Hearsay Evidence, Res Gestae and Informants Not Presenting Corroborative Oral Evidence or Statements on Oath

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

The affidavit of W. Magweregwede, as the complainant in a criminal investigation, is totally inadequate, in that it does not corroborate the hearsay averments of Timba. The affidavit simply avers that he was assaulted. Timba, who was not present at the mine, chose not to explain how he came to be knowledgeable of the events ...

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

The plaintiff's witness confirmed that the only “sale” which the last dying wife, Faina Munemo, acknowledged to him, as executor of her estate, was that of the subsequent sale to the plaintiff.

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

The appellant led viva voce evidence from the former Attorney-General for Zimbabwe and Commissioner on the African Commission for Human and Peoples' Rights. His evidence was, in essence, to the effect that when he was Commissioner with the African Union, he would receive reports similar to the ones that were adduced into evidence by the appellant. The contents ...

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

Under cross-examination, the defendant's Managing Director was asked: “Q: When you started and finished you did not have any instructions, or guide, from the manufacturers? A: As far as the Start-Up Guide is concerned we did not have such instructions. Q: This installation was done from the heads of the construction personnel? A: From the experience we have gained from ...

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.

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled. Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be ...

Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be paid to it.

The basis of the claim is that the trailer belongs to the plaintiff. Upon the expiry of the lease the trailer should have been returned to the owner.

The issues for determination were agreed upon by the parties at the pre-trial conference. These are:

(a) Whether the trailer in question was stolen at all or alternatively lost as a result of negligence or any other actionable wrong on the part of the defendant.

(b) Whether the fact that the trailer was supposed to be insured absolves the defendant of his duty of care and/or risk in respect of the said trailer.

The onus of proof for issues (a) and (b) is on the defendant and (c) on the plaintiff.

The plaintiff called Martin Jonathan Rowland as a witness. He is the Managing Director, Commercial and Industrial Holdings of the plaintiff company. He said at the time of the transaction, Mr Mhaka dealt with the late Mr Schoffield. At some stage, the plaintiff became aware of the fact that vehicles leased out to the defendant were not being properly maintained and they were damaged in some instances. When they realized that the agreement was not working, they called for the return of the final vehicle i.e. the trailer subject matter of these proceedings.

The defendant informed them that the vehicle had been stolen. The plaintiff was only informed, in 2003, that the trailer was stolen. He said the duty to insure the trailer was on the plaintiff company. Although the risk of loss was on the plaintiff company, he said the defendant had a duty to timeously inform the plaintiff of the theft, which the defendant did not do in this case. This deprived the plaintiff company the right to claim from its insurers and this seems to be the argument.

This witness said if the report of theft had been made to the late Mr Schoffield, the latter would have reported at their company monthly meetings where legal issues are discussed. He said for an insurance claim to be made, the defendant was supposed to give full details of the theft and do so on time. He said the defendant did not provide the date of the theft. They were not provided with police initial report details. They were not sure whether the trailer was stolen or not. They demanded the return of the trailer, failing which replacement value of the trailer.

Under cross-examination, he conceded that there is no clause in the agreement which imposes a duty on the defendant to report theft to the plaintiff, let alone doing so timeously. He stated that the plaintiff did not, on its own, report the theft of the trailer to the police because they were not sure there was a theft; it was up to the defendant to report as the custodian of the trailer. When asked whether the plaintiff had bought a replacement trailer he said it was difficult to say because the plaintiff buys trailers regularly but from 2002 they bought trailers in 2004.

The plaintiff also called Dabpson Kanyoka, the Bulawayo Branch Manager, Zimnat Lion Insurance Company. He placed the value of the trailer at $20 million at the time he testified. Under cross-examination he conceded that he is not an expert in such assessments and that he relied on assessments done by engineers.

His testimony does not take the matter any further.

The plaintiff then called Vongai Gapare, a former senior underwriter at Zimnat. She authored the letter, exhibit 3, which gave the current market value of the trailer as Z$2.2 million in September 2006. She conceded that she did not consult the experts as the matter was urgent. She said she just used “information at hand” to arrive at that figure. She, however, later consulted an engineer who placed the value at $9 million.

Her testimony does not take the matter any further. Her evaluation is “off-the-cuff” and she is not, in any event, an expert in the field.

The plaintiff then called Bhekimpilo Moyo. He said he does vehicle valuation in assessments. He is a qualified vehicle body repairer and has been in the industry for over ten (10) years. He did a desk evaluation for the trailer in question at the behest of Zimnat Lion. He arrived at the conclusion that a similar trailer would be valued at Z$9,5 million.

The Managing Director of the defendant company, Amos Mhaka, testified. He said at the time the agreement was entered into it was not explained to him that he had a duty to notify the plaintiff on time of any theft or loss of the trailer. He said this was not put in black and white either. He said the trailer was stolen and he reported the theft to the police. He took the police reference number to the late Mr Schoffield. He said the trailer was stolen between August and October 2004. He said the trailer was stolen when it was en route from Harare to Bulawayo. The trailer developed mechanical problems around Battlefields area. His employee, the late Jonathan Mhlanga, was driving at the time. When Jonathan became aware of the theft of the trailer, he reported the matter to Battlefields Police before he contacted him.

The late Constable Mashati was dealing with the matter and he required that the registration book and the insurance policy be submitted. This information was recorded by then Constable Mushati on a piece of paper. When Jonathan Mhlanga gave him this piece of paper he (i.e. the witness) telephoned Mr Schoffield and eventually went to see him at his Harare office. Mr Schoffield told him that he had some urgent business to attend to in Mutare and told him to leave the police reference note in his office and he indicated that he would attend to the matter. When, in 2003, the defendant started receiving letters from the plaintiff demanding the return of the trailer, he assigned a driver to get the police reference details at Battlefields Police Station. The driver was informed that the police detail dealing with the matter had passed on. He said this demand for the return of the trailer was after he had given the police reference to the late Mr Schoffield. He did not keep a copy thereof.

He said that at the time of the issuance of summons in this matter the defendant was no longer paying rental for the trailer. The defendant last paid rentals in 2002.

Under cross-examination it became apparent that he was not being truthful on the fate of the piece of paper allegedly obtained from the late Constable Mushati. Whilst in his testimony, as alluded to above, he said he gave it to the late Mr Schoffield, in the pleadings it is the defendant's case that it was lost or misplaced. In fact, the pleadings are that the original was given to Mr Schoffield and he remained with a copy yet he now disputes ever remaining with a copy.

This discrepancy is on a material issue of whether the plaintiff was ever notified of the alleged theft prior their demand for the return of the trailer.

Mr Mhaka is the sole witness for the defendant.

As alluded to above, he confirmed the existence of the lease agreement and that he personally dealt with the plaintiff concerning this lease agreement. He, however, does not have first-hand knowledge of the theft of the trailer. He never personally made efforts to verify whether or not the driver had indeed made a report to the police.

All his evidence around that issue is hearsay.

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

In order to determine the prices of the items that went missing Rodrick Mahachi obtained three quotations from reputable companies dealing in such items. Matkan, which was the cheapest of the three, gave a total value of US$37,810=80; Computer Shop's total value was US$40,497=25 and Bexley gave a total of US$44,378=50. The quotations were filed ...

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

The affidavit of Mrs.Vimbai Nyemba, a fellow legal practitioner, in support thereof is, however, to a large extent, hearsay evidence.

HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

One could not help but to conclude that the suggestion by Mr. Douglas Tanyanyiwa that he was advised by the labour officers (which, incidentally, was hearsay evidence) that the plaintiff had snatched the original document of Exhibit 4 was clearly an afterthought.

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

Counsel for the applicant submitted that the evidence of the inquiry is not inadmissible hearsay as first hand hearsay is admissible in terms of section 27 of the Criminal Evidence Act [Chapter 8:01]. He further submitted that hearsay evidence is admissible in urgent interlocutory applications. Counsel for the first and second respondents, in response, submitted that ...

Counsel for the first and second respondents, in response, submitted that section 27 of the Criminal Evidence Act [Chapter 8:01] deals with viva voce evidence, and is, therefore, not applicable to cases where the hearsay evidence is tendered in application proceedings. He insisted that the applicant should have filed a supporting affidavit from the inquirer. On the issue of hearsay evidence being admissible in urgent cases, he submitted that the applicant filed this application on 26 March 2010, a week after the date of inquiry, therefore it had ample time within which it could have obtained a supporting affidavit from the inquirer.

I agree with counsel for the first and second respondents that section 27(1) of the Criminal Evidence Act [Chapter 8:01] does not apply to first hand hearsay evidence in application proceedings. Section 27 of the Criminal Evidence Act [Chapter 8:01] provides as follows -

“(1) Subject to this section, evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement if direct oral evidence by that person of that fact would be admissible in those proceedings.”

The use of the words “if direct oral evidence by that person of that fact would be admissible in those proceedings” suggests that section 27(1) of the Criminal Evidence Act [Chapter 8:01] applies to first-hand hearsay evidence in action proceedings.

The evidence of the caller's inquiry is, therefore, not admissible under section 27(1) of the Criminal Evidence Act [Chapter 8:01].

I must now consider the admissibility of the caller's inquiry on the basis of urgency.

Counsel for the applicant's submission that hearsay evidence is admissible in urgent cases is a correct statement of our law of evidence. It is made admissible by the provisions of section 56 of the Civil Evidence Act [Chapter 8:01] which provides as follows-

“Where an issue as to the admissibility of any evidence, or the competence, or compellability of any witness, arises, which is not provided for in this Act, the issue shall be determined according to the law applicable in similar cases before the Supreme Court of Judicature in England.”

According to our case law, such evidence is admissible under rules which allow for its admission in interlocutory proceedings. See the case of Johnstone v Wildlife Utilisation Services (Pvt) Ltd 1966 (4) SA 685.., where BEADLE CJ, commenting on the admissibility of hearsay evidence in urgent applications, said -

“It is accepted in our practice that the rules of admission of hearsay evidence applicable to interlocutory proceedings are not the same as those that apply to trial actions. Such evidence, given in an affidavit form, in such applications is not necessarily excluded because it is hearsay; provided the source of the information is disclosed. As I understand our practice, it is this: First, the court must examine the evidence given in this form and ascertain whether the prejudice which might result to the opposite party, if the evidence is later shown to be incorrect, would be irremediable. Second, the court must examine the passages to see whether there is some justification, such as urgency, for the evidence being placed before it in hearsay, and not direct, form. In any event, the court will always attach less weight to evidence which is placed before it in hearsay form than to that which is placed before it in direct form. But the weight to be attached to it does not necessarily affect its admissibility – provided it is relevant.”

In this case, the source of the statement is not properly disclosed. He is merely referred to as a member of the public. This means the evidence of the content of the caller's statement is inadmissible hearsay.

Such hearsay evidence is only admissible if the source of the information is disclosed. The result is that this court cannot admit, and rely, on such evidence. Even if the caller's statement was admissible, the fact that the caller's identity was not revealed makes it impossible for this court to consider the aspects it should consider when it is to proceed on such evidence. We would, in the result, end up with a situation where a call was received from someone who was inquiring about the price of the Stands. We do not know when the caller had received information that the Stands were being sold. The inference that the caller had recently been informed of the Stands being on sale is not the only reasonable inference which can be drawn from the facts of this case. He may well have, for a long time, known of their being on sale but decided to inquire at the time he did for reasons only known to himself. He may have received the information from people who knew of their having been on sale.

