 1 and the deceased to court where he claims the deceased did not complain to the Set Down prosecutors. He also said the deceased had no shoes, had a pair of trousers, and a vest. He did not see any injuries on the deceased who he alleged was “walking well”. The witness said earlier on Monday morning he had conducted a cell inspection and all the five suspects told him they had no complaints against the police. However, he was not able to state whether or not there were other suspects in the cells apart from the five.

The next defence witness was Goodluck Katemaire, a police prosecutor manning court on the day the deceased was placed on remand. He said due to pressure of work, they could not finalise the matter on that day, hence it was postponed to a Friday, the 11th of March 2011.

Interesting though, the witness said, contrary to the norm, the deceased was not asked by the magistrate if he had any complaints against the police. The deceased did complain mero muto to the magistrate about his treatment while in police custody. He did not see any visible injury on the deceased. Also, he said the deceased admitted the offence and promised to pay restitution to the complainant on the next remand date.

After this witness, both accused persons, who had agreed that these defence witnesses were for the two of them, then closed their cases.

Analysis

This will be done with all the issues in mind. However, specific findings will be made in respect of each issue. I now proceed to deal with them seriatum.

1. The evidence of Thembinkosi Shoko, Gift Nyoni, and Malvern Van Heerden shows that all the five suspects, the deceased included, were assaulted in police custody. They described, in detail, how they were assaulted and what weapons were used by the assailants. What was referred to as a fan belt turned out to be a “whip”. From their evidence, the assault was perpetrated in a reckless manner over a period of time.

A critical piece of their evidence is that when their parents visited them on that Sunday, they complained about the assault. They requested them to approach the complainant with a request that he secured their release from police custody. Further, the evidence of Saungweme corroborates that of the three witnesses in that he confirmed that the 'suspects' parents approached him pleading with him to withdraw the charges to save these witnesses from further assaults by the police.

What this means is that the witnesses told their parents that they had been assaulted by the police. They identified the complainant as Saungweme. The parents, in turn, approached Saungweme and requested him to withdraw the charges so that the witnesses would be released. If this had not happened, there was no way Saungweme would have known about the assault.

Further, the fact that Saungweme approached the police on a Sunday, with a desire to withdraw the charge, and, ultimately, having the witnesses released lends credence to this evidence.

This evidence was not challenged by the accused persons.

Indeed, Saungweme returned to the police station on a Monday resulting in the release of three of the five suspects. Unfortunately, the deceased remained in custody that Monday and was only taken to court the following day. When asked about the deceased's condition on Tuesday (the day they were taken to court) Gift Nyoni said the deceased was “walking with a limp.”

Further, the evidence of Israel Ncube, the deceased's brother, shows that the deceased was not well at all since Wednesday. The deceased never left home and was unable to carry out manual work. Also, the postmortem report shows that the deceased died of -

(i) Intracranial haemorrhagic.

(ii) Head injury.

(iii) Assault.

From the above, we make a finding that the State witnesses were credible witnesses who told the court the truth as regards the assault. We therefore make the following findings in respect of the first issue;

(a) The five suspects were assaulted in police custody by police officers.

(b) The assailants used the weapons described by the witnesses.

(c) The deceased was assaulted while in police custody.

(d) The deceased was assaulted indiscriminately.

2. The next issue is; who assaulted the deceased and the other suspects? I must point out that the proper question here is; who assaulted the deceased?

It should be noted that identification is not an issue as regards the first accused person. This is so because it was never an issue during the trial.

It is common cause that Accused 1 was the investigating officer who dealt with the deceased's case from Sunday to Tuesday when he took him to court. It is therefore out of the question that any other police officer/s could have assaulted the deceased and his friends on that Sunday. The fact that Accused 1 has not alleged that, is proof that it did not happen.

Accused 1 admitted that he interrogated the five suspects on that Sunday. He also admitted that he recorded warned and cautioned statements from them on that day. Further, he confirmed that the deceased admitted the charge of malicious damage to property to him as the investigating officer. He confirmed Saungweme's visit. He admitted that he took the deceased to court and was later informed of the deceased's death.

The three State witnesses told the court that they (the deceased included) were assaulted by Accused 1. Accused 1 denies this. Apart from Accused 1's compatriots, there were no other witnesses to the assault. All police officers who testified as defence witnesses denied witnessing the assault described by the three State witnesses.

The question is; who is telling the truth here?

We have already made a finding that the deceased and the three (3) State witnesses were assaulted in police custody. The only officer who had an interest in this matter is Accused 1. The three State witnesses said the assaults stopped after the deceased admitted the crime. It is common cause that it is Accused 1 who recorded a warned and cautioned statement from the deceased and witnesses' statement from the four suspects. Therefore, it follows that if the reason for the assault was to extract confessions, the only person who needed those confessions is Accused 1.

Unlike the State witnesses' version, which is clear on what happened to them that Sunday morning, the first accused's version is contradictory.

For example, according to him, in evidence in chief, the interview of the “suspects” did not take long that Sunday morning as the first suspect told him the deceased was responsible and he returned them to the cells. He said he then repeated the exercise on Monday and recorded statements. Yet, under cross-examination, in answer to a question as to why these suspects said he assaulted them Accused 1 said;

“As I was asking them, they kept on saying it was not necessary to ask them. They were not happy about how they had been treated by Saungweme. My name just came in as I was the investigating officer…,. I kept on insisting that they should tell the truth.”…,.

Quite clearly, Accused 1 took much longer with the suspects than he is prepared to admit. The question then becomes; how was he insisting that they tell the truth?

Also, in evidence in chief, he said;

“On Sunday I was alone but there were other officers doing other duties.”

Yet, in his warned and questioned statement he said five police officers assisted him to interview the suspects. This was repeated in the Defence Outline where these police officers were mentioned by their names.

He also said finger printing was done on Sunday while the recording of the deceased's warned and cautioned statement was done on Monday together with the recording of witnesses' statements from the rest of the suspects.

One of the defence witnesses, Constable Mukavhi, in describing Sunday's events said;

“They were called one by one and they were being asked in connection with the charge.”

Asked how exactly she assisted Accused 1, she said;

“I assisted in the recording of these statements and I would be sent on errands.”

In our view, there are numerous problems with this evidence.

Firstly, only one warned and cautioned statement needed witnessing. Secondly, and perhaps more importantly, this statement, together with witness's statements from the other four suspects, were recorded on Monday and not on Sunday. Therefore, Accused 1 was not being truthful when he said he interviewed the five suspects on Sunday in the presence of five (5) police officers.

Thirdly, Accused 2, who was mentioned in the Defence Outline as one of those who assisted Accused 1, denied ever carrying out such a role.

Constable Mukavhi lied that she assisted him on a Sunday when it is common cause that these statements were recorded on Monday.

Another officer who was said to have assisted Accused 1, one Constable Sangu, was not on duty on Sunday but reported for duty on Monday. He, however, categorically denied assisting Accused 1 during the suspects' interview.

Accused 1 did not call the remaining officers he mentioned in his Defence Outline.

In our view, Accused 1's evidence, surrounding the events of the fateful Sunday, is totally incredible. It contains falsehoods and lacks corroboration. We therefore accept the State witnesses' evidence wherever it differs with that of Accused 1.

As regards Accused 2, identification is clearly an issue.

That this was the case became apparent on 18 July 2011 when a warned and cautioned statement was recorded from her. In that statement, which is exhibit 3B, she denied having anything to do with the deceased and his friends. Notwithstanding this clear position, the investigating officer surprisingly failed to have an identification parade conducted.

It is trite law that where identification is in issue, the evidence of identification should be approached by the courts with some extreme caution. In S v Mtetwa 1972 (3) SA 767 (A)…, HOLMES JA said;

“Because of the fallibility of human observation, the evidence of identification is approached by the courts with some caution. It is not enough for the identifying witnesses to be honest; the reliability of his observation must also be tested. This depends on various facts such as lighting; visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, built, gait and dress; the result of the identification parades, if any; and, of course, the evidence by or on behalf of the accused.

The list is not exhaustive.

These factors, or such of them as are applicable in any particular case, are not individually decisive, but must be weighed one against the other in the light of the totality of the evidence and the probabilities.”

See also S v Dhliwayo and Anor 1985 (2) ZLR 101 (S)…,.; S v Ndhlovu & Ors 1985 (2) ZLR 261 (S)..,.; S v Mutondi 1996 (1) ZLR 367 (H); and S v Marado 1994 (2) SALR 410.

As regards caution, GILLESPIE J…, in S v Mutondi 1996 (1) ZLR 367 (H) said;

“Caution is not demonstrated by the mere statement that one is aware of the need for caution, where the subsequent assessment shows no more than superficial comparative assessment of demeanor.

The shibboleth that the identifying witness was 'composed and remained unshaken during cross-examination' is wholly inadequate as a demonstration of caution. The uttering of any cautionary words must be supported by the demonstration in the reasoning of a cautious approach paradoxically, that utterance itself becomes unnecessary where the judgment shows alertness to the dangers concerning which the cautionary rule in question seeks to address…,.”

In casu, the State conceded that the failure to hold an identification parade leaves the possibility of mistaken identity unshaken.

The evidence of identification of Accused 2 is unclear in that all the witnesses did not know the second accused prior to that day.

Gift Nyoni, for example, said “a lady assaulted us first” before Accused 1 came and further assaulted them. Asked in cross examination why he was able to say Accused 2 assaulted them, he said “I have not forgotten who had assaulted me – it was her.”

“Q. How were you able to identify these accused persons?

A.. I did not know their names.

Q. Where did you get to know the name Mutema?

A. I was interested in the person and my friends did not forget. I came to know her as Mutema and not by her first name.”

The other State witness, one Sithembinkosi Shoko's evidence in that initially he said he was told Accused 2's name by “someone” and later said he heard the name 'Mavis' when police officers were chatting amongst themselves using first names.

Malvern Van Heerden's evidence of the identity of Accused 2 is shaky. This can be illustrated by the following exchange:

“Q. How many assaulted you?

A. Moyo and Mutema.

Q. How did you get to know them?

A. Because they assaulted me – I heard from the wooden room where we were discussing them.”

From this evidence, it is clear that there was a high degree of suggestibility. All witnesses admitted that they discussed the second accused's name amongst themselves. Some simply relied on their colleagues' memory. They obviously picked the names 'Mavis' and 'Mutema' after they had been assaulted. There is a real possibility that they were mistaken since the circumstances under which they picked up the names are murky although the rest of the circumstances are redolent with suspicion against her.

Be that as it may, one remains aware of the apothegm of the Roman man of letters of the 1st Century BC PUBLILIUS SYRIUS “Judex dam natur ubi nocens obsolvitur” (where the guilty is acquitted the Judge is condemned).

However, in casu, if blame is to be attributed for this result, it rests more justly on the shoulders of the investigating officer who did not conduct an identification parade, and, perhaps, of the State counsel who went to trial on an incomplete and inadequate docket.

The court may take comfort in another aphorism, falling from the eminent Sir WILLIAM BLACKSTONE, and one which comments itself to all:

“It is better that ten guilty persons escape than one innocent suffer.”

See also S v Shelton Vingaso and Others HH18-97.

For these reasons, we make the following findings:

(a) The State witnesses, Thembinkosi Shoko, Gift Nyoni, and Malvern Van Heedrden are credible witnesses whose testimony, as regards the identity of Accused 1, we accept.

(b) Accused 1 performed poorly as a witness and we therefore reject his evidence.

(c) Accused 1 assaulted the deceased in the manner described by the three witnesses and as shown by Israel Ncube.

(d) Accused 1 used a baton stick and a fan belt shaped like a whip.

(e) There is insufficient evidence to link Accused 2 to the commission of this crime.

(f) The State has failed to prove its case against Accused 2 beyond a reasonable doubt.

3. The next issue is whether or not there exists a nexus between the assault and the deceased's death

According to the law, for murder to be established, it must be proved that the accused caused the death of the deceased. It must be proved that the accused was both the factual and legal cause of death.

G. FELTOE in A Guide to the Criminal Law, 3rd edition…, puts it thus:

“The test to determine whether X was the factual cause of the consequence is to ask: but for X's actions would the consequence have occurred? If it would not have occurred but for X's conduct, then X is the factual cause of that consequence. If it would still have occurred anyway, then X is not the factual cause of the end result…,.

The test for legal cause is to ask whether the consequence was reasonably foreseeable or was within the range of human experience. If the consequence was reasonably foreseeable, then X is held to have been the legal cause of that consequence.”

See also S v Runokonda SC27-85; S v Ndlovu SC21-87.

In casu, the starting point is the post mortem report which lists the cause of death as;

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

We have already found that the first accused assaulted the deceased with a baton stick and a fan belt all over the body. It was contended, for Accused 1, that he did not cause the deceased's death for the following reasons;

(i) He did not assault the deceased at all;

(ii) Even if it were to be found that he assaulted him, the assault must be limited to that described by the three State witnesses, namely, that they were assaulted on the buttocks and underneath their feet. Since they said they were not assaulted on the head, it follows that Accused 1 did not assault the deceased on the head.

(iii) All three State witnesses deny being tortured in police custody through the use of electricity or being forced to drink diesel.

(iv) Accused 1 must therefore be found guilty of assault if it is found that he assaulted the deceased.

We have already made a finding in respect of the first point. As regards the second, it does not follow that simply because the witnesses were not assaulted on their heads, the deceased was not.

From the evidence, the assault was prolonged and carried out in a reckless manner. All witnesses described the texture of the weapons used as very hard. Depending on the force wielded, these weapons have the capacity to cause injuries observed by the doctor i.e. extensive haemotoma on the scalp.

In our view, the submission that the deceased died as a result of injuries caused by electricity and diesel is misleading in that the post mortem is clear as to the cause of death. It excludes these as contributory factors.

We must point out, though, that the origin of these marks of violence remain a mystery in that from the totality of the evidence, on one hand there is no way the deceased would have sustained these injuries after his release. On the other hand, while it is common cause that the deceased remained in custody for a day and night after his colleagues had been released, it would be speculation to find that they were inflicted by the accused on Monday when the deceased was still in police custody. Be that as it may, those injuries did not cause the deceased's death and therefore are irrelevant to this inquiry.

We must also indicate here that while further clarification could have been given by the pathologist, we were informed, at the commencement of the trial, that this was not possible because the doctor had long returned to his country of origin.

We therefore find that the deceased died as a result of Accused 1's actions. His conduct is both the factual and legal cause of the deceased's death.

4. The last issue is whether or not the first accused intended to kill the deceased

In S v Mugwanda SC19-02 it was held, per CHIDYAUSIKU CJ, that to establish intention it is sufficient if X subjectively foresaw the possibility of his act causing death and was reckless of such result…,. Subjective foresight, like any other factual issue, may be proved by inference.

For a court to return a verdict of murder with actual intent it must be shown that either:

(a) X desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective, he foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.

A verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain making this a question of degree more than anything else).

In S v De Bruyn 1968 (4) SA 498 (A) HOLMES JA defined dolus eventualis in the following terms:

“The accused foresees the possibility, however remote, of his act resulting in death to another, yet he persists in it, reckless whether death ensues or not. On analysis, the multiple characteristics of this form of dolus are;

1.Subjective foresight of the possibility, however remote, of his unlawful conduct causing death to another.

2.Persistence in such conduct, despite such foresight.

3.An insensitive recklessness (which has nothing in common with culpa).

4.The conscious taking of the risk of resultant death, not caring whether it ensues or not.

5.The absence of actual intent to kill.”

BUREHELL and HUNT, Vol 1…, state that the 'recklessness' required for dolus eventualis:

“Means the taking of a conscious risk. The accused foresees the consequence in question as a real possibility and yet persists in his conduct irrespective of whether it does result or not…,. It seems in every situation where the accused does not foresee the consequence as at least a real possibility and nevertheless persists in his conduct irrespective of whether it results or not, he does consciously take the risk of it happening.”

Recklessness, in this context, means consenting, reconciling himself to it or taking it into the bargain – see S v Swanepoel 1983 (1) SA 434 (A).

In principle, it does not matter, in respect of dolus eventualis, whether the accused foresees (subjectively) the possibility as strong or faint, as probable or improbable, provided his state of mind in regard to that possibility, is 'consenting', 'reconciling' or 'taking into the bargain'.

In our law, dolus eventualis is commonly referred to as legal intention which exists where an accused does not mean to bring about the criminal consequence but engages in an activity which he subjectively foresees there is a real possibility that a criminal consequence may occur and he nonetheless proceeds with his activity, reckless as to whether or not the consequence ensues.

Foresight may be inferred from the facts where an accused denies that he foresaw the consequences – see G. FELTOE in A Guide to the Criminal Law, 3rd edition…,.

In casu, on the evidence, the only reasonable inference is that the first accused had the requisite intent, in the form of dolus eventualis or legal intention, to kill the deceased. We say so for the following reasons:

(a) Firstly, death arising from a serious assault on a vulnerable part of a human body is a foreseeable phenomenon in that a serious assault leads to serious injury, which, in turn, may lead to death. The accused foresaw the real possibility of death occurring. Despite this realization, the accused exhibited insensitive recklessness by delivering blows to the deceased's head as reflected in the post-mortem report.

(b) Secondly, the resultant injuries can only be attributed to the use of excessive force in that the blows caused “extensive haematoma on the scalp” and “extensive intracranial haemorrhage” in the brain.

(c) Thirdly, there was persistence in that the assault was prolonged and serious. The accused's sheer resolve and determination to inflict harm is demonstrated by the fact that he managed to assault five people over a period of time.

(d) Finally, by uttering the words “pano panofa munhu pano” (someone is going to die here), the accused consciously took the risk of death occurring into account.

In our view, this spontaneous utterance, made during the assault, clearly shows the accused's state of mind in regard to the possibility of death. More significantly, it shows that the accused reconciled himself to the possibility of death resulting or took the possibility of death into the bargain, but, notwithstanding that, persisted in his conduct. Put differently, although the accused did not mean to bring about the deceased's death, he assaulted the deceased in circumstances where he subjectively foresaw the real possibility of the deceased's death, but, nonetheless, proceeded with the assault, reckless as to whether or not death ensued.

For these reasons, we find the first accused guilty of murder with constructive intent. The second accused is found not guilty and acquitted. The court finds that the murder was not committed in aggravating circumstances....,.

In assessing an appropriate sentence we will take into account what has been submitted on your behalf by your counsel in mitigation. We will also consider the aggravating features in the case. Particularly, we will consider the fact that you are a first offender, married with two young children. We were also informed that you are remorseful.

What is aggravating is that murder is a very serious offence in that it involves loss of life. The courts have a duty to uphold the sanctity of human life.

Assaults on suspects in police cells is a very serious crime in that it constitutes a grave violation of human rights and dignity. It is akin to torture which is outlawed not only in our Constitution but internationally. Further, such behaviour brings the Zimbabwe Republic Police in its entirety into disrepute by tarnishing its good image. Also, it engenders feelings of hostility in the public which is detrimental to the maintenance of peace and security.

Police are the custodians of the law therefore they are not supposed to break it.

It will be a sad day if police stations are allowed to be lynch-houses where suspects dread to be in. Assaulting suspects is primitive and barbaric. The courts will not countenance barbarism in the investigation of cases by law enforcement agencies. There are modern methods or techniques of investigating cases that the police should adopt. Fighting crime does not mean that police officers must literally fight suspects in police cells.

What makes this case a bad one is that the offence the deceased had committed was a petty one and he had admitted his guilt. On those basis, the accused's conduct was particularly reprehensible.

For these reasons you are sentenced as follows:

18 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving violence upon the person of another of which upon conviction shall be sentenced to imprisonment without an option of a fine.

Effective: 15 years imprisonment.

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

Section 52, which accords the right to personal security, categorically prohibits violence at the hands of both private and public actors.“52 Right to personal securityEvery person has the right to bodily and psychological integrity, which includes the right —(a) To freedom from all forms of violence from public or private ...

HHH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

The applicants apply for bail pending appeal against both conviction and sentence.

The applicants were convicted of “murder with constructive intention” as defined in section 47(1)(b) of the Criminal Law Codification and Reform Act [Chapter 9:23] by MWAYERA J sitting with Assessors on 31 May 2017 in the High Court, Harare….,.

The brief facts of the matter were that the applicants, including another who passed on during the course of the trial, unlawfully assaulted the deceased, Aleck Bongo Loore, and arrested him on allegations of having committed a robbery at Impala Downs Farm. The applicants were one or more or all of them employees at the said farm. The accused were investigating the robbery and seeking to arrest the perpetrators as well as recovering proceeds of the robbery. The accused persons held the deceased captive from the night of 23 March 2009 and surrendered the deceased to the police on the following day around 10:00am.

The learned judge, in a 12-paged typed judgment, believed State witnesses whose evidence corroborated each other that the deceased was subjected to a protracted and vicious assault by all the applicants using their booted feet, baton sticks, and switches. The applicants wore safety shoes and assaulted the deceased indiscriminately all over the body.

Applicant Number 4, Stanley Chitenda, was a member of the police special constabulary and he admitted to having assaulted the deceased under the feet.

The learned judge accepted the further evidence of State witnesses that the applicants, all other of them trampled on the deceased as he lay on the ground injured.

The learned judge acknowledged slight variations in the description of the nature of the assaults perpetrated by the applicants. The variations pertained to matters of detail which were immaterial.

The assault perpetrated on the deceased was serious. He was taken to the police station by the applicants in a vehicle and from there to the hospital. The deceased could hardly stand or walk on his own. The deceased's body was swollen, including his face, and he could hardly open his eyes. He could not talk. The deceased fell down on the floor in the charge office as he could not support himself.

There was a suggestion that the deceased hit against the pillar at the charge office.

Whether or not he in fact did so before falling to the floor would be immaterial because the deceased's inability to walk or stand on his own was on account of his condition which was not self-induced but a result of the assault perpetrated upon him by the applicants.

The deceased was pronounced dead on arrival at the hospital. The evidence of the doctor corroborated the State witness evidence that force had been applied to the body of the deceased. The learned judge detailed the injuries found by the doctor upon the examination of the remains of the deceased. The injuries were observed, inter alia, on the neck. The neck was fractured. The doctor's evidence, as the learned judge observed, was not controverted. The learned judge dismissed the applicants' contentions that in the absence of an internal examination having been conducted, the doctor's evidence could not be given evidential value.

Indeed, where an assault results in a broken neck and the victim dies; what other conclusion can be reached other than that the assault resulted in the death of the victim?

There was no misdirection on the part of the learned judge in accepting the doctor's evidence as to what injuries the doctor observed and the doctor's conclusion as to the cause of the deceased's death.

The learned magistrate convicted the applicants on the basis of their having acted in common purpose.

The learned judge was not misdirected in articulating and applying the doctrine of common purpose and in convicting the applicants on the said basis. The applicants admitted engaging in the assault upon the deceased but minimized their degrees of participation and involvement.

The doctrine of common purpose seeks to deal with this very legal problem. It admits that in gang actions, each member cannot act in the same manner as the other one. The degrees of participation, in the absence of dissociation, are not material.

The learned judge correctly applied the doctrine of common purpose to the facts of the matter.

I have considered the applicants' grounds of appeal. The applicants seek to argue that they were acting under the influence of marijuana which affected their mental composure to such extent as to vitiate their ability to form an intention to commit the crime.

This issue was not advanced as a substantive defence by the accused.

The proof of voluntary intoxication is a burden imposed upon an accused who advances such defence as clearly set out in section 222 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The applicants failed to discharge the onus to prove voluntary intoxication leading to an inability to form the requisite intention for the commission of the offence. The learned judge made a finding that the applicants only sought to minimize their degrees of participation. This is inconsistent with the conduct of a person who cannot explain his conduct because of intoxication. This ground of appeal is ingenious but a red herring or spanner thrown in the works to confuse the clear factual scenario surrounding the commission of the offence by the applicants.

The applicants also argue that the trial court wrongly applied the doctrine of common purpose on the basis of “dolus eventualis” which is not part of our law.

Apart from the submission being hair splitting, the ground of appeal lacks merit in as much as the applicant's aver that the court a quo treated foresight as an inevitable yardstick of common purpose. The applicants further aver that the trial court failed to enquire at what point the applicants foresaw the possibility of the deceased dying and made a conscious decision to continue in the harmful activity.

The applicants clearly did not acquaint themselves with the provisions of sections 196A to 200 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] when formulating this ground of appeal.

The provisions of the said sections, read together, are clear that the doctrine of common purpose is very much part of our law and was correctly applied by the trial judge who was aided by decided cases in the superior court as quoted in her judgment.

The ground of appeal respecting an attack on the findings as to the cause of death has been dealt with. It lacks merit. The applicants viciously assaulted the deceased and the chain of causation was clearly established….,.

In my judgment, there are no prospects of prospects of success against conviction or sentence in this case….,.

The applicants perpetrated a vicious and prolonged assault upon the deceased whom they held hostage for more than 10 hours. Despite the deceased having suffered serious injury and helplessly lying on the ground, with the body and face swollen, and unable to talk, the applicants did nothing to assist him. They were intent on causing harm to the deceased. They used weapons and their booted feet. The injuries suffered by the deceased were serious and led to the deceased's death.

The trial judge justifiably found that the deceased had been subjected to torture and inhuman treatment. The applicants perpetrated a gang assault. The trial judge described the applicants as having engaged in “a rampage” in a merciless manner….,.

In all the circumstances, I am not persuaded that the applicants have discharged the onus to prove, on a balance of probabilities, that the interests of justice will be served by their release on bail. Their prospects of success on appeal are virtually nil, and, in the result, I determine the application as follows:

That the application for bail pending appeal be and is hereby dismissed.

HHMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

The accused was initially charged with murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged that on 7 June 2017, and at Ratelshoek Tea Estate, Chipinge, the accused unlawfully and with intent to kill or realizing that there was a real risk or possibility that his conduct might cause death and continued to engage in that conduct despite the risk or possibility shot Tinashe Gwiza in the head with a 12 Bore Pietro Beretta shotgun once thereby inflicting injuries from which the said Tinashe Gwiza died.

The accused pleaded not guilty to murder but admitted to having negligently caused the death of the deceased. The accused tendered a plea of guilty to culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State accepted the limited plea of guilty to culpable homicide. A Statement of Agreed Facts was tendered as Annexure “A”.

It was apparent, from the Statement of Agreed Facts, that, on the fateful day, the deceased, together with five (5) others, connived to go and steal irrigation polythene pipes at Ratelshoek Tea Estate. The deceased and company proceeded to the Estate with a one and a half ton truck and stole 14x100m rolls of polythene irrigation pipes. As they were making good their escape from the farm the security guard on duty alerted the accused who then teamed up with the Estate Manager to follow up on the intruders.

The accused armed himself with a shotgun with five bores. The accused and the Estate Manager, who were using a Ford Ranger Twin Cab truck, managed to intercept the truck in which the loot, the accused and colleagues were in.

The truck and the Ford Twin Cab were involved in an accident as they side-swiped at an intersection. This caused the truck to stop. The accused then fired two warning shots into the air and another shot in the direction of the now deceased and shot him in the head.

The accused discovered the deceased lying on the ground bleeding profusely. The deceased was about four (4) metres away from the truck. He was rushed to Chipinge Hospital where he passed on the following day, the 8th of June 2017.

The remains of the deceased were examined and the cause of death was established as skull fracture secondary to bullet injury.

The State tendered in evidence the postmortem report, ballistic report relating to the firearm and spent cartridges and also the firearm in question.

Further, the State produced a sketch plan drawn at the scene by the attending police details. All the exhibits were tendered by consent.

The accused admitted to having negligently caused the death of the deceased by firing a shotgun in the direction of the deceased. He admitted having been negligent by failing to realize that death might result from his conduct resulting in injuries from which the deceased died.

We convicted the accused on his own plea of guilty to culpable homicide.

Having been addressed in mitigation and aggravation we proceeded to sentence as follows:…,.

The accused is a fairly old man of 63…,.

Counsel for the defence stressed a central principle in sentence for culpable homicide, that an offender is not being punished for intention, because in the first place he does not have the intention, but will be punished for his carelessness. See S v Richards (1) ZLR SC 2001 129 where the Supreme Court in deciding on an appropriate sentence for a conviction of culpable homicide clearly stated pertinent remarks…, as follows:

“The function of crime of culpable homicide is not so much to punish evil doers as to incalculate caution in the citizenry and encourage attentiveness to the safety of others. In short, the function of culpable homicide is as much educative as it is coercive.”

The accused, in this case, ought to be punished for his failure to comply with the expected social norms of care which a reasonable man placed in his position ought to have exercised.

The accused armed himself with a shotgun which is a lethal weapon. He was in pursuit of intruders, human beings, and was aware these same people, upon bringing their truck to a halt by virtue of the impact with the accused and the manager's vehicle, would escape. The accused fired at close range in the direction of people. The accused was negligent in the manner he fired the dangerous weapon in circumstances where he ought to have foreseen the risk or harm to the human beings who were fleeing.

It is for that carelessness that an appropriate sentence has to be considered….,.

The accused negligently caused the death of the deceased by firing in the general direction of the deceased. The accused, having been a security guard for 34 years, ought to have been trained in the use of a firearm.

His conduct on the night in question borders on recklessness.

After the accident, the truck of the intruders having side swiped with the accused and the manager's vehicle, stopped and the loot remained at the farm. The overzealous display of power was not necessary. He knew the shotgun would discharge pellets in different directions and that there were people making good their escape, but, nonetheless, he fired shots in the direction of the people.

The accused's moral blameworthiness is high given the property he sought to protect had been abandoned as the truck with the loot had come to a halt.

Further, in aggravation, is the fact that the sanctity of human life is clearly spelt out in the Constitution. It is a God-given right which no one has a right to take. A young 20 year old man was robbed of his life at a prime age of his life. The accused, an old man of experience as a security guard, ought to have done better and not use a lethal weapon on a human being….,.

In our endeavour to pass sentence, we are alive to the principle that the court has to strike a balance between the offence, offender, and societal interests while at the same time tempering justice with mercy; see S v Rubie 1975 (4) SA…,. The courts should not make the community lose confidence in the justice delivery system by letting those who caused loss of precious human life go unpunished. The right signal has to be sent to those in authority and power that they should refrain from exerting force and unnecessarily shoot to kill under the realm of protecting property.

At the same time, the message has to be sent loud and clear that a progressive society like ours emphasizes the need for the rule of law to be observed. Arrests do not mean killing - the law should be allowed to take its course.

The sentence should also reflect that the courts frown at lawlessness.

The deceased and company had gone to this farm for purposes of stealing and this caused the unfortunate loss of precious human life. The fact that the accused has been a security guard for 34 years and that despite the miserable low salary or wage of ±$300 went out with full force to protect his employer's property is indicative of his loyalty. We have found this to be highly mitigatory and it further reduces his moral blameworthiness….,.

Having considered all the submissions by both counsel, and given the circumstances of the offence, it is our considered view that the offence is deserving of a custodial term. We will not trivialise negligent killing of another with a firearm in protection of property in circumstances where it was not necessary and could have been avoided.

Given the degree of negligence exhibited in this case, which can be described as high, it would be a mockery of the justice delivery system to impose a fine where an experienced security personnel negligently fired at close range, and in the range of the head, causing death of the deceased….,.

The accused is sentenced as follows:

3 years imprisonment of which two and a half years is suspended for 5 years on condition accused does not within that period commit any offence involving unlawful use of a firearm and/or violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

The applicant seeks a spoliation order against all the 18 respondents on the following terms:“A. TERMS OF THE FINAL ORDER SOUGHTIt is ordered that:(1) The Respondents are interdicted from interfering with the Applicant's project and business in whatever manner.(2) The Respondents' behaviour and conduct is hereby declared wrongful and unlawful.(3) ...

The applicant seeks a spoliation order against all the 18 respondents on the following terms:

“A. TERMS OF THE FINAL ORDER SOUGHT

It is ordered that:

(1) The Respondents are interdicted from interfering with the Applicant's project and business in whatever manner.

(2) The Respondents' behaviour and conduct is hereby declared wrongful and unlawful.

(3) The Respondents are ordered to pay costs of suit on a client–attorney scale.

B. PROVISIONAL ORDER GRANTED

Pending the confirmation of the provisional order;

It is ordered that;

(1) The Respondents be and are hereby ordered to release and return all documents, and office keys to the Applicant forthwith or at least not later than 48 hours from the date of this order.

(2) The Respondents are ordered to vacate the Applicant's offices at No.6 Kataza Road, Zvishavane and allow the Applicant to take occupation of its offices forthwith.

(3) The Respondents are barred from interfering with the Applicant's affairs, business or/and project in whatsoever manner unless with the Applicant's consent.

(4) The Respondents are barred from going to Izayi Park project site unless with the consent of the Applicant.

(5) The Respondents are interdicted from harassing and threatening the Applicant's executive members or the Applicant's general members in whatever manner.

C. SERVICE OF THIS ORDER

Service of this order shall be effected by the Applicant's legal practitioners.”...,.

I will now deal with the merits of the application.

Mr Elinas Gumbo stated, in his founding affidavit, that the applicant operates as a housing co-operative, a scheme established in 2007 and managed by the Ministry of Local Government and Housing Development, doing business in Zvishavane in conjunction with Zvishavane Town Council. It has been operating smoothly to date and run by an executive committee of six members who are himself, Elinos Gumbo, Engineer Chiraya, Ngara Phiri, Benson Farai, Rufaro Nyoni, and Maxwell Mubaiwa.

He said recently, and on 7 February 2015, the respondents, most of whom are defaulters, ganged and decided to oust the executive committee in a coup style.

What happened was that the applicant called for a meeting on 7 February 2015 at Izayi Park for all its members so that they could appraise them on the state of progress and the respondents planned their meeting on the same day and time with the applicant. When the meeting started, at 09:00am, the respondents chased the applicant away claiming that they were war veterans and the 14th respondent claimed he was a police officer who could arrest the applicant's executives if they refuse to leave the meeting.

The applicant's executive members complied and left the meeting, but after dissolving the meeting. The respondents proceeded with an illegal meeting when most of the members had left with the applicant's executive members. The applicant then reported the matter to the relevant Ministry which is currently seized with the matter.