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

It is common cause that the plaintiff compiled its reconciliation from the goods received vouchers generated by its depots. Not all of these vouchers were produced before the court. All I have is the oral evidence of the plaintiff's witnesses testifying as to the quantity of the diesel allegedly received by the plaintiff. Such oral ...

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

Section 27 of the Civil Evidence Act [Chapter 8:01] and section 28 of the Civil Evidence Act [Chapter 8:01] provide - “27 First-hand hearsay evidence (1) Subject to this section, evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact ...

Section 27 of the Civil Evidence Act [Chapter 8:01] and section 28 of the Civil Evidence Act [Chapter 8:01] provide -

“27 First-hand hearsay evidence

(1) Subject to this section, evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings.

(2) …,. (Not relevant)

(3) If a statement referred to in subsection (1)—

(a) …,. (Not relevant)

(b) Is contained in a document, no evidence of the statement shall be admissible except the document itself, or a copy of the document if such copy is admissible in terms of this Act or any other law.

(4) In estimating the weight, if any, to be given to evidence of a statement that has been admitted in terms of subsection (1), the court shall have regard to all the circumstances affecting its accuracy or otherwise and, in particular, to—

(a) Whether or not the statement was made at a time when the facts contained in it were, or may reasonably be supposed to have been, fresh in the mind of the person who made the statement; and

(b) Whether or not the person who made the statement had any incentive, or might have been affected by the circumstances, to conceal or misrepresent any fact.

(5) …,. (Not relevant)

28 Evidence in previous legal proceedings

(1) Where a person has previously—

(a) Given evidence; or

(b) Made an affidavit that was produced in evidence;

in any legal proceedings, whether civil or criminal, and he has died or cannot be found or compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in or make an affidavit for the purposes of any subsequent civil proceedings, a document which purports to be—

(i) A transcript of his evidence or a copy of his affidavit, as the case may be, in the former legal proceedings; and

(ii) Certified by the official having custody of the record of the former legal proceedings as a true transcript of the evidence or copy of the affidavit, as the case may be, shall be admissible on its production by any person as evidence of the fact stated therein.

(2) …,. (Not relevant)”

In terms of section 27(1) of the Civil Evidence Act [Chapter 8:01] and section 28(1) of the Civil Evidence Act [Chapter 8:01]…, the affidavits made by the plaintiff's husband are admissible. The only rider placed by section 27(4)(b) of the Civil Evidence Act [Chapter 8:01] is the weight to be attached to them regard being had to the incentive he might have had to conceal or misrepresent any fact.

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

Mr Choto's evidence on the statement made to him by Mr Muzondo is.., hearsay. In terms of section 27(1) of the Civil Evidence Act [Chapter 8:01], such first hand hearsay evidence is admissible subject to its satisfying the requirements of section 27(4) of the Civil Evidence Act [Chapter 8:01]. Section 27(1) of the Civil Evidence ...

HH122-13 : EFROLOU (PVT) LTD vs MRS MURINGANI
Ruled By: MAFUSIRE J

The defendant gave evidence. She called one witness, Majorie Quinisela Tshuma Majorie Quinisela Tshuma is the defendant's daughter and the late Muringani's step-daughter….,. None of Majorie Quinisela Tshuma's evidence was relevant. Her evidence was largely hearsay and therefore inadmissible….,.

View Appeal
HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE)
Ruled By: UCHENA J

As to the extent of development of the Domboshawa house at the time she left…,. On this aspect, the defendant was relying on what she heard as she never set foot on the Domboshawa house. The plaintiff was in charge of the construction and was therefore better placed to know the stage of development at the time ...

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

The applicant claimed that there were 200,000 votes created in Mashonaland Central Province. He said less than 200,000 people voted in the Province yet the Zimbabwe Electoral Commission announced votes in excess of 400,000. He said he based the conclusion that less than 200,000 people voted in Mashonaland Central Province on information emanating from a ZBC reporter, who ...

HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE
Ruled By: ZHOU J

In January 2011, the respondent instituted proceedings by way of summons under Case No. HC275/11 claiming payment of damages for defamation against the applicant….,. The applicant states that he did not publish the statements complained of by the respondent. The respondent relies on reports attributing the information to the applicant. The question of whether or not the statements ...

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

In these proceedings the first defendant, who is late, is represented by Herbert Muwirimi, the executor of her estate…,. Herbert Muwirimi, the executor of the first defendant's estate, gave evidence, which, in the main, was based on hearsay. He said that the late first defendant was his aunt and was the owner of the property in dispute. ...

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i)...,.

(ii) Secondly, whether the affidavit by Mr Stevenson is properly before me. In other words, is there a Notice of Opposition on behalf of Muir?...,.

Coming to the second angle, Muir did not file an affidavit neither has one been filed by a party authorised by her.

In terms of Rule 227(2)(b), every written Notice of Opposition shall be signed by the respondent or by his legal practitioner. In terms of Rule 227(4)(a) an affidavit shall be made by the respondent or by a person who can swear to the facts or averments set out therein.

It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors HERBSTEIN & Van WINSEN - The Civil Practice of the High Courts of South Africa, 5^th Ed…, put it this way;

“Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.”

It is a telling assertion. He filed the “affidavit” without a mandate from Muir but did so due to some pressure from interested parties.

After the matter had been postponed, Mr Moyo, for Leggatte, filed a supplementary affidavit whereby he asserted that he had discovered a letter from Muirs's son authorising Mr Stevenson to act for Muir.

It is clear that this is an attempt to validate the actions of Mr Stevenson.

Mr Stevenson does not depose to the supplementary affidavit to explain why he was quite categoric in his affidavit that “he had been prevailed upon”. This does not explain why he filed the affidavit in his name without an averment that he had been authorised by Muir to defend the proceedings and to depose to the opposing affidavit.

If the interested parties thought that his evidence would assist them, then he should have deposed to an affidavit which they would attach to their own papers.

In any event, Mr Stevenson does not have personal knowledge about some of the critical matters in this case. He has no independent knowledge of whether the Gurupiras discharged their obligations or not in terms of the agreement. He does not know whether Muir cancelled the agreement, and, if so, how.

Mr Stevenson is either mistaken on the facts or he did not tell the truth in his affidavit. In paragraph 12 of his affidavit he states;

“The agreement signed by the second respondent and her husband, Ramon Charles Muir, on 27 May 2008 with John Leggatte, who signed on 28 May 2008…,.”

It is common cause that the agreement with Leggatte was entered into by Sandra Muir only. By the time of that agreement, her husband was late. She owned the two issued shares in the company with her husband's share having been transferred to her in 2006. Whatever information that he placed before the court is hearsay and it is inadmissible - and such information does not constitute Muir's opposition.

In view of the above there is no opposition filed by Muir and the matter will be related to on that basis.

This leaves the court with the Gurupira's position and that of Leggatte in the main and the counter-application.

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known). In or about 1993, the two became quite close friends. ...

In or about 1993, the two became quite close friends. The friendship grew so close that members of John Chidyiwa's family knew members of the defendant's family and vice versa. The defendant could visit John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and the reverse would also happen. As of May 1997, the friendship between them could be described as excellent. They then went into business together.

In or about May 1997, two Italian nationals approached John Chidyiwa (alone or in the company of the defendant), and encouraged him to start a freighting company. Urgent Services (Private) Limited came into existence. The directors of this company were one Marinella Cernuschi (one of the Italians), John Chidyiwa, and the defendant.

A dispute arose between the parties as to when and how the defendant became a director of Urgent Services (Private) Limited. For the purposes of determining the real dispute between the parties, it is not important that I make a finding in respect of this dispute. In my view, it is sufficient to note that as of May 1997, when Urgent Services (Private) Limited submitted its register of directors and secretaries to the Registrar of Companies, the defendant was listed as a director of the company.

In due course, Urgent Services (Private) Limited became the plaintiff through a change of name in accordance with the provisions of the Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of Managing Director of the company while the defendant became the Operations Manager.

In or about September 1998, six haulage trucks and six trailers were purchased. Three of each were registered in the name of John Chidyiwa with the remainder registered in the name of the defendant. A few days after each registration, the registration of some of the trucks and trailers were amended to add, at the end of each name, the words “trading as U-Freight”.

The circumstances of the purchase and registration of these trucks and trailers form the centrepiece of the legal dispute before me…,.

In or about April 2001, the defendant and the plaintiff parted company. The defendant tendered a letter of resignation, and, upon leaving the plaintiff, indicated, by word and by deed, that he regarded three of the trucks and three of the trailers as his personal property. As a result of this indication by the defendant, few skirmishes occurred on the highways during which trucks were “hi- jacked” by one party from the other, resulting in a number of applications in this and the Magistrates Court, culminating in this action.

The plaintiff has, throughout these applications, maintained that the entire fleet of six trucks and six trailers are its sole and absolute property....,.

I now turn to consider what I believe are the two key issues between the parties;

(a) The first one is whether it was the plaintiff that purchased and acquired ownership of the six trucks and six trailers.

(b) The second is what effect, if any, the registration of the motor vehicles in the individual names of the two directors had on the ownership of the trucks and trailers.

In considering this matter, I have put the onus on the plaintiff to prove that the funds used in purchasing the trucks and trailers were its funds. I have done so in light of the denial by the defendant that such funds belonged to the plaintiff - which denial has had the effect of putting into issue the source of the funds.

In doing so, I have been guided by the general principle of civil procedure to the effect that he who avers must prove.

According to the pleadings filed of record, the plaintiff is averring that it purchased the trucks and trailers using its funds. Applying the general principle on the burden of proof, the applicant therefore bears the onus of proving, on a balance of probabilities, that the funds used in purchasing the trucks and trailers were its own, if it is to succeed in its action.

It is common cause that the defendant went to Dubai towards the end of September 2000 where he collected the money used in paying the deposit for the purchase price of the six trucks from Tyco International. It is further common cause that the sum of US$50,000 was paid to Tyco International as a deposit for the trucks. The balance, in the sum of US$100,000 was transferred into the account of Tyco International by way of telegraphic and Bank transfers emanating from Dubai.

The plaintiff has alleged that when the defendant went to Dubai, he was going to a client of the plaintiff's to collect the money. The evidence to support this contention came from John Chidyiwa, the plaintiff's Managing Director. In this regard, John Chidyiwa testified as follows:

The plaintiff had some money in Dubai. It was owed this money by a client who visited the plaintiff in Harare. He then invited John Chidyiwa to accompany him back to Dubai to collect the money in person. He would have gone himself with the client to collect the money had he not been told that Dubai is very hot. He has a nose-bleeding problem and the hot weather would have exacerbated the problem. He then sent the defendant to collect this money.

Upon his return, the defendant gave him US$50,000. A further sum of US$95,000 was telegraphically transferred into the account of Tyco International on the instructions of the defendant in his capacity as the plaintiff's Operations Manager. A final Bank transfer was effected in favour of Tyco International in the sum of US$5,000 to complete the payment of the US-dollar component of the purchase price for the six trucks.

Regarding the payments that were to be made in local currency, the plaintiff issued a cheque from its Zimbank Account in the sum of $1,443,607=80 for all the six trucks. The monies in this account were all the funds of the plaintiff to which the defendant had not personally contributed in any way.

On this same issue, the defendant's evidence was as follows:

He went to Dubai on the invitation of a personal client, one Ayman Mohamed Suleman (“Ayman”). Ayman owed him the sum of US$230,000 as commission for the sale and export of katambura grass.

Ayman paid for his travel to and from and accommodation in Dubai. He picked up his ticket to Dubai ex Johannesburg Airport to which he had flown at his own expense. In Dubai, he was accommodated at a hotel where Ayman's wife is employed. Ayman gave him the sum of US$65,000 in cash that he brought into the country. Of this money, US$50,000 was paid over to Tyco International while the balance was illegally changed into local currency through unauthorised dealers at above the prescribed exchange rate. It was sold on the “black market”. The proceeds from this illegal exchange were paid into the account of the plaintiff and used to pay for the local currency component of the purchase price of the trucks.

The first factual dispute that I have to deal with is the identity of the person in Dubai who gave the money to the defendant. In the same breath, it is important to determine what the payment was for.

In determining this issue, I take note of the fact that in his evidence in chief, John Chidyiwa did not refer to the identity of the person or persons from whom the money had to be collected. His affidavits filed in case no HC4464/01 are equally silent on this issue. Indeed, he does not indicate the name of the client he was supposed to have accompanied to Dubai to collect the money were it not for his nose-bleeding problem.

Under cross-examination, he testified and maintained that one Ibrahim of the Hayat Al Gad Agricultural Institute made the payment to the defendant for a debt arising out of the sale and export of katambura grass.

To support his contention in this regard, John Chidyiwa made reference to two documents. The first one is an alleged fax from the defendant dated 29 August 2000 and addressed to Khalfan Malfalhil, and marked for the attention of one Mr. Ibrahim. The fax is not signed by the defendant but by someone purporting to sign on his behalf. In the fax, the defendant is informing the recipient that 10,000 kilograms of katambura grass has been sourced and is giving directions as to how the proceeds from the export of the grass should be handled.

The plaintiff has also produced a copy of a fax from one Khalfan M Alfalahi of the Hayat Al Gad Agricultural Institute, dated 10 February 2001 and addressed to the defendant. It purports to be in response to the first document allegedly sent by the defendant in August 2000. In the fax, the sender is advising the defendant as to how certain payments were made for and on behalf of the defendant.

At this stage, I wish to comment briefly that a total of six bundles of documents were prepared by the plaintiff and produced with the consent of the defendant. Amongst the pages making up the bundles were copies of some of the documents. The two documents that I have referred to above were copies and not the originals of the documents. The defendant took no issue with the production of these copies. I accordingly admitted the copies of the documents into evidence in accordance with the provisions of section 11(a) of the Civil Evidence Act [Chapter 8.01].

I now turn to evaluate the evidence before me on this issue.

Firstly, I shall deal with the documentary evidence produced by the plaintiff. While copies of the documents were admitted into evidence, with the consent of the defendant, they were not proven.

It is the law relating to the proof of documents that are not public documents that their authenticity must be proven. The authors HOFFMAN & ZEFFERTHobserve that evidence is normally required to satisfy the court as to the authenticity of any tendered document.

In H & Dwitkoppen Agencies & Fourways Est v De Sousa 1971 (3) SA 941 TPDit was held…, that:

“The law in relation to the proof of private documents is that they must be identified by a witness who is either;

(i) The writer or signatory thereof; or

(ii) The attesting witness, or

(iii) The person who found it in possession of the opposite party; or

(v) A handwriting expert, unless the document is one which proves itself,….”

In the matter before me there was no admission as to the authenticity of the documents tendered by the plaintiff. The only consent was to the admissibility of copies in the place of originals.

The defendant did not sign the first document. The person who allegedly signed the document on his behalf was not called to authenticate the document. On this basis, although the document was admitted into evidence, I find that it has not been proved and is therefore not evidence before me.

The same faults can be found with the second document. It has not been proved. No evidence has been led to show that it is authentic. The author of the document was not called to testify. The person who would have custody of the document was not identified and called to testify. John Chidyiwa merely produced the document as part of the bundles I referred to earlier on. No legal basis was laid for me to accept the document as evidence. I therefore reject it as not being authentic.

Assuming that I have erred in rejecting the two documents as evidence on the basis that they have not been proved, I would proceed to reject the evidence in the second document as being hearsay evidence.

The person who purportedly wrote the document was not called as a witness in the trial before me. The document was tendered, not to prove that there was correspondence between the defendant and Ibrahim, but to prove that Ibrahim paid the amounts mentioned in that document to the defendant. The veracity of the evidence purportedly given by the document cannot be tested in any way.

In my view, nothing would offend more against the rule against hearsay evidence than accepting the documents as proof of payment of money to the defendant by Ibrahim.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

It is trite that hearsay evidence is not permitted in affidavits.

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.

The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.

Sometime in October 2011, the respondent received and receipted a total amount of US$34,247 in the course of duty. The money went missing and the respondent was charged with failure to remit the receipted money for banking. The prime suspect for the missing money was the respondent's supervisor who also went missing soon after the money disappeared.

Consequently, the Disciplinary Committee charged and dismissed the respondent from employment in connection with the missing money. The Committee found that the respondent was at fault in that there was no evidence that he handed over the missing money to his supervisor, Mr Manyere, because the supervisor had not signed acknowledging receipt of the money.

As the respondent was dissatisfied with his dismissal from employment, the matter was subsequently referred to the arbitrator. The arbitrator ruled in favour of the appellant and confirmed the dismissal.

Aggrieved by the arbitrator's award, the respondent successfully appealed to the Labour Court. In an order dated 25 October 2013 it determined that the respondent's dismissal was unlawful and proceeded to make the following order:

“1. The appeal be and is hereby upheld.

2. The respondent is ordered to reinstate the appellant without any loss of salary or benefits from the date of unlawful dismissal.

If re-instatement is no longer an option, the parties may agree on the quantum of damages in lieu of reinstatement. In the event that parties fail to agree on the amount of damages, either party can approach this Court for quantification of damages.

There is no order as to costs.”

Dissatisfied by the above order, the applicant sought, and was granted, leave to appeal to this Court on 9 July 2014.

By the time the applicant obtained leave to appeal the time within which it was obliged to file its appeal had already expired, thereby necessitating an application for condonation of late noting of appeal. The application for condonation was granted by this Court on 18 June 2015. The order reads:

“IT IS ORDERED THAT:

1. The condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2. The notice of appeal dated 12 December 2014 shall be deemed to have been filed on the date of this order.

3. There shall be no order as to costs.”

Following the granting of the above order, on 10 August 2017, the Registrar of the Labour Court issued a notice for the applicant to pay US$120 within five (5) days of receipt of the notification letter in terms of Rule 34(1); being costs for the preparation of the record of proceedings. The notice was served on the applicant on 16 August 2017.

The applicant defaulted in making the required payment within the prescribed five (5) days' period; whereupon, the Registrar wrote to the applicant's legal practitioners, on 23 November, advising that the appeal was deemed to have lapsed. The letter reads:

“RE: CITY OF HARARE V CHIKANDA

Reference is made to the notice of appeal you filed on 27 March 2017.

It is noted that you did not make any arrangements for the preparation of the record within the time specified in sub rule (1) of Rule 34 of the Supreme Court Rules, 1964.

In terms of sub-rule (5) of Rule 34 of the aforementioned rule, the appeal is deemed to have lapsed.”

In terms of Rule 34(5), the applicant can only be granted relief by a judge of this Court upon proof of good cause for non-compliance.

The sole issue for determination on the merits is whether or not the applicant has shown good cause for the admitted disdain of the Rules....,.

Turning to the merits of the application, the applicant has, in effect, proffered one reason for its non-compliance with Rule 34(5). Its reason for failure to pay for the preparation of the record of proceedings is that, being a large organisation, it is overwhelmed with cases of litigation such that omissions and errors of this kind are bound to happen.

In his founding affidavit, Hosia Chisango, the applicant's Acting Town Clerk, deposed, at paragraph 18, that the notification for payment was received on time and forwarded to the Finance department. Payment was however not done, in error, owing to overwhelming litigation workload. At paragraph 19 this is what he had to say:

“19. I have discovered, after enquiring from the relevant official, that because of the numerous similar payments that were being made around the same time this payment was mistakenly omitted. It was only after the notice dismissing the appeal was served that verifications with the records were done and it became apparent that this payment, and a few others, had been omitted.

20. I must hasten to state that, because of the size of the applicant organisation, it is currently struggling to cope with litigation costs. The applicant, by virtue of its size, is naturally involved in a lot of litigation. This means that, on a daily basis, either we are paying costs for the serving of notices of set down or we are paying costs to issue court process, or we are paying costs of preparation of records or we are paying Sheriff's costs of serving process. In the end, some payments are omitted.

21. Quite, unfortunately, the time frames that are required for us to be paying these litigation costs are too short and very often we are struggling to meet them.”…,.

The long and short of it all is that the applicant is saying, owing to its huge size and enormous amount of litigation it is unable to comply with the Rules of Court. Paragraphs 19 to 21 of its founding affidavit however tell a totally different story. They disclose a woeful lack of diligence and disgraceful dereliction of duty on the part of the respondent, its officials, and legal practitioners.

It is clear, from the founding affidavit, that after lodging the claim for payment with the finance department no one made a follow up to check whether payment had been effected within the prescribed period. No follow up was made despite knowledge that the payment could be omitted in error. Blaming the volume of work is just a red herring meant to cast wool over the judge's eyes.

Both the applicant's officials, and its lawyers, were reckless in their handling of the appeal. They cannot be allowed to hide behind the volume of work as if they are the only big organisation involved in enormous amounts of litigation.

What immediately comes to mind is the Attorney General's office that has to handle litigation for the entire Government and other City Councils that operate more or less in the same manner as the applicant.

The averment made by the Acting Town Clerk, to the effect that the appellant was hampered in its endeavour to effect payment timeously by an overwhelming amount of litigation, is uncorroborated hearsay not supported by the officers and the legal practitioner concerned.

No weight can therefore be given to the Acting Town Clerk's averments in this respect in the absence of any supporting affidavits from the officers concerned.

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of ...

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour....,.

The applicant alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”...,.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

These two matters were heard at the same time for the purposes of convenience.

In the first matter, HC5403/09, the applicant seeks rescission of an order issued by this court on 28 October 2009 in HC4101/09.

In the second matter, HC976/10, the applicants seek an order be found to be in contempt of court and for their committal to prison for such contempt.

The first application, being HC5403/09, will be dealt with first.

The parties are the same as in HC4010/09. In HC4010/09 the applicant, the Gospel of God Church International 1932 sought an order in the following terms:

“It is hereby ordered:

1. That the respondent and its followers are interdicted from using the name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form. (sic)

2. That the respondent and his followers are interdicted from entering Gandanzara Shrine, Rusape in the Manicaland Province.