Whilst waiting for the Ministry to finalise the matter and resolve the dispute, the respondents teamed up, and, on 16 February 2015, besieged the applicant's offices at No.6 Kataza Road, Zvishavane. They forcibly entered the offices and took the office keys and books and proceeded to unlawfully evict all office bearers and threw their belongings outside.

The applicant reported the matter to the Zimbabwe Republic Police, Zvishavane, but, the fourth respondent, who is a police officer, influenced the police who then told the applicant that the matter was a civil matter.

This prompted the applicant to approach this court on an urgent basis as there is no alternative relief in the circumstances.

The applicant felt that it will suffer irreparable harm as the respondents' conduct was unlawful and a cash box with US$23,500 was taken away. Furthermore, he said the respondents threatened to kill the applicant's executive members should they dare challenge them hence the members are now living in fear of the respondents' barbaric behaviour.

The respondents, through an affidavit deposed to by one Shadreck Gwena, the first respondent, denied the allegations.

They admitted that the project was established in 2007, but claimed that it has not been functioning smoothly to date. They submitted that the project was terminated in May 2013 and the beneficiaries held a meeting on 3 January 2015 and voted out the old committee. A new committee, comprising of the following members, was voted into office. These are Stephen Chipembere, Noel Muremba, Munashe Chikwekwe, Tendayi Sibanda, Erina Chipungu, Kennedy Shumba, Captain Chipwanyira, Panyika Ndlovu, and Virginia Sithole.

The respondents, further, claimed that at the meeting of the 7th of February 2015 they did not chase away the old committee members, but, rather, challenged them on why they were calling the meeting when they had been ousted, and at a time they were being investigated.

They confirmed that the 14th respondent is a member of the Zimbabwe Republic Police and is also the investigating officer in the case involving the old committee members.

It is their contention that they did not besiege the office or acted in the manner described. They claimed that the receipt books and all documentations pertaining to the scheme were taken by the police pending investigations.

They denied taking a cash box containing US$23,500. They said by involving the police they did not take the law into their hands. On the contrary, they accused the applicant of taking the law into his hands by approaching this court thereby hampering investigations.

From the submissions, it is apparent that Elinas Gumbo was all along the authorized representative of Izayi Park Housing Scheme. He was a member of the old executive running the offices and affairs of the housing scheme. It is clear that some items were taken out of the offices of Izayi Park Housing Scheme following a meeting held by the beneficiaries on 7 February 2015. The taking was done without the consent of the old executive members. It was also taken without an order of the court.

The respondents managed to file two relevant documents in their opposing papers to support the existence of a new executive committee. They did not file anything to prove that the purported new executive committee was voted into office on 3 January 2015. This they could have done by way of filing the minutes of the 3rd of January 2015 or at least a copy of the agenda of the 3rd of January 2015.

What is attached are minutes of the meeting of the 7th of February 2015. In that minute, it is clear that the old executive members had been given the police clearance by the Dispol to hold the meeting at the same venue. Further, the minutes showed, in clear terms, that the old executive was asked to leave and when some members of the old committee refused to leave a group of male beneficiaries told a Mr Chireya that if he did not leave they could push him to leave. Some ladies, who had umbrellas, threatened to use them to force one Mr Mukura to leave.

This gives credence to Mr Elinas Gumbo's claim that they were threatened with assault and they left the meeting.

The other document is a letter of confirmation of the new executive written by one Arch. P S. Mukura, a Provincial Public Works Director - Midlands dated 9th February 2015 which is addressed “TO WHOM IT MAY CONCERN”.

It is not clear why and at whose instance the letter was written after the meeting of the 7th February 2015. Assuming that a new committee was elected into office on 3 January 2015, that is neither here nor there.

The issue is whether or not the new executive despoiled the old executive.

In my view, the issue to be decided is whether or not the applicant has made a case for spoliation orders. In order to obtain a mandament van spolie the applicant must show that:

(a) He was in peaceful and undisturbed possession of the things; and

(b) He was unlawfully deprived of such possession.

Nino Bonino v De lange 1906 TS 120…,; Burger v Van Rooyen 1961 (1) SA 159 (O); and Scholtz v Faifer 1910 TPD 243…,.

In casu, the applicant had factual control of the project, the offices, office keys, books, and all other belongings with the intention to derive some benefit from them. He was deprived of his possession. The deprivation was done without a court order or other lawful means.

It is trite law that the person who has been deprived of his possession must first be restored to his former position before the merits of the case can be considered. The main purpose of the mandament is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to submit the matter to the jurisdiction of the courts. Peace in a community could not be maintained if every person who asserted that he had a claim to a particular thing were entitled to resort to self-help to gain possession of the thing.

C.G. Van De MERWE and M. J. de WALL – 'The Law of Things and Servitudes'…,.; Curatoren Van “Pioneer Lodge NO1” v C Champion 1879 OFS 51…,; Muller v Muller 1915 TPD 28…,.

In this case, the respondents argued that the things were taken by the police for purposes of investigations and that Izayi Park offices have not been taken over.

I do not agree with that submission.

The mere fact that a police officer “unofficially” sanctions dispossession is not sufficient to legalise an otherwise unlawful act. The police can only search and seize property on the strength of a Warrant of Seizure or other lawful instructions.

In this case, it has not been submitted that the police officer, or officers, who took away the items from the offices did so on the strength of such warrant or court order. Their actions were illegal on the authorities of Potgieter v Du Plessis 1978 (1) SA 751 (NC)…,; Coetzee v Coetzee 1982 (1) SA 933.

As regards both requirements, I am satisfied that the applicant has satisfied them.

The respondents dispossessed the applicant forcibly and wrongfully against his consent. The court, in such a case, will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.

In acting as they did, whether as principles or agents, all the respondents took the law into their own hands. They are guilty of what is called self help. This court must insist on observance of the principle that a person in possession of property, however unlawful his possession may be, and however exposed he may be to ejectment proceedings, cannot be interfered with in his possession except by due process of law. If interfered with unlawfully the court will not condone such interference. It will redress the situation pending the taking of lawful action for ejectment.

In the result, the provisional order is granted in terms of the draft.

SSC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

After hearing counsel in this matter we dismissed the appeal against both conviction and sentence. We indicated that our reasons would follow in due course. These are they.

The appellant was convicted of one count of murder and three counts of assault as defined in section 47(1)(b) and section 89 respectively of the Criminal Law Codification Act [Chapter 9:23].

He was sentenced to 18 years imprisonment in respect of the murder charge. The three counts of assault were treated as one for purposes of sentence and he was accordingly sentenced to 3 years imprisonment which was to run concurrently with the sentence on the murder conviction.

The appellant has noted an appeal against both convictions on all the counts and the sentences.

The events leading to the conviction of the appellant occurred on 23 September 2011. At the time, he was a duly attested member of the Zimbabwe Republic Police holding the rank of Chief Superintendent. He was based at Chiadzwa Diamond Fields where he was the second in command. The police had been deployed at the diamond fields to flush out and arrest suspected illegal diamond panners.

On the day in question, the deceased, Tsorosai Kusena, his brother Onesai Kusena, their cousin Pikirai Kusena and one John Gwite were arrested in the diamond fields by security personnel employed by Mbada Diamonds on suspicion of being illegal diamond panners. They were handed over to the police and detained.

A few hours later they escaped from custody and ran off in different directions. They were pursued and captured.

The appellant was one of the details involved in the pursuit.

Thereafter, the deceased and his companions were returned to the base where the appellant forced each of them to stand on the ground on their heads with their feet in the air. He then proceeded to assault each of them on the small of the back and the buttocks with a switch/baton stick. The assault was sustained and lasted for a considerable period.

After a while, the deceased was no longer in a position to assume the position and collapsed onto the ground. The appellant persisted with the assault on all the victims. Despite his condition and obvious difficulty, the deceased was not spared from this assault.

Sometime in the evening, Mandizvidza, one of the junior officers, took the switch/baton stick from the appellant stopping the assault. He threw the weapon into the fire.

After the assault had been halted, the deceased and the complainants were placed in cells and the deceased was heard to complain that he had been injured badly. He also expressed the fear that due to the injuries sustained from the assault he would not last.

After a short while he was seen to have died.

A post-mortem report, compiled by the pathologist, confirmed that the deceased had bruises all over the back. No other injuries were found. The cause of death was recorded as traumatic shock as a result of assault.

On these facts, the appellant was found guilty of murder with constructive intent.

The grounds of appeal are the following:

AD CONVICTION

(i) The court a quo erred in respect of all counts by failing to attach sufficient weight to the discrepancies that were manifest in the evidence of the State witnesses.

(ii) The court a quo erred in respect of the count for murder in accepting that the cause of death was assault when the doctor who testified told the court that he did not do a full post-mortem (sic). No examination was done to establish if death was not caused by diarrhoea or vomiting which attacked the deceased prior to his death.

(iii) The court a quo misdirected itself by finding the appellant guilty of murder with constructive intent when the evidence before it did not show that the appellant foresaw that death would result from his conduct. The court a quo must have made a finding that the appellant ought to have foreseen that death would ensue.

(iv) The court a quo misdirected itself by rejecting the appellant's evidence that the complainants and some police officers connived to incriminate him yet the complainants themselves told the court that they were tipped off to escape from lawful custody by the police officers who were guarding them.

(v) The honourable court a quo erred by failing to warn itself of the dangers of relying on the evidence of the State witnesses, the majority of whom fell into either the category of suspect witnesses, or outright biased witnesses with a discernible motive to falsely incriminate the appellant.

AD SENTENCE

(i) A sentence of 18 years imprisonment, in respect of the charge for murder, is too excessive in view of the circumstances of this matter.

(ii) The court a quo misdirected itself by failing to treat the three counts of assault as one for purposes of sentence.

As to the first ground of appeal, it was contended, on behalf of the appellant, that the court a quo erred in failing to attach sufficient weight to the manifest discrepancies in the evidence of the witnesses called by the State. It was argued that the evidence of the witnesses, regarding the number of sticks used to assault the deceased and the complainants, was full of contradictions.

We were not persuaded by this submission.

Contrary to the contention by the appellant, the court a quo found that the witnesses all gave evidence that the appellant had used one stick in the assault, which, from the description, could be a thick stick or a baton. In its judgment, the court a quo commented that although quite a number of the witnesses had spoken of the appellant having a number of sticks in his possession, in their evidence the witnesses did not suggest that the appellant had used more than one stick. The court found that they had all maintained that he had assaulted the victims with one stick.

Indeed, this finding is borne out by the evidence of the witnesses.

Onesai Kusena, the complainant in the second Count, gave evidence that the appellant was holding five sticks. In describing the assault on him, he only mentioned one stick as being the assault weapon. He also stated that Mandizvidza disarmed the appellant of the stick he had been using. The appellant had then left with the remaining four sticks.

The complainant in Count 3, Pikirai Kusena, gave evidence to the effect that the appellant used a switch to assault all four of them including the deceased.

John Gwite was the complainant in the fourth Count. Like the other two witnesses, the tenor of his evidence was to the effect that the appellant had used one stick to assault all the victims.

Indeed, the police witnesses also corroborated the evidence of the complainants and confirmed that the appellant had used one stick to assault the victims.

Constable Senda Nkuli stated that the appellant had prepared three switches but he saw him using one. Constable Bhobho confirmed that the appellant had one stick which he took from the vehicle.

It was suggested to him that some witnesses mentioned more than one stick.

The witness was adamant that he had only seen the appellant holding one stick. This witness's evidence is consistent with that of Philleman Manatsa and Edson Mandizvidza. In fact, the last witness disarmed the appellant of the weapon and threw it into the fire.

In my view, the court a quo cannot be faulted in the manner that it considered the evidence of the witnesses on the weapon used to assault the victims. The court was correct in its finding that despite the mention by some witnesses of the appellant having several sticks, the consistent story from all the witnesses was that only one stick was used. All the witnesses stated that Mandizvidza threw the weapon into the fire.

Like the court below, I find no inconsistencies regarding the assault on the four victims.

In relation to the second ground of appeal, it was contended, on behalf of the appellant, that the court a quo erred in concluding that the deceased had died as a result of an assault when the doctor who testified in court admitted that he had not conducted a full post mortem examination.

The postmortem report produced by Dr Kasongo was admitted into evidence by consent.

The doctor gave evidence in support of the report and confirmed that the deceased had died as a result of traumatic shock following an assault. He observed bruises all over the body of the deceased. He indicated that he had not been informed that the deceased had vomited prior to his death. He had also not been informed that the deceased had had a bout of diarrhoea on the night in question. His opinion was that neither the vomiting nor the diarrhoea would have been the cause of death in the case of the deceased. His evidence was that a person would not die after suffering from a bout of diarrhoea for a day unless the diarrhoea was due to cholera. He said that there was no evidence of cholera in Mutare during the relevant period. His evidence was to the effect that it was not necessary, in every case, to conduct an internal examination for a postmortem unless the cause of death is not obvious. It was his opinion that in the case of the deceased it was obvious that he had been severely assaulted.

The Investigating Officer, Musutani Chifumuna, confirmed receipt of a memorandum instructing him to investigate the death of the deceased.

According to the memorandum, the deceased had fallen and hit against a rock as a result of which he sustained injuries leading to his death. According to the witness, an initial examination of the body of the deceased did not show, nor confirm, any injuries consistent with the deceased having fallen as suggested in the memorandum. For instance, there were no injuries to the head, forehead or neck, which injuries one would expect to find in a victim alleged to have fallen as suggested had happened to the deceased in the memorandum.

As a result of the absence of injuries consistent with a fall he decided to examine the body of the deceased. He removed the clothing of the deceased and found the following injuries; namely, bruising on both knees, right shoulder, the region between the buttocks and the back. He observed clotting just under the skin. There were also signs of red and black marks which led the witness to conclude that there might have been internal bleeding or that blood had clotted under the skin. There were blisters on the soles of both feet.

He caused photographs to be taken of the injuries he had observed.

Initially, the death of the deceased was treated as a sudden death, but, after further investigations, it was decided to open a criminal investigation against the appellant on a charge of murder.

The court a quo was alive to the fact that there had not been an internal examination of the deceased, and that the post-mortem report was based on an external examination. The court dealt with that aspect of the evidence as follows:

“The court wishes to take judicial notice of the fact that it is not everybody that is taken for post mortem that a doctor seeks to open in establishing a cause of death. Even if Doctor Kasongo is not a pathologist he compiled a postmortem report.

If the body had been taken before pathologists, where the cause of death is obvious, the issue of opening up for purposes of internal examination is not relevant. Where the cause of death is obvious there really is no need to open the body. It is only where the cause of death is hazy, or in circumstances where chemical situations are alluded to as a cause of death, that internal organs have to be opened up and examined.

In this case, the doctor had been given the history of assault which is supported on the record and he then made his own professional observations leading him to a conclusion as to a cause of death. The other complainants were examined by different doctors who confirmed that they had been assaulted. This tallied with the manner in which Doctor Kasongo compiled the post-mortem, as he also observed injuries on the back and lower back on more or less the same area as the other complainants confirming the area of assault.”

The evidence of the assault perpetrated on the deceased is overwhelming.

It is common cause that when the deceased was arrested he was in good health. He was fit enough to escape from lawful custody together with his companions. Members of the police, which included the appellant, chased them for a considerable distance through the bush. When the deceased was re-arrested he was able to walk, climb into the police vehicle, and disembark without being assisted.

A few hours later he lost his life after the sustained attack by the appellant.

The conclusion by the doctor, that the cause of death was obvious, cannot be impugned and the court a quo cannot be faulted in accepting the conclusion by the doctor that the deceased died as a result of traumatic shock due to the assault.

It is contended, on behalf of the appellant, that the court a quo misdirected itself in making a finding that the appellant was guilty of murder with constructive intent when the evidence before the court did not establish that the appellant subjectively foresaw that death would ensue from the assault of the deceased.

Section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides, in relevant part:

“(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realizing that there is a real risk or possibility that his or her conduct may cause death, and continues to engage in that conduct despite the risk or possibility; shall be guilty of murder.”

In S v Mugwanda 2002 (1) ZLR 574…, CHIDYAUSIKU CJ, in describing the test to be applied in determining the question of intent in a murder had this to say:

“On the basis of the above authorities, it follows that for a trial court to return a verdict of murder with actual intent it must be satisfied beyond a reasonable doubt that:

(a) Either the accused desired to bring about the death of his victim and succeeded in completing his purpose; or

(b) While pursuing another objective foresees the death of his victim as a substantially certain result of that activity and proceeds regardless.

On the other hand, a verdict of murder with constructive intent requires the foreseeability to be possible (as opposed to being substantially certain, making this a question of degree more than anything else).

In the case of culpable homicide, the test is: he ought to, as a reasonable man, have foreseen the death of the deceased.”

In order to prove its case against the appellant, the State called six witnesses to the assault, three of whom were complainants in the assault charges. The other three were police details.

All the witnesses gave graphic details of a horrific assault upon the victims and especially the deceased. The victims were made to stand on their heads. The appellant would then assault each, in turn, with a switch whose diameter was estimated by one of the police details as 3cm or 4cm. This same witness stated that the appellant would direct the assault at the end of the spine, just above the victims' buttocks. He was using severe force. The witness assumed duty at about 6pm. The appellant was already in the process of assaulting the victims. The assault was stopped at about 7pm.

It was only stopped due to the intervention of Mandizvidza, a junior ranking officer to the appellant.

According to the witness, after the appellant left the cells where the assault victims were, the deceased was lying on the floor groaning. He was no longer able to walk and had to be assisted to go outside in order to relieve himself.

The witness was emphatic that the deceased was not, at the time, suffering from diarrhoea. However, he kept vomiting. At times he would heave, without any vomit coming out.

The witness was about to go off duty when he decided to wake up the victims so that he could hand them over to his relief. He attempted to wake up the deceased and realized that he had died.

It was his evidence that all the victims had injuries on the back, knees, and bottom of the feet.

Mandizvidza, the officer who disarmed the appellant, described the switch/baton stick as being between 50 and 70cm in length. He described its diameter as 5cm. He told the court that the appellant had assaulted the victims for a protracted period and was using severe force. The deceased died shortly after he had stopped the assault.

In the post mortem report, the pathologist recorded that he “found bruises all over the body.”

There is no direct evidence of the mens rea of the appellant in this case. Therefore, it cannot be stated that it was the appellant's avowed intent to kill the deceased. As such, the appellant's intent can only be inferred from the circumstances surrounding the offence.

The appellant was a senior police officer at the time that the events leading to the death of the deceased occurred. He was a Chief Superintendent. At the time the appeared in court for the trial he had been in the service of the police for twenty-six years. It is safe to say that he had considerable experience as a police officer.

He confirmed that, as a police officer, he was aware, through experience, of people who had died as a result of being assaulted. Yet, with full knowledge of the consequences that an assault may lead to the death of a victim he subjected the deceased to a sustained assault on the spine.

The evidence before the trial court was that, after a time, the deceased was unable to keep his body in an upright position as demanded by the appellant. He was no longer able to place his head on the ground and was lying on his stomach, unable to block the blows. Still, the appellant persisted with the assault stopping only as a result of the intervention of a junior officer.

The post mortem report speaks to bruises all over the body and it was the evidence of the doctor that an internal examination was not necessary because the cause of death was obvious due to the external injuries he observed.

After the assault, the deceased could not stand, walk, or squat. He had to be assisted in relieving himself.

From the evidence of the State witnesses, it is safe to infer that the reason why the deceased could not stand was due to the fact that his spine had been badly injured from the assault. The appellant ordered his victims to assume a position from which he could inflict the most severe damage to their bodies.

In my view, the appellant must have, and in fact did, foresee the possibility that the assault would result in the death of the deceased.

The court a quo cannot be faulted in its reasoning on intent.

The further contention by the appellant was that the trial court misdirected itself in rejecting the appellant's evidence that there was connivance on the part of the witnesses to incriminate him of the offences. It was suggested that proof of the connivance could be gleaned from the evidence of the civilian witnesses that they had been tipped off to escape from lawful custody by some of the police witnesses.

The complainants to the assault charges all gave evidence.

Their evidence was consistent in so far as it dealt with the assault. The only discrepancy in the evidence was whether the appellant had more than one weapon. Despite this, all of the witnesses, including the police witnesses, stated that the appellant had only used one switch/baton stick in the assault.

Apart from the witnesses to the assault, the State called the investigating officer to testify.

His evidence was clear that the death of the deceased had been reported as a sudden death arising from a fall. The memorandum prepared in relation to the death of the deceased was false. The investigating officer discounted the report and investigated the death as a suspicious death.

The cause of death was obvious.

The appellant was the only person who was seen assaulting the victims and there was no evidence placed before the court a quo of a conspiracy by the witnesses.

The complainants told the court that they had been warned, by some of the officers, to escape because the appellant had a history of assaulting suspects. This warning was confirmed in the actions that the appellant thereafter took. He badly assaulted the suspects leading to the death of one of those suspects.

I find no misdirection.

As for the contention that the witnesses were suspect witnesses and that there was a risk that they would falsely implicate the appellant, I find no substance in the contention.

There is, on record, ample evidence of a vicious assault on the deceased and the other three victims. The medical evidence is on the record. The photographs produced in relation to the assault provide mute testimony of the severity and brutality with which the assault was perpetrated. They capture the horrific injuries sustained by the complainants.

In my view, the reports and photographs confirm, in all respects, the witnesses' evidence of the assaults on themselves as well as the deceased. The doctors who examined the complainants and compiled the medical reports were not known to the complainants or the deceased.

The appellant was not able to give a credible reason why the complainants and his colleagues would conspire to lie against him and falsely implicate him.

All the evidence pointed at the appellant as the assailant.

The fact that the three assault victims were suspected diamond panners cannot detract from their evidence that they were assaulted.

The appellant was not the only police officer engaged in the operation that netted the illegal diamond panners. The charges against the appellant are not related to the panning. The charges relate to the assault on them. There is no suggestion from the appellant that someone else assaulted them.

All he says is that they were never assaulted.

Further, the fact that the other police details could have faced disciplinary charges has no bearing on the cogency of their evidence. The appellant was not the only senior officer at the base, he was the second in command and the appellant has not substantiated his allegation of conspiracy by the witnesses.

I find no misdirection on the part of the court in convicting the appellant of murder with constructive intent.

In relation to the sentence, counsel for the appellant conceded that there was no basis for attacking the sentence imposed. He accepted that the court a quo imposed an appropriate sentence.

The concession was, in my view, proper in the circumstances.

Both grounds of appeal against sentence were not well taken.

The first, that the court a quo misdirected itself by not suspending a portion of the sentence of eighteen years imprisonment on the murder conviction cannot be sustained for the simple reason that the law does not permit the suspension of any portion of such sentence.

Section 358(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides, in relevant part:

“(2) When a person is convicted by any court of any offence, other than an offence specified in the Eighth Schedule, it may —

(a) Postpone for a period not exceeding five years the passing of sentence and release the offender on such conditions as the court may specify in the order; or…,.”

In turn, the Eighth Schedule reads as follows:

“EIGHTH SCHEDULE (Section 358) OFFENCES IN RELATION TO WHICH POSTPONEMENT OR SUSPENSION OF SENTENCE, OR DISCHARGE WITH CAUTION OR REPRIMAND, IS NOT PERMITTED

1. Murder, other than the murder by a woman of her newly born child.

2. Any conspiracy or incitement to commit murder.

3. Any offence in respect of which any enactment imposes a minimum sentence and any conspiracy, incitement, or attempt to commit any such offence.”

Whilst the court a quo had a discretion in the duration of the sentence of imprisonment that it could impose, it had no power to suspend any portion of such sentence.

Turning to the sentence imposed in respect of the three counts of assault that the appellant stands convicted of, it is common cause that the court took all three counts as one for purposes of sentence. It also ordered that the sentence of three years should run concurrently with the sentence in respect of the murder conviction.

The approach of the court cannot therefore be faulted in any way.

It was for the above reasons that we dismissed the appeal in its entirety.

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -

(a) Declaring their arrest and continued detention unlawful;

(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;

(c) Directing the respondents or anyone calling through them or acting on their behalf to produce the applicants before a High Court Judge in Chambers within two hours of the order being made, or, alternatively, take the applicants for a remand at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them or on their behalf shall forthwith release all the applicants from custody and that thereafter no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

They also seek an order for costs on a higher scale.

The application was placed before me through the Chamber Book as an urgent application on 6 November 2008. After perusing the papers, I directed that the applicant serves the application on the respondents as well as on the office of the Attorney-General.

I considered that the matter merited speedy consideration and that the Rules of Court relating to notice be dispensed with in the interests of the rights of the applicants. The matter was to be set down for hearing the next day at 10h00.

The application is premised on an affidavit deposed to by the applicants' counsel, Mr Andrew Mukoni. He makes the following averments:

The applicants are Fidelis Chiramba, Pieta Kaseke, Terry Musona, Fanuel Tembo, Mrs Mutemagau, Mr Manyemwe, Lloyd Tarumbwa and others. The third and fourth respondents are police officers responsible for the arrest and detention of the applicants. The police officers operate under the direction and control of the first and second respondents.

On 3rd November 2008, Mr Makoni was instructed to represent all the applicants. From the information he gathered, the applicants were being dealt with by either CID Homicide Section or CID Law and Order Section at Harare Central Police Station although they had been arrested in places around Banket and Chinhoyi.

Upon visiting CID Law and Order section, the Officer-in-Charge of that section professed ignorance of the matter. When he then visited Homicide section, he learnt that the third respondent was handling the matter. Upon requesting audience with him, the latter was said to be too busy to see the applicants' counsel. He also gathered information concerning the detention of the applicants at various police stations around Harare.

A visit to these stations, however, indicated that the applicants had been released into the custody of the fourth respondent.

He concluded that the police were detaining the applicants illegally for the reason that the 48 hour period permitted at law had long expired. He also believed that the police were holding the applicants in communicado. He feared that the applicants were being subjected to torture, ill-treatment or other inhuman and degrading treatment as access to legal practitioners was being denied. He believed that police had no legal basis for detaining the applicants hence they had failed to take the applicants to court within 48 hours as required of them by law. He believed that the applicants were being subjected to such ill treatment for the purposes of unlawfully extracting from them confessions without legal representation.

He therefore prayed that the applicants be produced at court or be released.

At the hearing, counsel for the respondents indicated that the police did not have the applicants in their custody, and, therefore, were unable to release the applicants. He pointed out that the police deny arresting the applicants as no evidence of such an arrest had been produced by the applicants.

In view of the attitude of the respondents, the matter was postponed to 11 November 2008 to allow the applicants to file further affidavits to address the following questions:

(a) Where are the applicants detained?

(b) What are their detention book numbers, if any?

(c) Under what circumstances were they detained?

(d) On whose authority are they detained?

(e) What are the applicants full and further particulars?

(f) What other persons were arrested and detained under similar circumstances as the present applicants?

(g) What is the registration number or numbers of the vehicles which conveyed the applicants if any?; and

(h) Whether any criminal charges were preferred against any of the detainees.

The respondents, particularly the third and fourth respondents, for their part, were directed to file affidavits answering the allegations raised in the founding as well as the supplementary affidavit.

On 10 November 2008, Mr Makoni filed his supplementary affidavit as directed by the Court. The respondents did not file any affidavit despite being directed to do so by the Court.

In his supplementary affidavit, he makes the following averments at paragraphs 5 and 6.

"5. After the postponement of the matter, I drove to Mabelreign police station in the company of the defence team comprising of myself, Alec Muchadehama and Charles Kwaramba. We gathered the following facts.

Pieta Kaseke, the 7th applicant, was detained at the police station under Detention Book Number I55/0S on the 2nd November 2008. She was booked in by Detective Assistant Inspector Chibaya for Chief Superintendent Makedenge of CID Homicide. She resides at 167 Munashe Street, Kuwadzana Township, Banket. She was released by Detective Sergeant Muuya of CID Homicide on behalf of Chief Superintendent Makedenge. We then visited Avondale police station and discovered that Pieta Kaseke had been detained at the station prior to her detention at Mabelreign police station, She was detained under DB1122/08. She was detained by Detective Assistant Inspector Phiri for Makedenge on 1st November 2008 and booked out on 2nd November 2008. Her whereabouts are still unknown. We believe she is still in the hands of the police with her minor child.

6. At Avondale police station we also gathered that the 1st applicant was also at some stage detained there. He was detained at the station on the 3rd of November 2008 under detention number DB1126/08 and released by Detective Chief Inspector Paradza and Detective Inspector Chibata for C/S Makedenge on the 4th November 2008. His whereabouts are still unknown. We have reason to believe he is still in police custody.

Prior to this detention, he was detained at Rhodesville police station. His detention number at Rhodesville was DB1886/08. He was in these cells on the 31st October 2008 from 09h00 to 15h00 when he was booked out by D/C Muuya of CID Homicide allegedly for CID Law and Order. 1st applicant was again detained at Highlands police station and Borrowdale police station before he was taken to Avondale police station. We failed to get the detention numbers at these two police stations as the police were less co-operative. 1st applicant resides at Number 825 Kuwadzana Township, Banket. His ID number is [number]."

He recites that he ascertained that the third applicant was once detained at Rhodesville and gives his particulars. The third applicant was detained under DB1892/08 at Rhodesville and released by Detective Sergeant Mavunga of CID Homicide on 4th November 2008.

In respect of the rest of the applicants, Mr Makoni says he was unable to obtain any information regarding where they were detained after when they were attested or where they currently were detained. This was in spite of his visiting various police stations around the city like Avondale, Borrowdale, Braeside, Highlands, Mabelreign, Matapi, Mb?r?, Marlborough and Rhodesville. Despite diligent inquiry he was unable to ascertain full particulars of certain of the detainees e.g. the fifth applicant's. He was, however, able to confirm that the applicants were being accused of contravening section 24 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] i.e. training insurgents, bandits, saboteurs and terrorists. He averred that after his discussion on 4th November 2008 with Detective Chief Inspector Paradza, he was under no illusion that all the detainees were held by the police and that Chief Superintendent Makedenge was handling the case.

Chief Inspector Paradza referred all questions to Chief Superintendent Makedenge who refused to entertain counsel.

A further supplementary affidavit was obtained from the first applicant's son, one Ponsiano Chiramba. According to him, police came into their neighbourhood on 30 October 2008 and arrested Larry Gaka, the eighth applicant. No-one had the presence of mind to record the police vehicle registration number.

This occurred at night.

The following day, 31st October 2008, around 03h00, police struck again and arrested his father together with the 2nd and 3rd applicants. His father is the losing senatorial candidate for Zvimba in the March 2008 harmonised elections. He believes the arrests were politically motivated as all those arrested are MDC activists. Police took away his father's fully licensed 303 rifle. His father, the first applicant, is a 71 year old retired police officer.

Ponsiano Chiramba brought food for this father at Rhodesville, and, later, Highlands police stations; but, when he attempted to do the same at Borrowdale he was met with resistance. Police refused to disclose his father's whereabouts saying only that they were under instructions not to divulge such information.

The ninth, tenth, and eleventh applicants were arrested whilst driving from MDC Headquarters in Harare. They are resident in Banket, Their motor vehicle, and themselves, have not been seen since their arrest.

Ponsiano Chiramba was surprised to hear that the police deny any knowledge of the whereabouts of the applicants.

Faced with this evidence, counsel for the respondents reconsidered his position and advised the court, at the resumed hearing on 11th November 2008, that, he was no longer opposed to the granting of the final order sought by the applicants were seeking.

The change in his attitude is not only legally correct but commendable. I say this for the following reasons:

The Republic of Zimbabwe is a signatory to the International Covenant on Civil and Political Rights, 1966 (ICCPR). It acceded to this international treaty. As a State Party to this international human rights treaty, the Republic of Zimbabwe is bound by the international treaty obligations flowing from the treaty.

It may well be necessary to recite the relevant provisions of the International Covenant on Civil and Political Rights, 1966 (ICCPR) here.

Article 9 of the International Covenant on Civil and Political Rights, 1966, provides thus:

“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty, by arrest or detention, shall be entitled to take proceedings before a court, in order that court may decide, without delay, on the lawfulness of his detention and order his release if his detention is not lawful.”

Generally speaking, the treaty places two types of obligations on States:

(i) Firstly, the duty to respect and ensure human rights; and

(ii) Secondly, the duty to guarantee that those same rights are respected.

The first set of obligations is both positive and negative in nature; on the one hand, the State must refrain (whether by act or omission) from violating human rights: and, on the other hand, the State must ensure that, through the adoption of whatever means necessary, such rights can be actively enjoyed.

In fulfilment of the positive duty to ensure the protection, enjoyment, and promotion of the rights set out in the International Covenant on Civil and Political Rights, 1966 (ICCPR), the Republic of Zimbabwe has given prominence to these rights by devoting an important part of its Constitution to these rights (Chapter III of the The Declaration of Rights, sections 11 to 26).

Section 13 of the Constitution of the Republic of Zimbabwe guarantees the protection of the right to personal liberty.

Section 13(3) thereof provides, that, any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which he understands, of the reasons of his arrest or detention and shall be permitted, at his own expense, to obtain and instruct, without delay, a legal representative of his own choice and hold communication with him.

Subsection (4) further provides, that, any person who is arrested or detained, upon reasonable suspicion of his having committed, or being about to commit, a criminal offence; and, who is not released, shall be brought without undue delay before a court; and, if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without any prejudice to any further proceedings that may be brought against him, shall be released either unconditionally or upon reasonable conditions necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.

The meaning of the right, contained in section 13(4) of the Constitution, was considered by this Court in S v Makwakwa 1997 (2) ZLR 298 (H).

The Court noted that section 32(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

"…, a person arrested without warrant shall, as soon as possible, be brought to a police station or charge office, and, if not released by reason that no charge is to be brought against him, may be detained for a period not exceeding forty-eight hours, unless he is brought before a judge or a magistrate, or a warrant for his further detention is obtained in terms of section thirty-three."

The enactment of this provision further demonstrates the State party's commitment to the upholding and promotion of the above rights. The judicial interpretation rendered to it is consistent with the spirit of that treaty.

From the above, it is clear, that, the police, on or about 30th October 2008, took all the applicants into their custody. They were required, by law, to advise the applicants of the reasons for their arrest. The police did not do so - almost 14 days after they effected an arrest!