3. That the respondent and its followers should vacate immediately and forthwith from Number 140 St. Patrick's Road, Hatfield, Harare failure which the Deputy Sheriff is authorized to evict them. (sic)

4. That the operation of this order shall not be suspended from the noting of an appeal by the respondent. (sic)

5. That the respondent pays costs on an attorney and client scale.”

The first respondent therein, Simba Mukambirwa, deposed to an opposing affidavit in which immediately after para 43 thereof, he prays for the dismissal of the application with costs.

Immediately after this prayer, the following heading appears:

“Counter-Application for Peace Order and Interdict”

Paragraph 44 then follows in which the deponent states that he wishes to make a counter application for a peace order and an interdict.

After paragraph 53 appears his prayer for dismissal of the applicant's application and for an order in terms of the draft. The order that he seeks is in the following terms:

“IT IS ORDERED THAT:

1. Respondents be and are hereby declared to have a right to peacefully visit and worship at the shrine.

2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.

3. All church members who recognize Era Tapera as the President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.

4. All the applicant's purported office bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.

5. Each party to meet its own costs.”

The respondents thereafter proceeded to cause the counter application to be set down on the unopposed roll on the basis that the applicant had not filed any opposing papers to the counter-application and was therefore barred.

The matter was set down for 28 October 2009, and, on that date, an order was issued by this court as prayed for in the counter application in the terms already quoted immediately above.

It is this order whose rescission the applicant now seeks.

The main contention, on the part of the applicant, is that the default judgment in favour of the respondents was granted in error as the purported counter-application was fatally defective and that this is therefore a proper matter for the court to rescind its order in terms of Rule 449.

It is permissible for a respondent to a court application to file a counter application. This is so because Rule 229(a) provides:

“(1) Where a respondent fills a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.”…,.

Sub rule (2) of the same Rule, further provides:

“(2) This order shall apply, mutatis mutandis, to a counter application under sub rule (1) as though it were a court or a chamber application, as the case may be, and, subject to sub rule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.”…,.

In terms of sub-rule (1), as quoted above, the counter-application ought to have been made in the form of a court application.

Rule 230 requires a court application to be in Form No.29 which shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

The purported counter application did not meet or satisfy the requirements stipulated by the Rules.

There was no compliance with the Rules.

There was thus no valid counter-application before the court and the order sought in the purported counter application ought not to have been granted.

Had the purported counter application been dealt with at the same time as the principal application, as stipulated in sub-rule (2), this non-compliance with the Rules would, in all probability, have been exposed or bought to the court's attention by the applicant's legal practitioner.

But, as it turned out, the applicants were unaware of the date set for the hearing of the purported counter-application.

For the above reasons, the application for rescission of the order granted on 28 October 2009, in HC4101/09, must succeed.

It is now intended to deal with the application in HC976/10 by the respondents for contempt of court alleged to have arisen from alleged non-compliance with the order of 28 October 2009 in HC4101/09 by the parties cited therein.

In HC4101/09, the main application, the Gospel of God Church International 1932 was the only applicant. It must therefore also follow that it was the only respondent in the purported counter application.

Thus, the parties cited as respondents in HC976/10 were not parties to the proceedings in HC4101/09. As they were not parties to the matter in HC4101/09 there would be no justification for them being cited as respondents in the application for contempt of court.

If there is any justification for so citing them it would still be necessary for them to each be personally served with the order and the application.

With the exception of the second respondent, who was served with the court application for contempt of court on 19 February 2010, there is no such evidence of personal service on the rest of the respondents.

Notably, service on the second respondent was effected at 19534 Unit E, Seke, Chitungwiza. The return of service by the Deputy Sheriff, who proceeded to serve the order in HC4101/09 at Gandanzara, states that the order was “served on the ground as applicant's security guards refuse(d) to accept service.”

In the circumstances, the order having apparently been left or placed on the ground there was no service on any specific person.

Neither is there any evidence that the respondents, or any of them, prevented the Deputy Sheriff from effecting service.

The three people who are named and said to have been among the group of people that prevented the Deputy Sheriff from effecting service are not parties to this matter.

What they are alleged to have uttered at the time can only be regarded as hearsay evidence.

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

This is an application for absolution from the instance.

The first defendant contends that at the close of the plaintiff's case the court should find that the first plaintiff has hopelessly failed to place any evidence before the court upon which a reasonable court may find for the first plaintiff.

A joint pre-trial conference memorandum signed and filed by the parties sets out the issues for determination as follows:

1. Whether or not House Number 8566 Pumula East Township, Bulawayo, registered in the names of the late Preece Nhliziyo should be declared as being owned by the estate of the late Harold Nhliziyo.

2. Whether or not Thembelani Adrian Nhliziyo should be declared the only beneficiary in the Estate of the Late Preece Nhliziyo and House Number 8566 Pumula East Township, Bulawayo, must be transferred into his names.

3. Whether or not the first plaintiff, and all those claiming occupation through her, should vacate House Number 8566 Pumula East Township, Bulawayo, fourteen days after the order is served on her.

4 Whether or not the first plaintiff should pay holdover damages (rentals) in the sum of US$250 calculated from the date she issued summons to date of her eviction.

The first plaintiff avers, in her declaration, that she is the Executrix Dative in the estate of the late Harold Nhliziyo in terms of Letters of Administration dated 22 March 2011. The second plaintiff is the estate of the late Harold Nhliziyo who died at Bulawayo on 17 December 2010.

The first defendant is cited in her capacity as the guardian of Thembelani Adrian Nhliziyo, a minor child and beneficiary in the Estate of the Late Preece Nhliziyo (the third defendant).

The first plaintiff further avers that the late Harold Nhliziyo was married to three different women before his demise. His first marriage ended in divorce and his second wife pre-deceased him.

At the time of his death, he was married to the first plaintiff.

It is not in dispute that on 14 February 1986 the late Harold Nhliziyo purchased, from the City of Bulawayo, Stand 8566 Pumula East, Bulawayo. The first plaintiff alleges, in her declaration, that, after his divorce with his first wife the late Harold Nhliziyo transferred Stand 8566 Pumula East, Bulawayo into the names of his late son, Preece Nhliziyo.

She avers, further, that, it was the intention of the former, that, upon his death, the property be inherited by Preece Nhliziyo and his siblings. Preece Nhliziyo died in 2004, before his father died, and his estate was registered in 2007.

It is the first plaintiff's case, that, the late Harold Nhliziyo failed to effect a change of ownership of the property back into his names before he died.

The first plaintiff also contends, that, the first defendant was once married to the late Preece Nhliziyo before she abandoned him when he became critically ill.

It is the plaintiff's case that Preece Nhliziyo was never ordinarily resident at the property in dispute and that the first defendant has no right to the property.

At the heart of the plaintiff's case was the assertion that the house belongs to the estate of the late Harold Nhliziyo and not the estate of the late Preece Nhliziyo.

The property was “provisionally” registered in the name of Preece Nhliziyo to prevent Harold Nhliziyo's first wife from laying a claim in the property in divorce proceedings.

This was the first plaintiff's position. She said her version was largely based on what she was told by Harold Nhliziyo before he died.

The first plaintiff gave evidence.

She largely abandoned her case as set out in the declaration.

It emerged, from her evidence, that, it was not true that Harold Nhliziyo had transferred Stand 8566 Pumula East, Bulawayo into the names of Preece Nhliziyo after his divorce with his first wife. The first plaintiff admitted that that the property was transferred into Preece's names before the divorce.

It was also established that the first plaintiff was only married to Harold Nhliziyo in 2005.

She had two children with the late Harold Nhliziyo, namely, Ashley Nhliziyo (born in 1998) and Andila Nhliziyo (born in 2002).

The house in dispute was registered into the names of Preece Nhliziyo in 1993.

It is therefore not possible for Harold Nhliziyo to have intended the unborn children to benefit from the said property.

In any event, when the house was transferred into the names of Preece Nhliziyo, the late Harold Nhliziyo had not even met the first plaintiff.

Her claim, that her late husband had told her that he was making provision for children who were not born, does not make sense and the plaintiff failed to explain that discrepancy.

Under re-examination by her legal practitioner, she was asked to explain why her husband transferred the house into the names of Preece Nhliziyo. She said her husband had told her that he had a problem pertaining to divorce.

When the first plaintiff led evidence, she gave the impression, that, at the time the property was transferred into Preece Nhliziyo's names, he was a school-going child who had no means of income. This was refuted by the first plaintiff's own witness, Mandleni Nhliziyo, who testified, that, at the material time, Preece Nhliziyo was already in his late twenties.

The first plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo, were extremely unhelpful to the court.

Their evidence was vague and of little assistance to the plaintiff's case.

Jack Nhliziyo stated that he was a brother to the late Harold Nhliziyo. He informed the court that he was staying in Gwanda at the relevant time. He would visit his brother, in Bulawayo, from time to time. He said his brother told him certain things, but that sometimes he would not. He testified, that, sometime in 1993 he approached the late Harold Nhliziyo at Edgars, Bulawayo where he was employed. His late brother confided that he had a problem with his wife. He indicated that he would use his child, Preece, to protect his property from distribution in a pending divorce.

Jack Nhliziyo said he did not have any further information on the house in dispute save for that discussion he had with his late brother.

The second witness for the first plaintiff was Mandleni Nhliziyo.

The witness told the court that he knew the property being 8566 Pumula East, Bulawayo to belong to the late Harold Nhliziyo. He stated, that, on a certain day, he saw papers at the late Harold Nhliziyo's house bearing the names Preece Nhliziyo. He said upon enquiry with the late Harold Nhliziyo he was advised that the property had been transferred into Preece Nhliziyo's names for the sole purpose of preventing the first wife from claiming a share in the property.

The witness could not explain why the late Harold Nhliziyo had not re-transferred the property into his names after the divorce with his first wife.

In summary, the first plaintiff's evidence was centred on what she said she was told by the late Harold Nhliziyo.

Her oral testimony is not consistent with the averments in her declaration.

An assessment of her evidence clearly shows that she hinged her claims on what she says she was advised by Harold Nhliziyo.

There is a reasonable possibility that she was misled by the late Harold Nhliziyo.

There would be no reason why Harold Nhliziyo would have failed to regularise the ownership of the house from 1993 up to 2011 when he met his death. He had two children with the first plaintiff, in 1998 and 2002, and he would have had ample time to ensure that his two children with the first plaintiff were adequately catered for upon his death.

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.

The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at House Number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.

The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight.

He was convicted after a full trial and sentenced to 13 years imprisonment.

The State's case was based largely on circumstantial evidence.

The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife, Nyasha Tsopotsa (Tsopotsa), and Sekai Guramatunhu (Guramatunhu), also a police officer.

The evidence of Tawanda Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased's. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.

During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased's room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased's room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased's body. The deceased said to the appellant words to the effect: “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.

The witness was found to be an honest, impressive, and reliable witness in the assessment of the court a quo.

The second witness, Nyasha Tsopotsa's evidence was to the effect, that, as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother, I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon's father!” a reference to the witness husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased's doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill-treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased's room.

The witness was instructed, by her husband, to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased's bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.

As with Tawanda Miti, the court a quo was impressed by the witness demeanour. It found that her evidence was largely corroborative of that of Tawanda Miti. The court a quo also noted that the witness evidence, that the deceased accused the appellant of persistent harassment, and further said that the appellant ought to have finished her off, was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.

Sekai Guramatunhu was the State's third and last witness.

On the night in question, at around 2:00 or 3:00am she was at the police station when Tawanda Miti entered the charge office with the appellant. After Tawanda Miti made a report to her she went outside to where Tawanda Miti's vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant's utterance was because the deceased was in pain.

The defence applied for discharge at the end of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State consented to the application.

The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer.

In its ruling, the court a quo stated, inter alia:

“In short, the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”

The appellant's evidence was to the following affect:

The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011, he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.

When asked what sort of conversation he had with her, he said:

“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her….,. They are two of my brother's sons….,.

I then advised her, that, by going to the bars like what she was doing, these young men were actually seeing them (sic), and, as such, was causing a lot of embarrassment….,.

She was silent during the time that I was telling her that.

But, she suddenly got up and said that she was going to set herself alight….,.

During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed….,. It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity….,. She suddenly got up, grabbed the stove, and poured the paraffin on herself….,. She let go the stove and she quickly grabbed the matches.

It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket….,.

I then asked her why she wanted to set herself on fire….,.

She did not respond and she went back and sat on the chair and I sat back on my chair.

I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her….,.

She did not reply.

I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter, she first remained silent. I then started to contact her aunt and her sisters; unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour.

It was after some time had lapsed, whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time….,. I was afraid to leave as I thought that maybe she might do something.

It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”

The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was: “I think about 30 minutes when I was talking to her.”

He proceeded to state as follows:

“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches.

I also assumed, that, because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire….,.

She then screamed whilst advancing towards me….,. She appeared she actually wanted to grab me by the neck, but she missed; then she grabbed me by one of my hand(s) on the upper arm. During the time, she was now on fire. She actually held me in an indication that she did not want to let me go (sic).

It was then that I also caught the fire such that I also suffered injuries.

I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap, I instructed her to kneel down; I opened the tap and there was now water that was being poured on her head (sic) and all the body.”…,.

It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated, inter alia:

“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a match stick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”

The appellant further stated, in his testimony before the court a quo, that, after putting out the fire, he rushed towards the veranda where Tawanda Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased's room. Inside the room, he saw something that was burning on the floor. It appeared to be a skirt, and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside, and, in his words, he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But, I actually denied that and advised that she had done that to herself. But, after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”

The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Tawanda Miti, and others, that he had set her on fire. His answer was: “I think the incident could have taken about five minutes.”

He stated that when she was making the allegation she was no longer on fire as he had doused it.

It was also the appellant's evidence, that, during the time that the deceased was on fire and was crying out, he could not make out what she was saying.

Under cross-examination, the appellant said that the deceased called out to Tawanda Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother, I am dying” after he had put out the fire on her.

He further said, that, the deceased was lying about everything that she was saying to Tawanda Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.

As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin, his response was that he did not think of it and that he thought the clothes would dry up.

He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.

The court a quo convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses.

It concluded, that, the utterances made by the deceased constituted res gestae and were admissible against the appellant.

It was the court a quo's view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.

The appellant raised the following five grounds of appeal against his conviction and one against sentence:

“1. The Court a quo erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka 'the deceased' with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.

2. The Court a quo lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.

3. The trial court erred in mis-applying the doctrine of res gestae by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.

4. The Court a quo misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the actus reus of murder in the absence of any proved facts from which that inference could be drawn.

5. The Court a quo fell into error by summarily rejecting the appellant's defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.

AD SENTENCE

6. The Court a quo erred in imposing a disturbingly severe sentence in circumstances where the Court a quo had made (a) finding that appellant's mitigation was considerably weighty.”

ISSUE TO BE DETERMINED

The issue to be determined is whether or not the State proved the appellant's guilt beyond reasonable doubt.

Counsel for the appellant based his oral submissions before us on five points:

(i) The first, which he indicated was not covered in his heads of argument, was that the court a quo proceeded under circumstances of an irregularity; the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant's defence and colour the court's mind and that both these aims were achieved.

(ii) From the other four points that he said were covered in his heads of argument, the second point was that, on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court a quo was false, and, consequently, worthy of the rejection by the court.

(iii) The third point was that the cause of death was not established in the court a quo.

(iv) The fourth point was that the court a quo irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.

(v) The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met a quo.

With regard to the first point, the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paragraphs 2, 3 and 4 of the Summary of the State case as reflected at p2 of the record of proceedings.

Counsel for the appellant particularly highlighted paragraph 3 which reads:

“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased's body setting her alight.”

It is my view, that, if the court a quo convicted the appellant purely on the basis of what is stated in the State Summary, and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal.

If, as alleged, the court's mind was 'coloured' and the appellant's defence 'undermined' by the averments in the State Summary, such should be discernible from a reading of the court's judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard, I also take it, that, by the use of the word 'coloured' the defence meant that the court a quo was unduly influenced, in a negative manner, to the prejudice of the appellant.

It is trite that an appeal to this Court is based on the record.

It is also trite that an Appellate Court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an Appellate Court will not lightly interfere with a trial court's factual findings.

It is common cause that the appellant's conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court a quo....,.

It must not be overlooked that the onus on the respondent was to prove its case against the appellant beyond reasonable doubt.

Counsel for the appellant's second, fourth, and fifth points revolve around the issues of the application of the evidential rules relating to res gestae and to circumstantial evidence.

The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased's utterances, the subject of the conflicting contentions regarding hearsay evidence, with particular reference to res gestae, form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court a quo.

The admissibility of the evidence of those utterances has been hotly contested by the defence.

What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out: “oh mother, I am dying” and she also called out Tawanda Miti's name.

Soon after the fire that was consuming her had been doused, and as soon as she saw Tawanda Miti, who she had called out to, she told him (Tawanda Miti), and the others who had come out, that the appellant had poured paraffin on her and set her alight.

The defence's contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would, at common law, constitute res gestae.

The submission was made, that, the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap, and running back, and then making the allegation, such that whatever she said at that stage could not qualify as part of the res gestae.

The argument was that the spontaneity requirement was not met.

Counsel for the respondent, on the other hand, submitted that the court a quo decided that the deceased's utterances were res gestae because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire.

He submitted that the court a quo cannot be faulted for its finding that the failure by the deceased to name the appellant, at the time that she was burning, cannot be held against her if regard is had to the fact that, at the first opportunity, when she was no longer on fire, she named the appellant as the culprit.

Furthermore, that this was in the presence of the appellant at the scene.

Counsel for the respondent cited the case of R v Andrews [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving res gestae. In his heads of argument, he gave the following quote, purportedly from the case, but did not give the specific page at which it appears in the Law Report:

“The test used by the courts, in determining spontaneity, is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”

It was his submission, that, the court a quo correctly observed that to fault the deceased for not mentioning the appellant's name at the time that she was on fire would be to take an armchair approach.

It was also his submission, that, it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p26 of the record where the following exchange took place between the defence counsel and the witness, Tawanda Miti, during cross examination:

“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction?

A. Judging from the events, it could be less than a minute.”

I need to point out, that, in my reading of the judgment in R v Andrews [1987] 1 All ER 513, I was unable to locate the quotation cited by counsel for the respondent.

I make note, at this stage, that, counsel for the appellant's comment on this English authority was that its full content was not captured in the excerpt quoted by counsel for the respondent.

He submitted, that, the uncaptured aspects are;

(i) Firstly, that, if a statement is made after the event, it ordinarily falls outside spontaneity.

(ii) Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement can be given.

He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question: “At what stage did this end?”

In casu, so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.

In my reading of R v Andrews [1987] 1 All ER 513, I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly).

The facts in R v Andrews [1987] 1 All ER 513, as summarised in the headnote, are as follows:

“The appellant and another man knocked on the door of the victim's flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant, for murder, the Crown sought to have the victim's statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim's statement was inadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.

Held – Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim's statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim's mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion.

However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim's statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed….,. Ratten v R [1971] 3 All ER 801 applied. R v Beddington (1879) 14 Cox CC 341 overruled.”…,.

I however found the following useful exposition by LORD WILBERFORCE in Ratten v R [1971] 3 All ER 801…, (a case cited by LORD ACKNER in his speech):

“The person testifying to the words used is liable to cross-examination: the accused person…, can give his own account, if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example, between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction or fabrication, where it exists, is, on the other hand, an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.

In their Lordships opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters, as the time which elapses between the events, and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.

As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must, in principle, be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But, if the drama leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The expression 'res gestae' may conveniently sum up these criteria, but, the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges rulings.”…,.

His Lordship also referred to the case of O'Hara v Central SMT Co 1941 SC 363, where, at p381 the Lord President (LORD NORMAND) said that “there must be close association: the words should be, at least, de recenti and not after an interval which would allow time for reflection and concocting a story.” He further quoted LORD FLEMING, who, at p386, said:

“Obviously, statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.”…,.

He further pertinently states, at p808f-g:

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”…,.

And, at p809b:

“Facts differ so greatly that it is impossible to lay down any precise general rule: it is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but, whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he may take the statement itself into account.”…,.

Finally, at p808d, he stated as follows:

“…,. In an earlier case in the High Court (Brown v R (1913) 17 CLR 570) where evidence was excluded, ISAACS and POWERS JJ, in their joint judgment (at 597), put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.”…,.

In Principles of Evidence, 4ed (Juta) the learned authors, SCHWIKKARD and Van DER MERWE, under the heading “Res Gestae Statements” state that the phrase res gestae does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by CHOO (In Evidence (2012) 292) as follows:

“Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place, and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”

Under the subheading “Spontaneous Statements” the learned authors state, that, the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.

The learned authors further refer to the case of S v Tuge 1966 (4) SA 565 (A) wherein:

“[T]he court held that the following conditions needed to exist for a res gestae statement to be admitted into evidence:

(a) 'The original speaker must be shown to be unavailable as a witness';

(b) 'There must have been an occurrence which produced a stress of nervous excitement';

(c) 'The statement must have been made whilst the stress was still 'so operative on the speaker that his reflective powers may be assumed to have been in abeyance';

(d) 'The statement must not amount to a reconstruction of a past event.'”

Against the above backdrop of the position of the law relating to res gestae, I am unable to find fault with the manner in which the court a quo dealt with the issue of res gestae when it stated as follows:

“Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation, that, the cause of the fiasco was the accused. To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach. The deceased named the accused at the first opportune time after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.”

As with any other matter, each case must be decided on its own merits.

In casu, on a view of the evidence adduced before the trial court, and on a consideration of the manner in which the events unfolded, as well as the time frame within which it all happened, the court a quo cannot be faulted when it stated that:

“(I)t cannot be said that there was no spontaneity in the exclamation.”

As commented by LORD WILBERFORCE, at p806h-j:

“The reason why this is so (that is the application of different standards to the admissibility of the hearsay statement) is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”

As to the actual words used by the deceased, the court a quo cannot be faulted for believing the State witnesses.

The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased's screaming out: “oh mother, I am dying!” as well as calling out to the first witness by the deceased.

Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished.

The deceased had burn injuries, and, as a result, her undergarment was sticking onto her body.