They were legally obliged to afford the detained persons access to legal counsel as soon as possible. The police did not do so - 14 days after arresting the applicants.

In terms of the Constitution of Zimbabwe, the police were obliged to release the applicants if they failed to charge them with a criminal offence or bring them before a court of law within 48 hours of their arrest.

Again, the police did not do such a basic thing.

When they were sued, the police denied any knowledge of the applicants, when, clearly, they knew, or, ought to have known, that the applicants were being held in their custody.

When I asked counsel for the respondents, at the hearing, why his clients had not indicated some willingness to act according to the law in view of his advice to them, his response was that both the third and fourth respondents had taken leave of absence from their duties. No-one was prepared to deal with the matter.

Such conduct, by the police, ought to be deprecated.

Being officers of this Court, the respondents ought to have known better than to deny such a notorious fact as the detention of the applicants. This denial has placed their counsel in a position where he can hardly oppose the order sought.

The respondents have denied the applicants the protection of the law.

The respondents have permitted the applicants to be detained incommunicado. People are at risk of torture or other forms of ill-treatment if they are detained incommunicado. The risk increases the longer they are held as this allows for a longer period for injuries to be inflicted and visible marks of these injuries to fade.

Further, detainees have a right of access to legal advice without delay.

They should be able to consult with a lawyer, in private, while in custody; to have a lawyer present during interrogations; and to representing them when they appear in court. Lawyers should be able to advise and represent their clients in accordance with professional standards free from intimidation, hindrance, harassment, and without improper interference from any quarter.

This is trite. No authority is required for stating the obvious.

There is one more disturbing feature in this saga.

The respondents have not denied it, either orally through counsel or by their action. It is the detention of a two year old alongside its mother.

It hardly needs me to point out that being a signatory to the Convention on the Rights of the Child; the Republic of Zimbabwe must be seen, through the acts of its public officials, to be protective of the rights of the child.

One of the applicants was arrested and taken away together with her two year old baby. There is no suggestion that the baby was suspected of having committed, or being about to commit a criminal offence at the time.

There appears to be no provision in our law, as it currently stands, as to how the police should deal with such a situation.

Section 135(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] says that when a person under the age of eighteen years of age is accused of any offence other than treason, murder, or rape, any judge, magistrate or police officer who has power under that part to admit the said person to bail, may, instead of detaining him -

(a) Release him without bail and warn him to appear before a court ?r magistrate at a time and on a date fixed by such a person; or

(b) Release him without bail to the care of the person in whose custody he is and warn that person to bring him or cause him to appear before a court or magistrate at a time and on a day then fixed; or

(c) Place him in a place of safety as defined in section 2 of the Children's Act [Chapter 5:06] pending his appearance before a court or magistrate or until he is dealt with according to law.

Section 58 of the Prisons Act [Chapter 7:11] provides, that, subject to such conditions as may be specified by the Commissioner, any unweaned infant child of a female prisoner may be received into prison together with its mother and may be supplied with clothing and necessaries at the public expense provided that when such child has been weaned, the officer in charge, on being satisfied that there are relatives or friends of the child able and willing to support it, shall cause such child to be handed over to such relatives or friends. If he is not so satisfied, shall hand over such child to the care of such welfare authority as may be approved by the Commissioner for the purpose.

Section 84(1) of the Children's Act [Chapter 5:06] provides, that, a child or young person who is charged with an offence shall not, before conviction, be detained in a prison or police cell or lock-up unless his detention is necessary and no suitable remand home is conveniently available for his detention.

It is clear that all three statutes address the position of a child suspected of having committed a criminal offence.

The Children's Act does not expressly address the plight of a baby taken by police who have arrested its mother, but, in my view, the prohibition against detention of minors is implied in this section.

Article 16 of the Convention on the Rights of the Child provides thus:

"Article 16 Protection and Privacy

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks."

In any event, I hold, that, the protection afforded to children is over and above that set out in the Constitution and other statutes.

There is need, however, for the appropriate Act to expressly state this prohibition in clearer terms as it appears a lacuna exists in our law as presently constituted.

The conduct of the respondents, in this case, does not in any way uphold this international obligation to protect and promote the said rights.

It is not sufficient to pass legislation which recognizes the protective rights set out under international covenants and the Constitution as well as other domestic laws, when, in practice, the public face of the State acts in flagrant breach of such protection afforded by the law.

There must be adequate recourse in cases of breaches being proved before the courts.

To subject a two year old to the rigours of detention simply on the grounds that its mother may have committed some criminal offence is totally unconscionable and immoral.

This is made worse by the denial of basic rights to the mother in the present case.

It cannot be over-emphasised that the police can only act within the law. No-one is above the law or below it.

In the present case, the third and fourth respondents have callously demonstrated the affinity to act as if they were above the law.

Despite the fact that I directed that they file affidavits in answer to the allegations personally against them - none were forthcoming. I assume they have nothing to say for themselves in view of their blatant breach of the clear provisions of the law.

I will therefore make findings without having their side of the story since they have declined the opportunity to respond.

The applicants seek an order declaring their arrest and continued detention unlawful. They also seek an order requiring the respondents and all those acting through them or on their behalf to permit the applicants access to medical treatment at medical centres of their choices. Further, the applicants seek an order directing the respondent, or anyone calling through them or on their behalf, to produce the applicants before a High Court Judge in Chambers within two (2) hours of the order being made, or, alternatively, take the applicants for a remand hearing at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them, or acting on their behalf, shall forthwith release all the applicants from custody, and that, thereafter, no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

Because at the end of the hearing there was no opposition to the order sought I am of the view that costs on a higher scale should be reserved for those cases where there is malicious opposition.

Had the applicants sought an order for costs personally against the third and fourth respondents, I may have favourably considered granting it in view of the attitude displayed by the two to the present proceedings.

In the event, I will grant the following final order:

1. The treatment and continued detention of the applicants beyond the statutory 96-hour period be and is hereby declared unlawful.

2. That the respondents, and all those calling through them or acting on their behalf, be and are hereby ordered to take the applicants for a remand hearing at the nearest Magistrates Court at/or before 16h00 on 11 November 2008, failing which the applicants are entitled to their immediate release.

3. In the event of the State deciding to charge the applicants for any offence arising from the allegations presently under investigation, then, the police may proceed by way of summons.

4. The respondents, and all those calling through them or acting on their behalf, shall forthwith allow the applicants access to their legal practitioners, relatives, and to medical treatment at medical facilities of their choice.

5. This order shall stand notwithstanding the noting of any appeal.

6. This order shall be served by the applicants' legal practitioners or the Deputy Sheriff.

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.

The first respondent eventually succeeded him as Chief Marange.

The process of selecting Chikwavadombo's successor was long and arduous. It commenced at about the time of Chikwavadombo's funeral. It remained in place for some eleven (11) years running. It ended with the installation of the first respondent as Chief Marange. The installation took place on 27 October 2016.

The installation of the first respondent triggered the present application.

The applicant alleged that the first respondent was irregularly and improperly appointed to the position of Chief Marange. He said the incumbent Chief [“incumbent”] was imposed upon the people of Marange. The incumbent was, according to him, not the people's preferred candidate for the position. He stated that the people had chosen him, and not the incumbent, to be their Chief. He averred that the second respondent hand-picked the first respondent and imposed him on the people against the latter's wishes.

He moved the court to review the work of the second respondent and set the same aside, and, by implication, remove the first respondent from his position of Chief for the people of Marange.

The respondents opposed the application.

They agreed with the first respondent's in limine matter. They submitted that the court lacked jurisdiction to hear and determine the application. They anchored their argument on section 283 of the Constitution of Zimbabwe.

They stated that disputes which related to the appointment, removal, and suspension of a Chief should be resolved by the third respondent on the recommendations of the Provincial Assembly of Chiefs through the second respondent. They insisted that the applicant should have taken that route instead of approaching the court. He should, they said, have referred his grievance to the Provincial Assembly of Chiefs for dealing.

They moved the court to dismiss the application.

The application is, in my view, against the second, more that it is against the third respondent. The third respondent was not involved in the selection process which culminated in the nomination of the first respondent as the substantive Chief Marange. He was, in fact, presented with a fait accompli. The second respondent, who commenced the selection process and drove it through to the nomination stage of the first respondent, presented the third respondent with a recommendation upon which the latter had to, and did actually, act. He had no choice but to endorse his signature upon the recommendation of the second respondent. The third respondent operated upon the premise that the second respondent, to whom he assigned the Traditional Leaders Act, would not mislead him....,.

On the merits, the applicant gave a clear and concise narration of the events which led to the appointment of the first respondent to the position of Chief Marange. His version was easy to follow. He made every effort to show that he was the preferred candidate for the position of Chief Marange.

He attached to his application the supporting affidavits of nine (9) persons....,.

The supporting affidavits of the nine persons were deposed to on 1 November 2016.

Four (4) of the nine (9) persons did, on 10 January 2017, depose to affidavits in which they denied having ever deposed to affidavits in support of the application. They stated that the signatures which appeared on the supporting affidavits of 1 November, 2016 did not belong to them. They denied having ever appeared before any Commissioner of Oaths to sign the affidavits.

Two (2) of the four (4) did, on 26 February 2017, depose to affidavits stating that their depositions to the affidavits of 10 January 2017 were made by them under duress. They said they were taken from their rural home to Harare where they were accused by an unidentified, physically-imposing man, of undermining the authority of the Government by supporting the applicant. They said they were told to make amends and were given drafted affidavits which they were made to sign and they signed those.

Three (3) of the four (4) did, on 14 March 2017, depose to affidavits in which they dissociated themselves from the applicant's case and cause.

It is evident, from the foregoing, that the deponents were used as a means to an end. They were, no doubt, at the mercy of the applicant and the first respondent. They went along with whoever approached and sought their support.

No weight can be attached to affidavits of persons who swang from one party to the other like a pendilum. The affidavits told a lie about themselves. In telling the lie as they did, they revealed the pressure to which the deponents were subjected in the parties' respective effort to ascend to the throne.

The supporting affidavits which the applicant attached to the application do not, therefore, support anything let alone his case.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

This is an application for rescission of judgment in two matters, HC6627/10 and HC3805/08, brought in terms of Order 49 Rule 449(1)(a) of the High Court Rules, 1971.

The relief sought by the applicant, is for an order in the following terms:

1. The judgments obtained by the 1st respondent against the applicant in case numbers HC3508/08 and HC6627/10 be and are hereby set aside.

2. The title deeds to Stand Number 2819 Bluffhill Township, Bluffhill, Harare which 1st respondent obtained as a result of an order granted to him in case number HC3508/08 be and are hereby nullified.

3. Applicant be and is hereby declared the sole owner of Stand 2819 Bluffhill Township of Bluffhill held under Deed of Transfer number 004804/98 in his favor.

4. 1st respondent and any person claiming occupation through him from Stand Number 2819 Bluffhill Township of Bluffhill be and are hereby ordered to vacate the property within seven days of the date of service of this order.

5. 1st respondent pay costs of suit on a legal practitioner client scale.

In the founding affidavit, the applicant averred that: he is the lawful owner of Stand 2819 Bluffhill Township of Bluffhill, Harare (hereinafter referred to as the Bluffhill stand) in terms of a Deed of Transfer number 004804/98.

On or about 9 April 2007, he discovered that there was construction going on at this property, despite there not having been an agreement entered into by him to sell this property to anyone.

On making inquiry, he found out that the first respondent was responsible for the construction on the basis that he had bought the Stand from “an old man and pensioner, Jonas Mushosho, of Matepetepa in Mashonaland Central.”

During an initial telecommunication with the first respondent, he advised him that he was Jonas Mushosho; but that he had not sold the Bluffhill stand to anyone. The first respondent, in turn, advised him that he had already taken transfer of the property, and referred him to his legal practitioners, Messrs Dinha Bonongwe & Partners.

On his instructions, his legal practitioners wrote to the first respondent, on the 12 April 2007, advising him to cease construction on the Bluffhill stand, and to vacate within twenty-four hours.

He reported the matter to the police who accompanied him to the Stand on 28 April 2007.

On 30 April 2007, the parties met at the Criminal Investigations Department at Ahmed House in Harare. According to the applicant, the first respondent admitted that he did not know him and had never had dealings with him, and that he had been cheated by a person impersonating the applicant - the real 'Jonas Mushosho'.

The applicant averred that the first respondent voluntarily surrendered the keys to the property that he had built on the Bluffhill stand.

Detective Sergeant Rodwell Mwandayi, the Investigating Officer in this matter, deposed to an affidavit on 28 May 2007 in which he confirmed the applicant's version of events.

On 8 May 2007, the first respondent applied for, and was granted a spoliation order in the Magistrate's Court, under case number 3877/07. He attached to that application, an Agreement of Sale entered into by him and Jonas Mushosho, Identity card number NR63-286395 J18, of House Number 37 Matepatepa, Bindura. The agreement is dated 28 June 2006, and it states that Jonas Mushosho was the owner of Stand 2819 Bluffhill, Harare which he sold to the first respondent for ZW$1,2 billion.

The agreement was signed and witnessed before legal practitioners.

Attached to the Agreement of Sale was an affidavit in which Jonas Mushosho confirmed that he had sold the Stand to the first respondent. The affidavit was commissioned before the same firm of legal practitioners. Deed of Transfer number 4804/98 was attached, which showed that the registered owner of the Bluffhill stand was Jonas Mushosho, born on 24 November 1958....,.

The first respondent contended that he was forcibly despoiled of the property by the applicant, and that he was intimidated into handing over the keys to the property, a cottage, that he had constructed and which he was in occupation of.

HHH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

This is an appeal against the refusal of bail (pending trial) in the Magistrates' Court in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the following grounds:

“1. The Magistrate misdirected himself in law in failing to find that 'compelling reasons' demanded by section 50(1)(d) of the Constitution of Zimbabwe, 2013 had not been established by the State, particularly in that:

1.1 There was neither evidence nor any other basis from which it could be said that appellant was likely abscond;

1.2 There was neither evidence nor any other basis from which it could be said that appellant would interfere with witnesses;

1.3 Reference to 'public outcry' is, in itself, never a compelling reason given that it is the people themselves that entrenched a presumption of innocence in the Constitution;

1.4 The State did not address any of the bail conditions offered by the appellant, thereby failing to discharge the onus thrust upon it by law. A compelling reason is one that remains notwithstanding bail conditions.

2. The decision to deny bail, on the basis of the above grounds, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

2.1. No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail could be refused;

2.2. No reasonable Magistrate could have failed to find that the appellant, in the circumstances, met all the requirements set out in law for release on bail.”

The appellant is a former Member of Parliament and Cabinet Minister. He was arrested on 15 November 2017 at his home in Mount Pleasant. He stated that on the night in question, he heard an explosion at around midnight of 14 November 2017 but did not wake up until he had heard the sound of a second explosion which shook his house.

His wife had woken up at the sound of the first explosion upon which she had observed certain persons jumping into the property. The appellant got up to investigate whereupon his bedroom door burst open and 5 to 8 men armed with AK47 rifles burst into the room (who he described as being soldiers), pointed the guns at him, and handcuffed him whilst blindfolding him with his T-shirt.

He stated that the men were dressed in 'military uniform (green camouflage) including shoes.'

The appellant stated that he was forced out of his home, barefooted and blindfolded, and placed lying sideways in a lorry with occupants securing his body, head, and middle to prevent him from wiggling out of the vehicle.

He described that after travelling for about an hour he was interrogated with accusations that he had not run his Ministry (Ministry of Home Affairs) well, with one of the assailants or detainers complaining that the appellant had failed to provide him with a Stand when he was Minister.

He was taken to an undisclosed location and detained there for some days.

He told the court that on the second day of his detention, his captors allowed him to write a note so that they could collect his medication from his home. He also stated that he also requested a shirt and trousers and toiletries. At some point, his captors brought his doctor to attend to him whilst he was so detained.

During his time in captivity, over the next few days, he was interrogated by four to six men about decisions he had taken as Minister of Local Government. He said that he was guarded at all times by two to three people.

He told the court that he was never assaulted by his captors and that they made efforts to meet his requests for provisions because he is diabetic with other illnesses.

The day before he was taken to court, they removed his blindfold and drove him to his home. Upon arrival, the appellant noticed policemen sitting in a car which was parked outside the gate of his house. He told the court that the police who were blocking the entrance to his home, complied with an authoritative request made by his captors for them to move their vehicle out of their way.

His captors dropped him off.

At his house, his abductors allowed him to make a request to his wife to bring him his spectacles. His captors left and the police who were at his house took over and basically ferried him away.

He recalled the specific date of his abduction as being 15 November 2017 because he had attended a Cabinet meeting earlier on the same day. The appellant vehemently denied that he had been arrested on 23 November 2017 which is the date of arrest reflected on the charge sheet. His charge sheet shows that he was arrested on three counts for the following crimes as alleged:

“1. Count One - Section 4 of the Prevention of Corruption Act [Chapter 9:16] - 'Does anything that is contrary to or inconsistent with his duty as a Public Officer.'

2. Count Two - Criminal Abuse of Duty as Public Officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

3. Count Three- Fraud.”

Count One pertained to actions allegedly taken by the appellant in 2004 to 2009. Count Two pertained to alleged criminal acts by the appellant on 13 December 2006 and 25 March 2008. Count Three pertained to a fraud allegedly committed by the appellant between 8 December 2005 to 26 January 2006.