It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him.

As it turned out, the box of matches was recovered from the appellant when he was subjected to a bodily search by the police - albeit he had a different explanation for his possession of it.

The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die.

According to Nyasha Tsopotsa, she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.

There is another consideration that buttresses the court a quo's assessment of the evidence that was placed before it.

Notably, it was the appellant's stance, that, all that the deceased said in the presence of the State witnesses were all lies.

By implication, the appellant's contention was that the deceased deliberately concocted a false story to his disadvantage.

It was thus the defence's argument that the said utterances ought not to have been accepted or admitted as part of the res gestae.

On this aspect, the trial court dispelled the risk of concoction on the view, that, to hold otherwise would be to adopt or take an armchair approach.

I find no misdirection by the court a quo in this regard on a view of the evidence that was placed before it.

The citation, by the defence, of the case of Thompson v Trevanion (1693) Skin 402 ER 179 does not, in my view, establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that, it is trite that each case must be determined on its own merits.

In the appellant's heads of argument the following statement by HOLT CJ, in the cited case, is quoted:

“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given in evidence.”

The court was alive to the fact that it was dealing with circumstantial evidence, there being no independent witness to testify as to how the deceased ended up in flames.

It rightly drew the applicable legal principles as espoused in R v Blom 1939 AD 188 and followed in Zacharia Amos Simango v S SC42-14; Abraham Mbovora v S SC75-14.

The two cardinal rules on circumstantial evidence have been stated to be:

“1. The inference to be drawn must be consistent with all the proven facts.

2. The proven facts should be such that they exclude every possible inference from them save the one to be drawn.”

The court isolated the issue that needed to be answered by the circumstantial evidence, viz: “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”

On the evidence that was placed before the trial court, there are certain baseline facts that stand out.

The appellant was the only person with the deceased in her room when she called out the first witness name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant's evidence or on the evidence of the State witnesses. She called out to Tawanda Miti. The appellant himself, a frequent visitor to the premises, according to the evidence of the State witnesses, did not call out for help from the deceased's neighbours who he must have known to be in their own rooms. Thereafter, the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire.

Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But, when the deceased was seen by her neighbours, when they reacted to her distress call, she was observed wearing only a petticoat that was now stuck to her body due to the burning.

There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.

In the circumstances, I find no misdirection on the part of the court a quo when it found as follows:

“…,. The complainant was heard screaming and calling out to neighbours. She did not call out to the accused person. If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic). It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.”

The court a quo correctly noted, that, the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court's finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant's narration of events, as regards the deceased's reaction to his questions, to be “illogical and improbable to a point that it can safely be said not to have happened.” The court found it to be improbable, that, after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.

I find no misdirection in this finding by the court a quo.

In assessing the sufficiency of the circumstantial evidence that was placed before it, the court a quo drew guidance from, firstly, the cases of R v Sibanda & Others 1965 (4) SA 241 (R.A.) where…, BEADLE CJ, dealing with circumstantial evidence, stated as follows:

“The degree of certainty with which the individual facts must be proved, in criminal cases, must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

It also referred to S v Chabalala 2003 (1) SACR 134 (SCA) in which, at paragraph 15, the following is stated:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination, and, a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”…,.

The findings made by the court a quo must be viewed against the trite position at law, that, as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an Appellate Court does not have. An Appellate Court hears an appeal on the record and cannot disregard findings made a quo unless a reading of the record patently does not support such findings.

There is no patent misdirection in the findings of the court a quo discernible on a reading of the record.

The court a quo's finding, on the appellant's demeanour as a witness, has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima facie case against him and that he had to be put on his defence.

Commenting on the appellant's demeanour, the court a quo stated:

“…, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife, as per his testimony.”

The accused's demeanour was adjudged not to be impressive.

This finding, on the appellant's demeanour, by the court a quo, is supported and borne out by a reading of the appellant's confirmed Warned and Cautioned Statement, his Defence Outline, and his testimony in court both in chief and in cross examination.

In the warned and cautioned statement, he said, that, after she had set herself alight, the deceased embraced him and he opened the door while she was still embracing him. When he opened the door, the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire.

In his Defence Outline, he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap.

In his evidence before the court a quo, he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got “hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger; that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”

The discrepancies in the extra-curial statement, the Defence Outline, and the evidence in court, in the respect highlighted above, cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on.

He did not.

In the circumstances, I find no misdirection or error in the court a quo's assessment of the appellant's demeanour.

The issue that has been raised, in relation to the rejection of the appellant's defence by the court a quo must not be considered in isolation.

The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of S v Isolano 1985 (2) ZLR 62 (SC), in this regard, cannot be faulted. Therein, LORD DENNING was quoted when he stated as follows in Miller v Minister of Pensions [1947] All ER 372 (KB):

“…, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability.

Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt - but nothing short of this will suffice.”

The court a quo found, that, on a consideration of the evidence before it, and having derived guidance from the authorities, the State had proved the appellant's guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.

In the absence of misdirection by the trial court, there is no basis for this court to interfere with the conviction.

No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.

Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:

The appeal be and is hereby dismissed in its entirety.

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

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

The accused pleaded not guilty to the allegations, that, on 23 October, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her alight with the result that Modester Chikaka suffered severe burns all over her body which in turn led to her death on 26 October 2011.

The accused elected to give a Defence Outline in support of his plea of denial.

The upshot of his Defence Outline was to the effect that the deceased poured paraffin on herself and set herself alight and that he did not pour paraffin upon the deceased nor setting her alight. He outlined that he confronted the deceased in connection with her “suspected numerous extra marital affairs” since the deceased was his wife. He further outlined that the deceased in fact poured paraffin from a stove upon herself and “somehow” went ahead to and lit herself despite the accused's attempt to stop the deceased from doing so.

He stated that the deceased, after setting herself alight, tried to “embrace the accused person intending to cause harm to him but he managed to slip away going out of the room.”

He outlined that he assisted the deceased to “put off the fire by pouring some water on her at the water tape which was near the house.”

He also further “extinguished the fire which was burning inside the house in question.”

In manner of speaking, the accused's defence was simply, that, the deceased intentionally brought about her death, or committed suicide, by pouring paraffin upon and setting her body alight.

The State opened its case by tendering and producing, by consent of the accused, two affidavits sworn to, respectively, by doctors Ndekwere and Munhumeso.

The affidavit by Dr Ndekwere was produced as exhibit 1.

He examined the now deceased following her transfer from Chivhu Hospital to Harare Hospital on 23 October 2011 around 10:20 hours. He observed and commented that the deceased had suffered 76% open flame burns on her torso, lower, and upper limbs, as well as on the neck. The doctor recommended that the patient should be admitted in the Burns Ward at the hospital.

Exhibit 2 was also a medical affidavit prepared by Dr Munhumeso who examined the now deceased on 23 October 2011 around 0300 hours at Chivhu Hospital. He observed that the now deceased had sustained paraffin burns on the chest, abdomen, and both upper limbs. He stablilized the patient and caused the patient's transfer to Harare Central Hospital for further management after noting the seriousness of the burns which he assessed to be about 35% surface burns.

Another exhibit produced by consent was the accused's confirmed warned and cautioned statement as exhibit 3.

The statement was confirmed by the magistrate on 16 November 2011 following its recording on 2 November 2011.

The accused's statement was to the following effect, quoted verbatim:

“I have understood the caution, but I am denying the charges. On the day in question, I arrived at Modester Chikaka's house at around 0130hrs. She opened the door and I went inside the house and set on a chair. After greetings, I then told her that I wanted to discuss some stories, which were circulating in town, of her affairs with other men. I told her that I was not happy about that because it was embarrassing me.

After I had told my story, that is when Modester Chikaka woke up from the bed where she was sleeping and put on her skirt and blouse, sat on a chair on the other side of the table. She did not respond to any of the questions I put to her.

She got up from where she was seated and picked up a paraffin stove, which was next to the bed, opened it, and poured the paraffin on her clothes. She put the stove on the floor. I then stood up and went to where she was after I had noticed that she was looking for some matches. When I grabbed her, she was already having some matches in her hand. I got hold of her hands so that she could not lit the matches.

We struggled with each other in the house until I managed to take the matches from her.

She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding.

Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches and struck a matchstick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tap where she poured some water on her.

I followed her to the tap, helped her to extinguish the fire.

I then went into the house to extinguish fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time. I then boarded Cst Miti's car and went to the hospital. We further visited the police station where I was arrested and Modester Chikaka was taken to the hospital.”

It is important to note the following significant points and conclusions from the statement:

(i) The deceased had already retired to bed at the time that the accused arrived at the deceased's house around 0130 hours. The deceased opened the door, let the accused inside, and the latter sat on a chair.

(ii) The accused confronted the deceased to discuss rumours circulating in Chivhu town, that the deceased was having affairs with other men; such rumours being an embarrassment to the accused and over which he was unhappy.

(iii) The deceased did not respond to the accusations, but, instead, left the bed where she had gone back to sleep, put on her skirt and blouse and sat on a chair on the other side of the table from which the accused sat.

(iv) The deceased, without saying anything, stood up from the chair, picked up a paraffin stove which was next to the bed, opened it, and poured the paraffin on her clothes.

(v) The accused stood up from his chair after noticing that the deceased was looking for some matches. He managed to grab the deceased's hands which were holding some matches so that she would not light the matches. The accused and the deceased struggled with each other and the accused succeeded in taking away the matches from the deceased.

(vi) After the accused had dispossessed the deceased of the matches, the two returned to their sitting positions on the chairs which they had been sitting on before the struggle for possession of the matches.

(vii) For the next ten to fifteen minutes, the accused continued to interrogate the deceased in regard to the same rumours, that the deceased had boyfriends. The deceased did not respond to the accusations.

(viii) As the accused was still seated, the deceased got up from where she was seated, picked up another “matches” struck a match stick and lit herself before the accused could get close to where the deceased was.

(ix) The deceased, after setting herself ablaze, embraced the accused whilst she was screaming. The accused was able to open the door as the deceased was still in an embrace on him and she was crying.

(x) When the door was opened, the fire burned heavily. The deceased then ran to the tap where she poured water on herself. The accused followed and assisted the deceased to extinguish the fire.

(xi) The accused returned to the house, went inside, and extinguished the fire which was burning there. It was then that the deceased informed her neighbours that the accused had burnt her.

(xii) The accused did not dispute the accusation because to him it was a waste of time.

It was therefore clear, on the accused's account, as given to the police, that, the deceased and the accused were engaged in a disagreeable discussion when the tragedy took place.

The accused's explanation to the police was therefore simply, that, when he confronted the deceased about rumoured affairs which the deceased allegedly had with other men the deceased neither denied the accusation nor admitted them. Her response was to open the paraffin stove, pour paraffin upon herself, and attempting to burn herself before being disabled by the accused where after she sat back on the same chair that she had been seated on before her failed attempt to burn herself.

Another follow up interrogation of 10–15 minutes resulted in the deceased reaching for another box of matches and setting herself alight before embracing the accused whilst screaming.

The accused opened the door to the house/room whilst the deceased still held him in an embrace. The deceased then ran to the water tap and poured water on herself with the accused following and assisting her. The deceased reported that the accused had burnt her, an accusation which the accused did not contest because to do so would have been waste of time.