The appellant immediately applied for bail. The State opposed his application on the following grounds:

“1. Considering the seriousness of the offence, and the stipulated sentence if convicted, the accused is likely to abscond so as to evade prosecution.

2. Accused is the former Minister of Local Government who had access and control of the personnel hence the accused is likely to interfere with witnesses.

3. The current political situation is not favourable to the accused's safety. It is therefore proper for the accused to be remanded in custody for his safety.”

The reasons given by the State, both in opposing bail in the court a quo, and in opposing bail on appeal, are not founded in fact.

The court a quo was not furnished with reasons or evidence upon which it could make a determination regarding whether or not the interests of justice would be best served by remanding the appellant into custody.

Section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states as follows:

“117 Entitlement to Bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

No reasons were provided, nor any evidence led in support of the State's grounds for opposing bail. Neither did the court a quo make any enquiry to establish the veracity of the State's reasons for opposing bail, as would have been expected of it, prior to arriving at its determination refusing bail.

The State didn't provide the reason for believing that the appellant would abscond save to just merely allege that the appellant may abscond; neither did it identify which witnesses the appellant was likely interfere with if he was let out on bail.

The court also failed to make an enquiry into the State's allegation that “the current political situation was not favourable to appellant” to the extent that the appellant needed to be remanded in custody.

The State case consisted of mere allegations; and the court misdirected itself in lending credence to those grounds of opposition by simply accepting them without enquiry.

The court a quo grossly misdirected itself in its findings: see Aitken v Attorney-General & Anor v Aitken 1992 (1) ZLR 249 (S); Air Zimbabwe v Phiri 1988 (2) SA 696; S v Ncube 2001 (2) ZLR 556.

The errors and omissions committed by the court a quo, in arriving at its determination to refuse the appellant bail, are so egregious that they warrant me invoking my powers of review in terms of section 27(1)(c) of the High Court Act [Chapter 7:06].

I deem that the proceedings a quo were not in terms of real and substantial justice. The gross errors committed a quo require correcting.

The decision made a quo was unconstitutional to the extent that the court did not observe, as it was obliged to, the provisions of section 50 of the Constitution.

The appellant was subjected to inhumane and undignified treatment at the hands of his captors. He was not informed of the reason for his abduction, at the time that he was arrested in the dead of night at his home, or at any time prior to being brought to court on 23 November 2017.

Contrary to the peremptory provisions of section 50(2)(b) of the Constitution, the appellant was held for far beyond 48 hours in an undisclosed location.

I was troubled by the comments made by the court a quo in remaining complicit with the State's misleading statement that the date of arrest was when the police arrested the appellant, in circumstances where the appellant had been abducted and kept incommunicado by State agents several days before the police 'arrested' the appellant.

It's obvious that the police were in cahoots with the mysterious Sate agents given the fact that they took off where the State agents left off.

The appellant was detained by State agents on 15 November 2017 and only bought before a court of law a whole week later. To that end, the court sanctioned a breach of section 50(5) of the Constitution.

The appellant was kept incommunicado and thus denied his right to remain in communication with family or to consult, in private, with his lawyer or doctor during the period of his detention per section 50(5)(c) of the Constitution:

“(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult, in private, with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material, and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

When looking at the reasoning of the court a quo, in denying the appellant bail, it is my overall view that the court a quo got swept up by the sensationalism of the case and allegations surrounding the appellant's arrest.

The Magistrate lost sight of the fact that she was seized with an ordinary application for bail because she did not deliberate upon the meaning and intention behind section 50(1) of the Constitution which reads:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”

The arrest and detention of the appellant were, in my view, illegal.

The unfortunate and illegal actions which preceded the appellant's appearance before the court a quo, and which illustrate the manner by which the appellant was dealt with by State agents and the police, ran afoul to the presumption of innocence weighing in his favour.

However, as appalling as his treatment was, I am mindful of the fact that the charges would still not have been tainted: see Jestina Mukoko v Attorney General 2012 (1) ZLR 117 (SC).

The appeal before me is for bail pending trial.

In my view, this is a proper case for setting aside the decision of the court a quo on the basis that the court a quo grossly erred in denying the appellant bail.

Accordingly, I order as follows:

1. The appeal succeeds.

2. The appellant be and is hereby admitted to bail on the following conditions stated hereunder:

(a) The appellant deposits an amount of US$5,000 with the Clerk of Court, Harare Magistrates' Court.

(b) The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.

(c) The appellant to report three times a day one between the hours of 6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station, Harare.

(d) The appellant to surrender title deeds to his residential property.

(e) The appellant to surrender his passport and any other travel documents he may possess.

(f) The appellant is not to interfere with witnesses or tamper with evidence.

(g) The appellant is not to visit the offices of the Ministry of Local Government and those of the Reserve Bank of Zimbabwe.

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.

The appellant was convicted after a protracted trial in which evidence was led from several witnesses.

As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court.

It is also important to state the factual background behind the institution of the private prosecution by the complainant's guardian.

When the allegations of rape were made at the police station, against the appellant, the officers who were handling the matter would be transferred, the docket would be referred to such other offices as would give the impression that the appellant could not be prosecuted.

The long and short of the events surrounding the matter is that, ultimately, the office of the Prosecutor General declined prosecution in the matter. It also did not issue the certificate indicating this, as it was obliged to do in terms of the law: see section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9;07].

When the complainant's guardian applied for a certificate to confirm this position, that certificate was not issued as a matter of course.

The complainant's guardian had to seek the intervention of the courts to get the office of the Prosecutor-General to issue the appropriate certificate authorizing a private prosecution of the appellant.

This explains why, even before this Court, the State has folded its arms, when, in normal circumstances, it ought to have vigorously demonstrated, through the office of the Prosecutor General, commitment to the duty to protect, uphold, respect, and defend the rights of a child to equal protection of the law.

Zimbabwe has ratified most, if not all, regional and international treaties and conventions on human rights. These international conventions, which bind the State, spell out obligations of State parties: see the. International Covenant On Civil and Political Rights, 1966; International Covenant on Economic and Social Rights, 1966; the African Charter on Human and Peoples Rights, 1981; Convention on the Rights of the Child, 1990; the African Children's Charter, 1990.

The Constitution of Zimbabwe gives effect to these and other rights either in its provisions or through the legislative framework made thereunder: see sections 56, 68, and 69 of the Constitution; see, generally, the Criminal Procedure and Evidence Act [Chapter 9:07].

One of the important rights enshrined in the Constitution is that of equality before the law.

The complainant had to resort to private prosecution to enforce her rights leading to the present proceedings - without State assistance.

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

This is an appeal against refusal of bail pending appeal by the High Court (the court a quo). The application is in terms of Rule 67 of the Supreme Court Rules, 2018 as read with section 121(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].FACTUAL BACKGROUNDThe appellant was employed ...

FACTUAL BACKGROUND

The appellant was employed by the Zimbabwe National Army under the Presidential Guard Unit. He was arraigned before the Magistrates Court, together with two other accused persons, facing a charge of public violence as defined in section 36 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

He pleaded not guilty and thereafter trial ensued.

It was the State's case, that, the appellant participated in the violence and looting which occurred at Puma Service Station near White House in Harare.

In the State Outline it was alleged, that, the appellant, together with the other accused persons, intercepted a Zimbabwe United Passengers Company (ZUPCO) bus which was on its way to the central business district. Thereafter, they ordered all the passengers to disembark from it. After the passengers had disembarked from the bus, they burnt it. They proceeded to loot shops and pharmacies at the service station where they stole a variety of tablets, a 12-volt car battery, and a blue Yamaha motor bike.

Police raided the appellant's house where they found the motor bike and 17 containers of tablets.

In his defence, he claimed, that, the tablets belonged to his relative who suffered from mental illness as well as HIV. With regards the motor bike, he claimed, that, he had purchased it although he did not have an agreement of sale.

The court a quo found, that, if it was true that the tablets belonged to his relative, the appellant ought to have called them to testify.

It also found, that, the appellant had claimed that there was an affidavit which proved that he purchased the motor bike but he had not produced it.

After evidence was led, the appellant was found guilty as charged.

He was convicted and sentenced to sixty (60) months imprisonment with twelve (12) months suspended on appropriate conditions.

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal to the High Court. Pending the appeal, he applied for bail in the High Court.

The court a quo dismissed the bail application.

It held that there was overwhelming evidence which proved that the appellant had committed the offence thus proving that the intended appeal did not have good prospects of success.

Irked by the decision of the court a quo, the appellant has noted the present appeal.

ANALYSIS OF THE FACTS AND THE LAW

This Court's approach to matters of this nature was stated in S v Chikumbirike 1986 (2) ZLR 145 (SC)…, where BECK JA said the following:

“The next matter to be decided is whether this Court, in hearing the appeal, should treat it as an appeal in the wide sense, that is to say, that it is to be treated as if it were a hearing de novo. Once again, that matter has been decided by the case of The State v Mohamed 1977 (2) SA 531 at 542B-C where TROLLIP JA said that, in an appeal of this nature, the court of appeal will only interfere if the court a quo committed an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision.”

The same point was subsequently made by this Court in Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S)..., as follows:

“While the Judge President, in considering the appeal, was at liberty to substitute his discretion for that of the magistrate on the facts placed before the latter, the present appeal is one in the narrow sense. The powers of this Court are, therefore, largely limited. In the absence of an irregularity or misdirection, this Court has to be persuaded that the manner in which the Judge President exercised his discretion was so unreasonable as to vitiate the decision reached.

See State v Barber 1979 (4) SA 218 (D) at 220E-G; State v Chikumbirike 1986 (2) ZLR 145 (S) 146F-G.

The principle is therefore well established.

It follows, that, in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.”

Both in the court a quo, and before this Court, the appellant makes the argument that since his co-accused was granted bail it follows that he too ought to be granted bail.

The court a quo correctly noted, that, the circumstances of the appellant and his co-accused are different. Evidence was led to establish that the appellant was at the scene of the public violence. He was found in possession of stolen goods, that is, the motor bike and the tablets.

In determining whether the appellant was entitled to bail, it was necessary to determine his prospects of success in the main case.

In the case of Essop v S (2016) ZASCA 114, the court, in defining the term 'prospects of success' held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably conclude different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success; that the case is arguable on appeal; or that the case cannot be categorised as hopeless.

There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

In casu, there is overwhelming evidence against the appellant.

As a result, the prospects of success of his appeal against conviction are slim. The appellant makes the argument that he was an innocent purchaser of the motor bike. Even if the court was to accept that he was an innocent purchaser, he failed to account for the seventeen (17) containers of tablets found in his room.

When the appeal against refusal of bail was being heard, the appellant was asked where he got the tablets from. He said that he purchased them from the pharmacy for his uncle. When asked where the prescriptions for purchasing the tablets were, he replied that they were at home. He however failed to proffer any evidence that the tables belonged to his uncle.

The appeal against sentence also does not have good prospects of success.

The appellant was employed by the Zimbabwe National Army under the Presidential Guard Unit. These are the people whom the public look up to for peace keeping instead of inciting public violence.

Consequently, it cannot be said that the court a quo misdirected itself when it dismissed the appellant's application for bail pending appeal.

The principle that the lesser the prospects of success the higher the risk of abscondment is applicable in this case.

In S v Kilpin 1978 RLR 282 (A), it was pointed out, that, a court may well consider that the brighter the prospects of success, the lesser the likelihood of the applicant to abscond and vice versa.

I fully associate myself with the above reasoning.

The applicant is serving a lengthy sentence, and, if granted bail, might abscond. Due to the gravity of the offence, I find that the appellant might abscond if admitted to bail pending appeal.

In the absence of any misdirection by the court a quo, this appeal cannot succeed. In the result, it is ordered that:

'The appeal be and is hereby dismissed with no order as to costs.'

HB48-15 : EBENEZER TRUST vs THE MINISTER OF LANDS AND RURAL RESSETTLEMENT and P. K. MHLANGA N.O. (as Acting District Lands Officer) and RHODIE MASHINGAIDZE and CHIEF MASUKU
Ruled By: MOYO J

This is an urgent application premised on the principle of mandamus van spolie.

The applicant's case is that he has been in peaceful and undisturbed possession of Maleme Farm in the Matobo District of Matebeleland South Province.

In paragraph 29 of the applicant's founding affidavit he states thus:

“That coercion has become so disruptive that the applicant is unable to continue its activities on the farm and the applicant's employees are concerned about their personal welfare. Since 5 February 2015, the third respondent, and certain individuals acting under him, have performed the following acts:

(a) They entered the farm without applicant's knowledge or consent on numerous occasions.

(b) They have locked pumps with their own padlocks and have stolen the pump's crankshaft. The applicant has over US$200,000 worth of chickens which require water.

Without a method of watering the said chickens, the birds will die.

The applicant, and the students at the training institute, have vast market gardening projects which require water.

As the area is arid, without an adequate supply of water, all of those projects will be destroyed.

Already, three hectares of cabbage seedlings have been lost which would have returned USD$15,000 and one hectare of tomatoes has been lost with the value is USD$20,000.

(c) Additionally, the said persons also locked up the gates to my farm with their own locks in an attempt to prevent anyone from entering or exiting the premises.

(d) The third respondent, and those acting under or through him, have instructed my workers to stop working and vacate the property. They have threatened applicant's workers with physical harm if they do not stop.

(e) On the 6 of February 2015, the said persons occupied my homestead and also took occupation of the applicant's office located on the property. The same people have started harvesting and selling the produce that the Trust and the communities were cultivating.”

The applicant approached this court for a spoliation order on an urgent basis for the aforestated reasons.

The background of the matter is that the land in dispute is owned by a Trust and although it was gazetted in 2003, the applicant has been allowed to remain in occupation of the remaining extent of the farm after new farmers were given other lots that were taken off the farm.

There has been numerous agreements and co-operation agreements between the Government of Zimbabwe and the applicant which does community work and assists the community in many different farming projects as well as the running of an agricultural training institute within the same farm.

The fourth respondent, Chief Masuku, advised the court that indeed he was part of a District Lands meeting way back after the farm had been gazetted, which saw it fit to leave the applicant on the farm as the community was benefitting immensely from the Trust.

The third respondent's case is that he was allocated this farm which was gazetted in 2003 and he has attached an offer letter dated 3 December 2014.

In his opposing affidavit, the third respondent states thus:

“Paragraph 5:

I deny this paragraph in its entirety as applicant has chosen to ignore the truth and seek to mislead the court. The whole of Maleme farm was gazetted in 2003 as shown by a copy of the Government Gazette annexed hereto as Annexure F. It was then divided into 5 subdivisions as shown on the map by a copy of the map obtained from the lands office annexed hereto as Annexure G. The training institute which applicant alleges I have been disrupting is in subdivision 4 which I occupy; for the record, I wish to point out clearly that since 5 February 2015 I have been in peaceful occupation of subdivision 4 of Maleme Farm, and have not in any way disrupted or interfered with the activities of Ebenezer training institute. The subdivision I occupy has fields which have tomatoes and butternuts, I have allowed the applicant's workers to continue harvesting same.”…,.

It is important to note, at this juncture, that the third respondent does not tell this court that he moved onto the piece of land with the applicant's consent – No.

He also tells us that the land he moved into has the applicant's tomatoes and butternuts.

By his own admission, the third respondent has disturbed the applicant's peaceful possession of the land in question.

He goes on, at paragraph 15, and states thus:

“Applicant is being economic with the truth, I peacefully occupied my allocated portion with the assistance of the police. As alluded above, I have also allowed applicant time to harvest his produce. I have also assured him that as long as him and his workers co-operate he will harvest all his produce.”…,.

The third respondent moved in with the assistance of the police.

This, in a way, confirms that the applicant was ordered to accept the third respondent's occupation of the farm.

The police, whilst they are law enforcement agents, they do not define rights nor constitute due process. They enforce rights that have been defined by a court of law, and, in my view, they cannot, where there is a dispute with regard to occupation of a piece of land, start defining the rights of the parties pertaining thereto - that is for the courts.

HHH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man. He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

In exhibit 1, the first accused admitted to murdering the missing man.

He was wearing a white shirt, blue work-suit tied to his waist and a black pair of trousers and black gumboots, a khaki cap and had a sack with loose tobacco and half bar of soap.

He regarded him as the spy from Billabonge Farm on a mission to entrap him for the theft of aluminium pipes.

The man pretended to be returning to Nyamaropa but took the Billabonge road after Accused 1 went out of sight.

He related the weapons he used on the missing man and the injuries he sustained.

He stated how the missing man reached Chemhanza Hill and how and when he died.

He described how the missing man came to be a pile of bones and ashes on the hill slopes and in the cave.

He stated what became of his pot.

The first accused indicated, during confirmation proceedings, that, he sustained injuries on his ankles from leg irons and on his back from assaults perpetrated by members of the CID.

The magistrate, nonetheless, confirmed the statement after the accused maintained that these assaults had not influenced him to make the statement.

The second accused gave a more detailed statement.

He admitted the charge. His confession followed the general outline of his co-accused. He described where and with whom he found the missing man and his attire of a white shirt, grey pair of trousers, and black gumboots. He related his weapons of choice and the injuries sustained by the missing man. He stated how he died and the fate that befell his remains and pot.

The two detective sergeants were subjected to searching cross-examination.

They disputed ever subjecting the accused to torture and assault but admitted conducting intensive interrogation which elicited contradictory versions from the two.

They averred, that, the invitation extended to the Village Head and his aide for indications was in accordance with the tenets of community policing which encouraged the police to involve local leaders in policing areas under their jurisdiction.

They disputed being present in court when the warned and cautioned statements were confirmed.

The Versions of the Accused Persons

In his Defence Outline, the first accused stated, that, the man who came to collect the pot went to his homestead while he went to protect his crops from marauding baboons.

He averred that both the indications and confirmed warned and cautioned statement were induced by physical assaults and torture. He described how the detectives assaulted him and his co-accused on the back and under his feet with baton sticks, planks, and open hands and on his testicles with rubber bands causing them to swell and pass blood stained urine for a period of three (3) weeks for which he was treated at Parirenyatwa Hospital.

In his evidence in chief, he intimated that he spent the whole of that Sunday in his field and was not at the tuck shop.

He voluntarily surrendered himself to the police, was detained, and intimidated by Detective Sergeants Mutambi, Karemba and Charuma in a room with blood-stained walls.

He was then placed in leg irons and ordered to squat. A metal rod was placed under his knees. He was lifted and placed on a table and hanged upside down. He was swung on this bridge and hit under his feet and back. He was shot on his testicles with rubber bands.

The ordeal lasted for about 45 minutes.

He was dumped in the holding cells. His co-accused was taken to the same room and underwent the same ordeal.

He was treated for leg and back injuries at Bindura Prison.

Thereafter, he signed the document that was placed before him without any further ado.

The court record from Bindura Magistrate Court shows, that, they were both placed on initial remand and advised to apply for bail at the High Court on 17 March 2010 and did not register any complaints against the police. They were remanded in prison custody from where they returned to court on the following day for the confirmation of their statements. He did not advise the magistrate of his ordeal in fear of the threats that had been issued against him but admitted making the statements of his own free will.

In regards to the indications, he intimated that he was forced to pose for the pictures in exhibits 10 to 16 by the photographer and that exhibit 3, the smashed pot photographed in exhibit 15 was run over at and collected from his homestead and planted on the hill by the police on the day they went for indications.

He said he was assaulted during the indications.

He averred the deceased's wife, had, on an earlier occasion, rejected exhibit 3 as her pot.

He conceded that he was at the tuckshop when the man described by Pias Muchambo came but identified him as a Mr Foya of Chemhanza Village. He had a dispute with him over the length of a hose pipe he had purchased from him, which was resolved by his co-accused who took them to his garden to measure it.

He admitted, in cross examination, that the pot was collected from his homestead but denied any knowledge of the deceased.

Contrary to his insistence that he was treated at Bindura Prison, the Assistant Principal Correction Officer in charge of clinic records at that prison did not find any record of the treatment. He however produced exhibit 18, an extract of the treatment received by Accused 2 at that prison.

The second accused categorically denied any knowledge of the deceased.

He participated in the search of the missing man together with other youths. The missing man's family was led by a spirit medium, which focused the search around the first accused's garden and homestead. He believed that the spirit medium led the police to Chemhanza Hill.

He described the bridge technique torture he underwent at the hands of the investigating team after he voluntarily surrendered himself to the police. He was hit by baton sticks under his feet and by a soft drink bottle on the knees and ankles and by a plank on his back. He was also shot on his testicles with rubber bands.

He admitted to the offence to stop the torture.

His version, in regards to how they went for indications, was similar to that of his co-accused.

The pot, exhibit 3, and flattened tin, exhibit 8, both photographed in exhibit 15 were collected from the first accused's home and planted at the scene.

He was forced to hold a stone while his picture was taken at Chemhanza Hill in a bid to dramatize the situation.

He suspected the police made a prior visit to the scene on the day they arrested his mother and young brother.

He stated that the indications were choreographed and the photo sessions stage-managed by the investigation team.

He further stated that he admitted the contents of the confirmed statement before the magistrate in order to forestall any possible torture that would have followed his denials.

He was treated in prison for assault injuries recorded in exhibit 18, the outpatients register held at Bindura Prison that was produced by the nurse in charge of the prison clinic, Assistant Principal Correctional Officer Norman Kusosa.

The accused was examined on 17 March 2010 by Chigumete, a nurse based at the prison at that time. He complained of a painful right leg arising from an assault by CID and had a wound on the right limb arising from assault. The nurse noted “one wound on limb due to assault.” He administered some aspirin and cloxa tablets and applied betadine dressing on the wound.

The diagnosis and medication showed that the second accused was treated for what he alleged were assault injuries....,.

The conduct of the investigation team was the subject of strident criticism by both counsel for Accused 1 and counsel for Accused 2.

They submitted, that, the accused persons were subjected to intense torture and assault between the period they handed themselves to the police and the time they were taken for indications.

Counsel for the State submitted, that, the indications were conducted and the warned and cautioned statements recorded freely and voluntarily without any undue influence having been brought to bear upon each of the accused persons.

It was common ground that the warned and cautioned statements, exhibits 1 and 2, were confirmed. They were accordingly admitted in evidence in terms of section 256(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07], which read:

“256 Admissibility of confessions and statements by accused

(1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not: Provided that —

(i) A certified copy of the record produced in terms of subsection (1) of section 115B shall be admissible in evidence against the accused;

(ii) Any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be inadmissible.
[Subsection amended by section 19 of Act 9 of 2006.]

(2) A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:
Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and, if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The confirmation tended to portray the two detectives as credible witnesses in regard to how the statements were recorded. The onus of establishing, on a balance of probabilities, that the statements were not made freely and voluntarily, even though they were confirmed, lay on each of the accused persons.

The accused alleged that they were stripped of their clothing and taken to a room that had splurges of what they were informed was human and not animal or fowl blood on the walls. They were each in turn subjected to the bridge torture technique.

This method involves first tying the victim's legs together, preferably with handcuffs. The victim is forced to squat and an iron rod, which is able to hold his weight, is inserted underneath his knees. He is then lifted upside down by the rod and hanged between two tables. The two tables and the rod mimic a bridge, hence the name. The hanging causes an abnormal flow of blood to the head and face and disorientation to the victim.

The accused persons averred, that, in that helpless state they were each subjected to painful and indiscriminate assaults under their feet and on their backs, and, for Accused 2, on the ankles and knees by all manner of weapons that included baton sticks, planks, and soft drink bottles and shot on their testicles by rubber bands.

Thereafter, they were driven to Accused 1's homestead where police ran over the black pot, exhibit 3 and the flattened tin exhibit 8 and collected them before driving them to Chemhanza Hill.

On the following day, they readily signed the documents that were place before them.

They were taken to Court on 17 March 2010. They did not disclose to the remanding magistrate that they had been assaulted by the police. They were remanded to prison and asked to apply for bail at the High Court.

On 18 March 2010, they returned to Court for the confirmation of their statements. They had been warned of the terrible consequences that a rejection of the statements in court would evoke, so they readily went along with the ministrations of the confirming magistrate.

In their respective evidence, and under cross-examination, the two detectives who testified disputed the allegations of torture and assault and maintained that they questioned the two intensely and separately until they confessed the crime.

Their breakthrough came when the two gave conflicting versions on whether they had dealt with the missing husband on the fateful Sunday or not. All resistance broke down when each was confronted with their respective inconsistencies.

We were satisfied, that, the two accused persons established, on a balance of probabilities, that they were assaulted by the investigation team before they went for indications. They, however, failed to establish that they were tortured using the bridge method.

The injuries they described to the confirming magistrate, and Bindura Prison nurse, were disproportional to the brutal assaults they ascribed to the bridge method. Their legal practitioners did not articulate both the bridge torture technique and the detailed brutal assaults attributed to this torture method to the two police detectives during cross examination. The accused persons also failed to properly describe the torture method in question.

We were however satisfied that they were still smarting under the effects of the assaults they described to the magistrate and prison nurse when they made their warned and cautioned statements and appeared for confirmation. Our satisfaction was derived from three factors:

(i) The first was that they informed the confirming magistrate that they had injuries sustained in police custody.

In respect of the first accused, the confirming magistrate cryptically wrote that he sustained injuries “from the handcuffs and on the back assault from CID but this did not affect my statement.”

In respect of Accused 2, he wrote that the injury “was because of the leg irons.”

In our view, the confirming magistrate abdicated his responsibilities towards the accused persons and the criminal justice system.

These responses should have served to alert the confirming magistrate of the dangers of confirming these particular statements without investigating the circumstances in which the handcuffs and leg irons caused these injuries.

It is a notorious fact that leg irons and handcuffs do not normally cause injury unless they are deliberately tightened by the handcuffing officer.

Our view is that the deliberate tightening of handcuffs or leg irons is inconsistent with the exercise of volition.

Our view is that the injuries were, in the main, caused by the tightening of the leg irons on each accused person.

Assaulting a suspect is not only a crime but does negate and undermine the voluntariness of any resultant confession. After all, it is illogical to assault a suspect who is admitting the charge.

The suspicion of the magistrate should have been further aroused by the caveat advanced by the first accused, that, despite the assault, he freely made the statement.

The evidence of the Assistant Principal Correction Officer in charge of Bindura Prison Hospital, and exhibit 18, clearly demonstrated that the second accused was treated for assault injuries at Bindura Prison.

However, the injuries, in our view, were consistent with tightened leg irons.

Thus, even though he did not find any reference to the treatment administered on Accused 1, we were satisfied that both of them were assaulted in the same way.

It is for these reasons, that, we were satisfied that the confessions that led to Chemhanza Hill and the recording of the warned and cautioned statements, and the confirmation proceedings, were extracted through these assaults.

We did not believe the investigations team's platitudes of innocence. They were incredible and untruthful witnesses in this regard.

We will therefore disregard the contents of the confirmed warned and cautioned statements in our determination of whether or not the accused persons committed the offence they stand charged with....,.

In our law, confessions that are extracted and extra curial statements that are made through unlawful means are inadmissible in evidence.

The police must obey the law, and, all statements made, whether confirmed or not, outside the strictures of the law are illegal and should not be considered by a court as evidence against the maker.

The law prohibits us to consider exhibits 1 and 2 as evidence against the accused persons, however self-incriminating they may be against them.

However, section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] admits into evidence anything that was pointed out by any person under trial even though the pointing out was in consequence of an inadmissible confession or statement. The section provides that:

“258 Admissibility of facts discovered by means of inadmissible confession

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

We were mindful of the construction rendered to this section by McNALLY JA in S v Nkomo 1989 (3) ZLR 117 (S)…,.

We did not find that the assaults that they were subjected to amounted to torture.

HHH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

HHH15-10 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

In this case, the State is seeking the impeachment of its main witness, one Michael Peter Hitschman, in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the grounds that the witness has materially departed from his previous statements.The section provides that:"316 Impeachment and support ...

The section provides that:

"316 Impeachment and support of witness credibility

It shall be competent for any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of that party in any manner and by any evidence in and by which, if the proceedings were before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever:

Provided, that, any such party who has called a witness who has given evidence in any such proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such proceedings, adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent."

It is trite and a matter of elementary law, that, a party calling a witness may not contradict, discredit, or challenge its own witness's evidence unless that witness has been declared a hostile or adverse witness by the court. If, however, any authority is required for that proposition of law, one need not look further than the case of S v Mazhambe & Ors 1997 (2) ZLR 587.

JW HORN, in his article, Discrediting One's Own Witness, published in the Rhodesia and Nyasaland Law Journal 1961…, defines an adverse witness in the following terms:

"An adverse witness is one who shows himself to have a mind hostile to the party calling him, or to the interests of such party. Such hostility may be inferred from one or more of the following: his demeanour in the witness stand, his relationship with either party, his previous conduct, or the fact that he has made a previous statement inconsistent with his evidence."

Having said that, the learned author proceeds to say, that, once a witness has been declared adverse, the party calling the witness is free to cross-examine him.

Where the witness gives evidence which is inconsistent with a statement made by him previously, the party calling him may prove such statement.

The nature of the previous statement takes many forms. The learned author states that:

“5. Such a statement may be oral, or written, and need not have been made to the party calling the witness, or for the object of being used in the proceedings in which the witness is testifying.

6. The witness should be given sufficient particulars of the alleged statement to designate the occasion upon which it was made.

7. The witness should then be asked whether he admits to having made a statement on the occasion specified. If the statement is signed, he may be asked to admit or deny his signature.

8. The previous statement must be shown to be inconsistent with the testimony of the witness by the party desiring to produce it. Any statement, or part of any statement, which would be inadmissible if led as evidence cannot be relied upon to show such inconsistence.”

The facts giving rise to these impeachment proceedings, are, to a large extent, common cause.

The brief undisputed facts are, that, on 6 March 2006, the witness was found in possession of a large quantity of firearms, ammunition, and arms of war. He was then arrested and detained, together with the recovered weapons and ammunition, at Adams Barracks, by a group of State agents comprising the police, army, and CIO personnel. He was later transferred to police custody on charges of insurgency, terrorism, sabotage, and unlawful possession of firearms.

While under detention, the witness made certain written statements and indications.

On 7 March 2006, he made a hand written statement at Adams Barracks, and, on 11 March 2006, he made a typewritten affidavit at CID offices.

The witness also made indications which were captured on video tape at Adams Barracks.

In all those statements and indications, he confessed and admitted having committed the offence in collusion with others - including the accused. He implicated the accused, alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that, he made the said statements and indications to State authorities. He however placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause, that, when the witness made the said statements and indications he had not been properly warned and cautioned.

The handwritten statement was not signed or witnessed by anyone.

The witness told the court, that, his tormentors were drunk and disorderly, such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition.

The witness was subsequently charged with substantially the same charges as the accused. He appeared before CHITAKUNYE J whose verdict reads as follows;

"From the above, this court is of the view, that, the accused cannot be found guilty of the main charge. He (is) found not guilty and acquitted on the main charge. He is, instead, found guilty of the possession of dangerous weapons in contravention of section 13(1) of POSA."

He was then sentenced to four years imprisonment of which one year was suspended on appropriate conditions. He has since completed serving the prison term although he has an appeal pending in the Supreme Court.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, the witness responded by delivering to the Attorney General an affidavit in November 2009. In paragraph 12 of that affidavit, he absolves the accused of any wrongdoing or complicity in the commission of any related charges. In paragraph 12 he had this to say:

"Consequently, therefore, and as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr Leslie Roy Bennett who was not involved in my firearms business or in any dealings I had with firearms. In any event, I do not believe that I have been validly subpoened, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009."

Despite his protests, the witness attended to give evidence as a State witness at the accused's trial.

It is also common cause, that, the Attorney General called the witness to give evidence with the full knowledge that he was likely to give evidence adverse to the State case.

Not surprisingly, when he appeared in court, the witness gave evidence which is unfavourable to the State case and heavily leans in favour of the accused.

It is on that basis, that, the State put in motion these impeachment procedures.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness.

It is not in dispute that both statements and indications were made at the instance of State authorities.

It is a legal requirement, that, the police must properly warn and caution an accused person before asking him to make a statement for production in court.

It is also common cause, that, the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial.

It follows, as a matter of common sense, that, if the statements and indications were inadmissible against the witness, they were equally inadmissible against his alleged accomplice, that is to say the accused.

Having examined the statements and indications in question, I have no doubt, that, they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness, but, as an accused person pending his own prosecution.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

"259 Confession not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person."

The section is couched in simple, clear language such that it needs no further elucidation. It constitutes a prohibition thereby making its provisions peremptory and absolute.

I accordingly hold, that, the statements and indications in question, if tendered as evidence, will be inadmissible against the accused.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues....,.

RESPONDENTS NOTICE OF OPPOSITION

There is no real objection by the respondents to the applicants claim.

The respondents objection, in varying language, is to the effect, that, there has not been a violation of the applicants rights by the respondents. The respondents argument is that the gazetting of the Bill envisaged by section 210 of the Constitution takes time and that due diligence requires the process not to be rushed.

Therefore, the respondents, in substance, are not opposed to the gazetting of the Bill.

If anything, they affirm the need to honour constitutionally created obligations such as section 210 of the Constitution.

On the other hand, the applicants insist on the need for prompt adherence to constitutionally-created obligations by the respondents in line with the Constitution. This means the enactment and promulgation, by the respondents, of the Act envisioned by section 210 of the Constitution within a reasonable time....,.

WHETHER THE DELAY IN ENACTING THE LAW IS UNREASONABLE

Section 210 of the Constitution, quoted verbatim, reads as follows:

“210 Independent Complaints Mechanisms

An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

The section is in clear and unambiguous language, couched in peremptory language.

The provision of an effective and independent mechanism for receiving and investigating complaints from members of the of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct, must be empowered by an Act of Parliament.

Section 210 of the Constitution does not specify the timeframe within which the Act must be enacted and promulgated. Section 324 of the Constitution, however, requires that all constitutional obligations must be performed diligently and without delay.

The South African Constitution contains a similar provision which was subject to interpretation in the case of Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC). The South African Constitutional Court, in interpreting the equivalent to section 324 of the Zimbabwe Constitution, had this to say:

“…,. good governance and social trust are premised, at least partly, on reasonable responsive decision making.”…,.