At this stage, it is necessary to note, that, the accused's confirmed statement, whose contents have been outlined, will, as provided in section 256(1) of the Criminal Procedure and Evidence Act, be taken as evidence against the accused, there being no challenge to its admissibility or authenticity.

Accordingly, the statement will be considered together with all other evidence adduced by the State in assessing the sufficiency of evidence led in support of the charge or allegations against the accused.

The State also led evidence from three witnesses, namely, Tawanda Miti, Nyasha Tsopotsa, and Sekai Guramatunhu. The summary of the evidence of these witnesses was as outlined hereunder:

Tawanda Miti

Is a police officer with CID and is based at Southerton Police Station, Harare. When the incident in this matter took place, he was stationed at Chivhu police station. He knew both the deceased and accused as lovers. The deceased and the witness shared the same residence where they lived in adjoining rooms sharing the same veranda. The residence was in the form of a standard block with partitioned rooms each room with its entrance door which was accessed from the veranda. When one is standing on the veranda, the doors to the rooms lead into the rooms from the veranda. The deceased occupied one room at the furthest end. The witness used the next two rooms after the deceased's room and the fourth room door led into the common washroom and toilet. Behind the toilet was a water tap.

There was no dispute as to the make-up of the residence and the rooms.

He testified that he had retired to bed with his wife when he woke up around 2:00am to screaming by a person calling out his name. He got out of bed, opened the door, and got out of his room. He then saw fire flames inside the deceased's room. He was shocked by the spectacle. He then saw the accused arriving on the veranda and he ordered the accused to put out the fire. He next observed the deceased coming from behind the residence in the direction where there was a water tap. He observed burns on the deceased.

He then heard the deceased to say to the accused: “why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased went on to tell the witness that the accused had poured paraffin on her and lit her up.

The deceased also said that the accused had the matches on him, to which the accused responded that the deceased had poured paraffin on herself.

The witness, at this stage, instructed his wife to cover the deceased with a blanket after where the witness provided his vehicle and ferried the deceased and accused to the police station where the accused was placed under arrest and the deceased ferried to hospital.

The State counsel asked the witness to repeat the exact words which the deceased reportedly uttered to the witness when the witness came out of his room to check on what was happening. The witness said:

“She said accused took paraffin from a paraffin stove and poured on her. He then took a matchstick, lit it, and threw it at me. She then went out of the house to pour water on myself whilst screaming.”

The witness further repeated, that, the deceased, when coming from the tap, said: “why did you not set yourself ablaze too since you wanted both of us to die? Why have you killed me?”

Asked whether the accused responded, the witness responded that the accused answered: “I did not kill you. You poured paraffin on yourself.”

The witness said that the accused proceeded to extinguish the fire in the house after coming on to the veranda from the direction of the tap as per the witness assumption.

Under cross-examination, the witness admitted that he did not know for a fact as to who poured paraffin on the deceased. He also did not witness the accused setting the deceased on fire.

The witness was asked: “You did not hear her calling out that accused had set her ablaze whilst you were in your room?” and he responded; “She was saying that. She said so as she called out for my help.”

The witness agreed that in his witness statement, recorded on 3 November 2011, he did not mention that the deceased had shouted that the accused had set her ablaze.

The witness said that the omission could have been a result of oversight.

The witness agreed that he could not deny that the accused assisted the deceased to douse off the flames at the tap.

The witness agreed that the accused denied that he had set the deceased ablaze when the deceased was making the accusation.

He agreed that the accused had responded that the deceased poured paraffin on herself.

The witness said that prior to hearing the screaming which woke him up, he did not hear any commotion whilst he was asleep.

He said that the accused was searched at the charge office and found to be having a box of matches in his pocket. The witness agreed that in his recorded statement he stated that the accused explained his possession of the matches by saying that he took the box of matches from the deceased.

The court's assessment of the evidence of this witness was that he was an honest and impressive witness who gave a simple narration of the events which he witnessed. The cross examination of the witness was not eventful because he maintained his story.

His evidence was clear, that, the deceased accused the accused person of pouring paraffin upon her and setting her ablaze with matches. His evidence was equally clear that the accused responded to the allegation by denying the accusation and instead accusing the deceased of having poured paraffin on herself and set herself ablaze.

It was not suggested to the witness that the deceased did not name the person who had harmed her. What was put to the witness in cross-examination was that the accused denied the allegation.

It was not denied that the deceased went further to ask the accused as to why he had not equally poured paraffin upon himself so that he dies together with the deceased as he had wished or declared.

It was not denied that the deceased uttered the words: “why have you killed me?”

The court, having been impressed by the demeanour of the witness, his self-confidence, and standing unshaken under cross-examination, accepted the evidence of the witness as reliable.

The next witness was Nyasha Tsopotsa, the wife of the last witness.

She testified to having been asleep with the last witness when she heard screaming sounds and a door being forcibly opened. The first witness woke up as well, but, before either of them had left their room, the witness heard the sound of footsteps outside going in the direction of the water tap. The person screaming was calling out her husband, the first witness name.

The first witness went out of their room first before she followed.

When she exited their room, she saw the deceased behind the toilet door dressed only in her petticoat which was stuck to her body. The deceased had visible burns. She saw the accused by the door of the deceased's room.

She heard the deceased saying to the accused: “Dai wandipedza. Wabvira kundishungurudza, wandipisa” which words translated into English mean: “You should just have finished me. You have been persistent in harassing me. You set me on fire.”

She heard the accused to respond saying: “You set yourself on fire.”

She testified that the last witness ordered her to find something to cover the deceased with. She obliged and took one of the deceased's bed sheets and covered her with it.

The first witness, the deceased, and the accused then drove away in the first witness's vehicle.

When asked to recite the first words which she heard the deceased to say, she responded and said in Shona: “Maiwe ndofa” which was translated as: “Mother, I am dying!”

She said that she heard screaming and the door opening at the same time followed by footsteps which proceeded in the direction of the tap.

When the deceased was screaming, she was shouting: “Father of Brendon” in reference to the first witness.

When the witness came out of her room, she said that she saw the deceased talking to the accused person accusing him of having set her alight.

The witness remained at home when the deceased and the accused drove away from the scene.

Under cross examination, the witness agreed that she did not hear the deceased to say that someone was killing her. She said that she heard the deceased saying: “Mother, I am dying.”

The witness said that she did not know what had happened prior to this.

The witness reiterated that when she got out of the house, she heard the deceased saying to the accused: “You poured paraffin on me and burnt me.”

The witness said that she could not dispute that the accused assisted in dousing the deceased of the fire burning her because by the time she got to the scene, the deceased was behind the toilet door accusing the accused of pouring paraffin on her and setting her blaze.

The witness agreed that the accused disputed or denied the allegation.

The witness was not re-examined nor did the court seek any clarifications on her evidence.

The court, as with the last witness, was impressed by the demeanour of the witness. In fact, nothing eventful or new came out of the cross-examination of the witness. Her evidence was largely corroborative of that of the last witness.

Significantly, the accused's counsel, in cross examination, did not deny that the deceased made accusations pointing to the accused as having poured paraffin on her and set her light.

The witness evidence, that the deceased accused the accused of persistent harassment, and that the deceased said that you should have finished me, were not disputed either.

The court therefore accepted that the deceased uttered the words testified to by the witness.

The court also noted that the accused denied the accusations.

The last witness was Sekai Guvamatunhu, a police constable who was one of the duty officers at Chivhu Police Station when the deceased was brought to the police station by the first witness who made a report concerning the deceased having suffered burns.

The deceased was inside the first witness's car.

The witness proceeded to the vehicle, which was parked outside the charge office, and observed the deceased. She noted that the deceased had severe burns. She suggested that the deceased should be ferried to the hospital urgently.

When the witness tried to speak to the deceased, the accused came over to the witness to stop her from speaking to the witness giving the reason that the deceased had been burnt.

The witness accompanied the deceased to the hospital in the first witness's vehicle.

The witness evidence was not contentious, and, in any event, was relevant in respect of completing the chain of events. Nothing really turned on it. The court took and accepted the evidence as given.

The State closed its case....,.

The accused elected to give evidence.

He testified, on oath, that, the deceased was his wife of five (5) years. He denied killing her. On the fateful night, he said that he arrived at the deceased's room around 0100 hours, knocked at the door, and was let in. They greeted each other. He sat on a chair whilst the deceased returned to bed. He then told her that he wanted to speak to the deceased about rumours going around in town and being peddled by other people.

The deceased got out of bed and put on her skirt and blouse. She then pulled a chair and sat across the table from where he sat.

The accused said that he accosted the deceased of being in the habit of frequenting bars in his absence. He told the deceased that she had been seen by his brother's sons, called Kuda Muza and Chivizhe. He then chided her that her frequenting of bars was a source of embarrassment for him.

The deceased did not respond.

He said that the deceased suddenly got up and said that she would set herself on fire. She was working her way to the primus stove as she spoke. The accused had bought for her the primus stove to use in the event that there was no electricity supply. The deceased then poured paraffin on herself, let go of the stove, and got hold of matches.

He quickly grabbed both her hands to disable her from striking the matches. He then firmly gripped the hand which held the match box, took away the match-box and slipped it into his pocket.

He said that he asked the deceased as to why she wanted to set herself alight. The deceased did not respond, but returned to sit on the chair that she had risen from.

After the deceased sat down, he said that he asked her, again, as to why she wanted to set herself on fire and yet all that he was doing was to reprimand her; which was something that did not justify her to set herself on fire.

The deceased did not respond.

He said that he tried to telephone the deceased's sisters and aunt but their phones did not go through. He then sat in his chair for some time apprehensive that the deceased could do something like burning herself. He said that he dozed off because he suddenly heard the sound of a chair moving.

He saw the deceased take another match box.

This was about 30 minutes later after dozing off when he woke up to the sound of a moving chair. He stood up but the deceased lit the matches and set herself ablaze. She then directed the match box towards the accused's bossom. The deceased tried to light the matches in order to set the accused alight but it did not light up.

The accused said that he was surprised because he thought that the paraffin was no longer flammable.

The accused said that he thought about how he could put out the fire. He wore a nylon t/shirt and could not use it. There was a bed with blankets next to where the deceased was but he could not use the blankets because the deceased ran towards him and she appeared as if she wanted to grab him by the neck. She however held his arm in a firm grip as she screamed. He said that he suffered some abrasions. He then said:

“I realised that the fire intensity had increased and I said lets got to the tap so that I put out the fire. She went out first. I followed and said kneel down so that I pour water on you. I then ran some water over her.”

The accused said that Tawanda Miti, the first State witness, and his wife, woke up as he was by the water tap.

Tawanda Miti then said that something was burning and gave the accused a bucket with water telling him to put out the fire. The accused then noted that there were clothes burning on the floor and he stamped on the flames with his feet. He thereafter exited the deceased's room and found the deceased telling Tawanda Miti that he, the accused, had set her on fire.

The deceased was crying as she narrated her ordeal to Tawanda Miti.

The accused said that he then denied burning the deceased and the deceased kept quiet.

He said that the deceased only called out to Tawanda Miti when she was coming from the tap and not before.

When asked by his counsel to suggest any reason why the deceased would have accused him of setting her on fire, the accused responded: “I think it is because of the way I had spoken to her about her behaviour.”

Under cross examination, the accused admitted that he heard the deceased telling Tawanda Miti that the accused had burnt her. He however said that this was said after the fire had been extinguished. He also agreed that the deceased said: “why did you not also burn yourself and die too!” He said that she however was lying, and that, considering her state, he saw no useful purpose in denying.

He said that her utterances, pointing him out as her assailant, were intended to fix him.

The court sought clarifications, on whether the accused saw the place from where the deceased got the matches which the deceased used. He said that he suspected that the box must have been by the of corner table where the deceased sat. The two of them sat 1–2 metres apart. He said that the deceased was his second wife.

The above summarised evidence was, in the main, the accused's trail of events.

The court must decide whether, on the totality of the evidence, the State proved the charge against the accused beyond a reasonable doubt.

Firstly, commenting on the accused's demeanour, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife as per his testimony. The accused's demeanour was adjudged not to be impressive.

It is common cause that there was no independent witness to testify as to how the deceased ended up with the burns. The case falls to be determined on the basis of circumstantial evidence.

In this regard, the principles set out in the case of R v Blom 1939 AD 188 remain authoritative and continue to be followed in this jurisdiction.

In Zacharia Amons Simango v S SC42-14 and Abraham Mbovora v S SC75-14, the Supreme Court held the principles in R v Blom 1939 AD 188 to still hold good in this jurisdiction.

GOWORA JA, in Amons Simango v S SC42-14, stated that there are two cardinal rules which govern the use of circumstantial evidence in a criminal trial, being:

“(1) The inference sought to be drawn must be consistent with all the proven facts.

(2) The proved facts should be such that they exclude every possible inference from them save the one to be drawn.”

As regards the material facts as to what happened at the critical time, it is not disputed that the deceased suffered paraffin burns resulting from her being on fire.

The issue for determination is whether or not the deceased poured paraffin upon, and burnt herself, or it was the accused who sat her alight after pouring paraffin on her.

The State evidence, which was not disputed, was that the deceased pointed out to the accused as the perpetrator who poured paraffin on her and set her ablaze.

It is also not disputed that the accused, prior to the disputed incident with regards how it happened, had come to the deceased's place in the early hours of the morning. The accused accosted the deceased on allegations that the deceased was frequenting bars in his absence and of infidelity.

Such accusations involve matters of emotion; moreso on the part of the accuser who invariably requires answers and confessions.

If, as the accused alleged, the deceased chose to keep quiet and not deny the allegations, it is unlikely that the accused would have taken kindly to this.

The court reasoned, that, the discussion between the two could not have been an amicable one and the accused, in fact, was, in all probability, incensed because he allegedly had evidence of his relatives having informed him.

The accused sought to give the court the impression that he was simply engaged in a mutual and amicable discussion. The court reasoned, that, the interrogation of the deceased could not have been, and, in all probability, was not amicable.

The conduct of the accused had to be looked at within this background founded on probabilities.

The accused's evidence was that the deceased did not respond to the allegations which he made against her but chose to behave as described by the accused, that is: “she suddenly got up and said I will set myself on fire.”

Such reaction and conduct was, in the view of the court, illogical and improbable to a point that it can safely be said not to have happened.

In fact, what the accused seeks the court to accept was a scenario where the deceased was simply asked as to why she went to bars in the absence of the accused and she responded by pouring paraffin upon and setting herself alight.

When assessing evidence, it is trite that the accused's explanation or version of evidence should not be rejected for merely being improbable. It will be rejected only if it is so inherently improbable that it could not reasonably be said to be true: see Shusha v S [2011] ZASCA 1712.

In the reasoning of the court, it is inherently improbable that where parties are involved in a love or marriage relationship, and one party accuses the other party of improper behaviour and infidelity, the accused party does not answer the allegations, but, instead, suddenly adopts a dangerous manoeuvre to inflict harm or injury on themselves.

The inherent improbability in the accused narration of events would need to be considered together with other proven facts in drawing the appropriate inference.

The undisputed evidence of State witnesses was that the deceased named the accused as the person who had poured paraffin on her and set her ablaze.

The complainant was heard screaming and calling out to the neighbours. She did not call out to the accused person.

If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to, and in her presence, to assist her or come to her aid.

It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.

The accused, in his warned and cautioned statement, stated that he opened the door whilst the deceased was holding on to him in an embrace and crying - the accused does not appear to have suffered any injury to his person or damage to his clothing. He stated therein, at the time, that, when he opened the door, the fire was burning heavily.

He indicated therein, that, the deceased ran to the tap where she poured water on herself and that he followed and assisted her to extinguish the fire.

There was a variance with his evidence in chief because when he testified, he said that it was him who suggested to the deceased that they should go to the tap so that he extinguishes the fire. He further said that when he followed to the tap, he asked the deceased to kneel down so that he pours water on her.

The impression which one gets from the testimony is that the accused went all out to assist the deceased and even suggested how the fire could be extinguished.

He was, on his evidence, the savior.

It then becomes mind boggling that immediately following the accused's acts of benevolence towards the deceased, the deceased would immediately turn against her benefactor, after being assisted, and accuse him of burning her.

When a court assesses evidence, it does not treat each individual piece of evidence as an isolated component. Pieces of evidence constitute a mosaic of proof. Doubts in relation to one piece of evidence naturally arises if one picks and chooses to focus on individual evidential pieces. Doubts may be removed when all pieces of evidence are considered together taking into account probabilities.

Whilst the court critically interrogates and subjects each piece of evidence to examination, it is, in the final analysis, necessary to then consider the mosaic as a collective body of evidence. If evidence is not considered together, the court runs the risk of failing to pick the wood from the trees.

In R v Sibanda & Others 1965 (4) SA 241 (RA), BEADLE CJ…, stated, when dealing with circumstantial evidence, as follows;

“The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable ground for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

In S v Chabalala 2003 (1) SACR 134 (SCA)…, it is stated:

“…,. The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence, or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”

The upshot of the dicta in the above cases is that the court should always approach the assessment of evidence holistically and not nitpick aspects or components of evidence without relating them. It is the totality of the evidence which must be considered, and, a founding of guilt or innocence should not be based upon a consideration of facts treated in isolation but collectively.

In casu, the only factors indicative of the accused's innocence were his denial that it was not him who had committed the felony when the deceased pointed him out. He did not deny that the accusation against him was made.

There would appear to have been no logical reason for the deceased to have named the accused and attributed the pouring of paraffin and lighting of the deceased to the accused.

The reasoning of the court, in this regard, has been explained.

Had the deceased awoken to find herself on fire, she would, in all probability, have suspected the accused as he was the only person in the room. However, in casu, the events took place when the deceased was awake and there would, on the proven facts, have been no compelling reason for the deceased to attempt a suicide and attribute the act to the accused.

Counsel have raised the question of res gestae and argued that the evidential facts disqualify the application of the doctrine.

The defence counsel argued that there was no spontaneity in the deceased's exclamation pointing out to the accused as the assailant. For his part, the State counsel, in his closing submissions, indicated that he stood by his submissions in which he had earlier conceded to the defence application for discharge.

The court found the State's approach to be wholly unhelpful.

The State counsel did not even comment on the defence evidence and the probabilities.

It goes without saying, then, that the court does not agree with the veiled concession by the State that the State evidence was inadequate to support the charge.

The unfortunate attitude adopted by the State counsel appeared to be that of saying: “I have already made up my mind that the State has not proved a prima facie case. The court can proceed to make a contrary determination if it wishes.”

Such attitude and approach is improper.

Counsel needed to address the further evidence adduced after the dismissal of the application for discharge of the accused.

Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation that the cause of the fiasco was the accused.

To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach.

The deceased named the accused, at the first opportune time, after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.

The court has already dealt with the issue of the absence of the post-mortem report.

The issues in the case were not that the deceased could have met her death through other causes. The issue was whether the accused is the one who poured paraffin on the deceased and set her ablaze resulting in injuries from which the deceased died.

In such a case, a postmortem would simply be there to give credence to the admitted fact, and its absence is not therefore fatal to the State case.

Having considered all the evidence holistically, and, properly guided by case law on the approach to dealing with circumstantial evidence, the court determined that the only reasonable inference to be drawn on the evidence was that of the guilt of the accused.

The court determined, that, it was the accused who set the deceased ablaze after pouring paraffin on her, and, that, when he did so, he foresaw or realized a real risk or possibility that his conduct may cause death and continued in that conduct regardless.

The accused is therefore found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The late Addison Mhlanga was of Malawian extraction who came and naturalized himself in Zimbabwe.

He married one Dinah Ndlovu but did not have children. The two then adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22 September 2003 at age 85 years.

He owned Stand Number 49257 otherwise known as Block 26/919 Mpopoma Township, Bulawayo.

The adopted child, Esther Ncube (nee Nkala), died on 19 November 2012 leaving three children, viz Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.

At an edict meeting before the Additional Assistant Master, on 19 March 2013, Esther's relatives agreed that the respondent be appointed executor dative to administer the estate of the late Addison Mhlanga.

Apparently, the respondent is related to the late Addison Mhlanga's late wife, Dinah Ndlovu, the latter having been the respondent's maternal aunt.

Ordinarily, the sole asset of Addison Mhlanga's deceased estate, viz the Mpopoma house alluded to supra, was set to devolve upon Esther's estate, which, in turn, was set to be inherited by Esther's three daughters mentioned above.

Following an advertisement in the Chronicle Newspaper and the Government Gazette of Addison Mhlanga's estate by the respondent, the appellant, out of the blue, and having changed the surname on her birth certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an application, on 10 May 2013, in the Magistrates Court Bulawayo to have an edict meeting for the appointment of herself as heir to Addison Mhlanga's estate claiming to be the sole surviving daughter to Addison Mhlanga.

The application was dismissed, and, dissatisfied with the outcome, the appellant lodged the current appeal before this court. Two main grounds of appeal were raised and they are these:

“1. The learned magistrate erred at law in dismissing appellant's claim when -

1.1 There was evidence to the effect that the deceased, Addison Mhlanga, disclosed, during his lifetime, that appellant was his daughter.

1.2 The appellant had a birth certificate showing that the deceased Addison Mhlanga's father (sic).

1.3 The deceased, at the time of his death, had allowed the appellant to reside at his house and she continues to do so now.

1.4 The now deceased, Esther Nkala, did not reside at the said house – 26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.

1.5 Appellant's lobola was paid to the deceased, Addison Mhlanga, during his lifetime.

2. The learned magistrate also erred at law in accepting, that, the late Esther Nkala's children were entitled to inherit from the late Addison Mhlanga's estate because Esther Nkala was his adopted daughter when no document was produced to prove that she was and had been adopted.”

The appellant's prayer is that she be declared the late Addison Mhlanga's daughter and that the late Esther Nkala's children are not entitled to inherit from the late Addison Mhlanga's estate.

I will deal with the grounds of appeal hereunder seriatum.

THAT THERE WAS EVIDENCE TO THE EFFECT THAT ADDISON MHLANGA DISCLOSED THAT APPELLANT WAS HIS DAUGHTER

The means which the parties must produce and