Reasonable and responsive decision making is therefore what is contemplated in section 324 of the Constitution. The question arising is whether a reasonable time frame has been exceeded since the inception of the Constitution.

Section 210 of the Constitution came into effect on the day the President elected, under the Constitution in the first elections, assumed office: see paragraph 32 of the Sixth Schedule of the Constitution.

The President of the Republic of Zimbabwe assumed office on 22 August 2013. If one is to calculate the time, from 22 August to date of filing of this application, on 15 October 2015, a period of twenty seven months two weeks had elapsed, or slightly over two years; and, if the time taken into reckoning is the hearing date, then, as already noted, the period would be less than two years and a half – hardly sufficient to support a finding of undue delay.

However, one must be alive to the fact, that, up to date, more than seven years later, the Act in question has not been enacted.

The Constitution is clear on the point, that, all constitutional obligations must be performed diligently and without delay. In answering the question whether or not the respondents have failed in discharging their constitutional obligation without delay, regard must be had to the process of the origination of Bills.

Public Bills generally go through preliminary stages before they are brought to Parliament. The responsible Minister first presents proposals to cabinet. Once cabinet is satisfied that the proposals are in line with Government policy, the responsible Minister is directed to prepare a draft Bill along agreed lines. The Legal Drafting Department in the Attorney General's office prepares a draft Bill for consideration by the Cabinet Committee on Legislation. Once the Bill has been approved by Cabinet it is then published in the Government Gazette, about fourteen days before its introduction in Parliament.

The process described above relates only to Bills introduced by members of the Executive.

Private members Bills have to be brought in by motion. If that motion is approved by the House, the Bill is then printed and introduced in Parliament.

One should also note that a Bill can also be introduced in Parliament by a Minister responsible for a particular Ministry.

The first respondent is one such Minister who may introduce a Bill in Parliament.

The Bill envisaged in section 210 of the Constitution has not yet been introduced in Parliament, let alone gazetted. What has been filed of record is what the respondents term a “working document” which ex facie are notes on the alignment of laws to the Constitution focusing on section 210 of the Constitution.

Although the process of how proposals become Bills is largely shrouded in secrecy, L. MADHUKU 'Introduction to Zimbabwean Law' enumerates stages of a Bill before it is gazetted and introduced in Parliament. The stages are stated hereunder:

“1. Cabinet makes a policy decision that a certain law is to be made.

2. The decision is communicated to the relevant government department by the relevant Minister. It must, in turn, prepare a set of detailed principles to govern the legislation.

3. These principles are sent to the Cabinet Committee on Legislation (CCL). This is a sub-committee of cabinet tasked with supervising legislative drafting. Its function is to debate and approve the principles in the light of policy spelt out by the full cabinet.

4. From the Cabinet Committee on Legislation (CCL), the principles are sent to the Attorney General's Office, where a drafts-person is appointed and assigned the role of drafting the piece of legislation. He or she must work in constant consultation with the relevant Government department.

5. When the department is satisfied with the draft, it sends a draft Bill, together with an accompanying memorandum, to the Cabinet Committee on Legislation (CCL), which must scrutinize it in light of the principles and the policy articulated by the full cabinet.

6. After approval by the Cabinet Committee on Legislation (CCL), the Bill may either be sent to the full cabinet, in case of important or controversial Bill, or to Parliament, if the CCL has been mandated to follow that route.”

Subsequently to the above noted stages, the Bill is then introduced to Parliament by the relevant minister after it is gazetted.

Paragraph 3(c) of the Fifth Schedule to the Constitution mentions who may introduce a Bill to Parliament. The section provides that:

“Any Vice-President, Minister or Deputy Minister may introduce into motion for debate in or present any petition to either the Senate or the National Assembly.”

After the introduction of the Bill to Parliament, the Constitution and Standing Rules and Orders of Parliament provides the procedure to be followed until a Bill is assented to by the President to become law. Paragraph 5 of the Fifth Schedule of the Constitution sets out how the transmission of Bills between Houses happens after their introduction to Parliament.

What is pertinent to note is that the process, starting from when a Bill is introduced in Parliament, is beyond the control of the respondents. The respondents do not have powers to control what happens in Parliament.

It is the lack of diligence during the pre-Bill stage that the applicants take issue with.

Although the Constitution is silent on the exact timelines within which the Act envisaged in section 210 of the Constitution should be enacted, the same Constitution requires all constitutional obligations to be performed diligently and without delay.

A period of over seven years has passed since the coming into force of the Constitution.

That period of time, in my view, exceeds reasonable time within which the respondents should have discharged their constitutional obligation. Good governance and social trust are premised, at least, partly, on reasonable, responsive, and forthright decision making.

The crafting of section 210 of the Constitution is peremptory.

The Constitution is the conscience of the nation and the courts are its guardians or custodians: see case of South African Revenue Authority v Commissioner for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.

On this Court's shoulder rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised and protected.

Whilst the court remains alive to the fact that coming up with Bills or legislation does not happen overnight, one can take judicial notice of the shortest timelines within which a Bill can take from its formulation to it becoming an Act. The Labour Amendment Act of 2015, for example, took less than thirty days from its formulation to its promulgation.

The respondents failure, to present a Bill before Parliament for a period in excess of seven years therefore constitutes an unreasonable delay.

WHETHER THE REQUIREMENTS FOR A MANDAMUS HAVE BEEN SATISFIED

The applicant, in his draft order, is also seeking a mandamus to the effect that the respondents be ordered to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty-five days from the date of this order.

A mandamus is a judicial remedy available to enforce the performance of a specific statutory duty or remedy the effect of an unlawful action already taken: see the case of Oil Blending Enterprises (Pvt) Ltd v Minister of Labour 2001 (2) ZLR 446 (H)…,. The Court in Nkomo & Anor v Minister of Local Government…, stated:

“…, it was within the powers of a court before which a constitutional matter is argued to grant, in an appropriate case, a mandatory interdict or mandamus. While not necessarily bound by them, the Court is generally guided by common law principles relating to interdicts.”

The requirements to access the judicial remedy were spelt out in the case of Setlogelo v Setlogelo 1914 AD…,.The Supreme Court of Zimbabwe noted with approval the requirements of mandamus in the case of Tribatic (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S)…,. The requirements the applicants must prove for a mandamus are that:

(1) A clear or define right –this is matter of substantive law.

(2) An injury actually committed or reasonable apprehended - an infringement of the right established and resultant prejudice.

(3) The absence of a similar protection by any other ordinary remedy.

With regard to the first requirement, according to HERBSTEIN & Van WINSEN “The Civil Practice of the High Courts of South Africa” 5th Edition…, whether the applicant has a right is a matter of substantive law. The authors state that one has to prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law.

The applicants right is derived from Constitutional Law.

Section 167(5) of the Constitution gives the applicants a right to enforce compliance with section 210 of the Constitution to ensure that the Act contemplated by the section is enacted. The applicant's rights also arise automatically, in law, through section 210 of the Constitution.

According to the authors, HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed, it is unnecessary for the applicant to allege any facts in order to establish the rights, when a right arises automatically at law, moreso in the case of constitutional rights.

In that regard, the first requirement for a constitutional mandamus has been established.

The second requirement, as noted earlier, is that injury must actually have been committed or reasonably apprehended.

The authors, HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed…, state that injury must be understood in the wide sense. According to them, the harm must be caused by the respondent; alternatively, the prevention of the harm must be within the respondent's power.

It is pertinent to note, that, the respondents are in a position to enact and promulgate the Act envisaged by section 210 of the Constitution. The perceived injury or harm, for the purpose of the mandamus being sought, is to curtail the further delay by the respondents and to compel them to put in motion and complete its part in the formulation of a Bill to satisfy section 210 of the Constitution.

The continued delay by the respondents, to formulate a Bill for consideration by Parliament, constitutes the reasonable apprehension on the part of the applicant that the delay may persist.

The third requirement to granting a mandamus is that there must be no other remedy affording the same protection.

There is no other remedy to move the respondents to give effect to section 210 of the Constitution.

The requirement for granting a mandamus have been satisfied, and this Court is satisfied that the legal remedy sought must be granted.

There been no dispute as to the need to comply with section 210 of the Constitution in order to fulfil the constitutional obligations, but, given the delay already experienced, it is fair and reasonable to order that the respondents comply with the order in a period of forty five days as originally prayed, the challenges of the COVID 19 pandemic notwithstanding.

In the light of the foregoing, I am satisfied that the application has merit.

Accordingly, it is hereby ordered as follows:

1....,.

2. The application is granted with costs.

3. The respondents failure to formulate, within a reasonable time, a Bill to give effect to the Act envisaged in section 210 of the Constitution is in breach of the Constitution of Zimbabwe.

4. The respondents are ordered to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty-five days from the date of this order.

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.

The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].

The respondent was an employee of the applicant holding the position of Chief Security Officer.

The respondent holds property belonging to the applicant, which property the respondent was holding by virtue of his being an employee of the applicant. The property consists of guns, a security motor vehicle and office and gun cabinet keys.

The respondent's contract of employment with the applicant has been terminated....,.

On the merits, the application is for rei vindicatio.

In Chitungwiza Municipality v Maxwell Karenyi HH93-18 TAGU J formulated the requirements of rei vindicatio the applicant must satisfy as follows…,:

“1. That, he is the owner of the property; Jolly Shannon and Anor 1998 (1) ZLR 78.

2. That, at the commencement of the action, the thing to be vindicated was still in existence and the respondent was in possession of the property; Masuli v Jera HH67-07; and

3. That, the respondent's possession is without his consent; Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262.”

The respondent avers, that, he is challenging the termination of his employment. That is clearly not material.

When dealing with the same contention, MWAYERA J, in The Minister of Higher and Tertiary Education, Science and Technology Development v Rudolf Pimai Matsanga HH104-19 says as follows…,:

“Whether or not the respondent is challenging the termination of employment is immaterial. The basis of occupation, which is employment, no longer exits, and the owner of property is entitled to vindicate.”

In the case of Montclair Hotel and Casino v Farai Mukutwa HH200-15, MATHONSI J made pertinent remarks emphasizing, that, once the basis of occupation has been terminated then the owner is entitled to vindicate. The Honourable Judge MATHONSI remarked:

“Just from where do former employees think they can derive the authority to hold onto property belonging to a former employer given to them for use during the subsistence of the contract of employment, in the discharge of their duties as employees, after they have lost employment? This matter is one of several of its nature which are now finding their way to the court with alarming frequency of late where a dismissed employee would simply not surrender the employer's property but would cling to it as if life depends on it.”

The above sentiments apply with equal force to the instant matter.

Apparently, as a red herring, the applicant contends, that, the guns in question are registered in his name and he fears that if they get in the wrong hands mayhem may ensure and he will be held accountable.

It is common cause that the guns are owned by the applicant and the respondent's name appears on the firearm certificate as a representative of the applicant.

Apparently, efforts are underway by the applicant to appoint persons to be responsible for the firearms: see the letter dated 4 November 2019 addressed to the Officer Commanding, Masvingo Province, ZRP by the applicant through its Registrar's Office.

Whilst an attempt has been made to justify possession of the keys to the office and cabinet wherein the guns are lodged, the issue of the security vehicle is not addressed in depth by the respondent.

The applicant contends, that, the vehicle in question is a security vehicle and its absence impacts on the security of the applicant's premises.

It is common cause that the guns, the office, and cabinet where they are lodged belong to the applicant. The keys to both the office and gun cabinet belong to the applicant. The same applies to the security vehicle.

It is common cause that the above property existed at the time of action and that the respondent was in possession of the said property. The efforts by the applicant, to have the property retained, has not succeeded. The action by the police is one such result of the applicant's attempt to retain its property. It also reflects that the respondent possesses the property without the applicant's consent.

A somewhat novel argument was raised by counsel for the respondent; it is to the effect that there has not been a demand for the return of the property in question.

A number of letters addressed to the respondent reflect that a request was made for the return of the applicant's property in the possession of the respondent. A letter dated 30 September 2019, addressed to the respondent, reads, in part, as follows:

“Pursuant to our letter dated 25 September 2019 informing you of the abolishment of the post of Chief Security Officer, kindly handover property of the University in your possession to Mr Richard Tivakudze, the Senior Security Officer. For security sensitive items, such as guns and ammunition, kindly do the handover in the presence of the Acting Vice Chancellor, Dr E. Chikodza, Acting Registrar, Mr I. Chinyemba, and Acting Bursar, Mr I. Jamela.”

Following the above letter are other letters addressed to the respondent requesting the handing over of the property in question; see letters dated 10, 21, 23 and 29 October 2019.

In the circumstances, I find that the applicant has proven that he is entitled to the interim relief he seeks. For clarity, I will grant the interim order as prayed for as amended. The applicant appears to have repeated the contents of paragraph 1. To that end, paragraph 2 of the draft order is deleted.

IT IS HEREBY ORDERED AS FOLLOWS:

Pending confirmation or discharge of this provisional order, the applicant is granted the following relief;

1. The respondent be and is hereby ordered to surrender and return –

(a) 3 guns and rounds of ammunition (the details of the guns are listed below);

(a)(i) Revolver Taurus, Serial Number 1290665.

(a)(ii) Shortgun B.S.A. Serial Number 111-3754.

(a)(iii) Pistol Norinco Serial Number 49109461.

(b) Keys to the gun cabinet.

(c) Applicant's vehicle, MAZDA BT50 Registration Number 9417.

(d) Applicant's office and keys; upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all the necessary steps to recover the said property from the respondent or any person, whomsoever, is in possession thereof and wherever the property may be situate and return the same to applicant where it shall be kept by the applicant.

2. The applicant and/or his legal practitioners be and are hereby authorised to serve this Provisional Order on the respondent.

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

Section 52(2)(a) of the Constitution protects any person from all forms of violence - whether from public or private sources.

Back Main menu

Law Portal
Zimbabwe

Constitutional Rights re: Arrest, Detention and Security iro Constitutional Obligations of Security Forces & Personnel

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

HH118-15 : MARIA SJAMBOK and BEAUTY CHIRAU vs TRUST CHINYAMA and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: MATHONSI J

HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O.
Ruled By: TAKUVA J

HHB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

HHMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

SSC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

HHH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

HB48-15 : EBENEZER TRUST vs THE MINISTER OF LANDS AND RURAL RESSETTLEMENT and P. K. MHLANGA N.O. (as Acting District Lands Officer) and RHODIE MASHINGAIDZE and CHIEF MASUKU
Ruled By: MOYO J

HHH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HHH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

HHH15-10 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

Categories

Law Portal Zimbabwe

Constitutional Rights re: Arrest, Detention and Security iro Constitutional Obligations of Security Forces & Personnel

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE Ruled By: CHITAKUNYE J

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O. Ruled By: MAKONESE J

HH118-15 : MARIA SJAMBOK and BEAUTY CHIRAU vs TRUST CHINYAMA and MINISTER OF LANDS & RURAL RESETTLEMENT Ruled By: MATHONSI J

HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O. Ruled By: TAKUVA J

HHB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA Ruled By: TAKUVA J

HHH515-17 : STATE vs MADALITSO RANCHI Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA Ruled By: CHITAPI J

HHMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS Ruled By: TAGU J

SSC43-17 : JOSEPH CHANI vs THE STATE Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA Ruled By: HUNGWE J

View Appeal HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: MANGOTA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

HHH196-18 : IGNATIUS CHOMBO vs THE STATE Ruled By: MUSHORE J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE Ruled By: BHUNU JA

HB48-15 : EBENEZER TRUST vs THE MINISTER OF LANDS AND RURAL RESSETTLEMENT and P. K. MHLANGA N.O. (as Acting District Lands Officer) and RHODIE MASHINGAIDZE and CHIEF MASUKU Ruled By: MOYO J

HHH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HHH220-16 : THE STATE vs GEORGE LOVELL Ruled By: MUSAKWA J

HHH15-10 : THE STATE vs ROY LESLIE BENNNET Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA Ruled By: WAMAMBO J

HHMA56-19 : THE STATE vs WONDERFUL MANJORO Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

Categories

Your Donation.

Law Portal
Zimbabwe

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

HB126-16 : MOVEMENT FOR DEMOCRATIC CHANGE–T vs OFFICER COMMANDING BYO CENTRAL DISTRICT POLICE N.O. and THE COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE N.O. and THE MINISTER OF HOME AFFAIRS N.O.
Ruled By: MAKONESE J

HH118-15 : MARIA SJAMBOK and BEAUTY CHIRAU vs TRUST CHINYAMA and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: MATHONSI J

HB241-16 : FRANCIS MOYO vs COMMISSIONER GENERAL OF POLICE N.O. and SUPERITENDENT NYAMAROPA N.O. and CO-MINISTER OF HOME AFFAIRS N.O.
Ruled By: TAKUVA J

HHB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

HHH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

HHH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

HHMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

SSC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

HHH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

HB48-15 : EBENEZER TRUST vs THE MINISTER OF LANDS AND RURAL RESSETTLEMENT and P. K. MHLANGA N.O. (as Acting District Lands Officer) and RHODIE MASHINGAIDZE and CHIEF MASUKU
Ruled By: MOYO J

HHH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HHH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

HHH15-10 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU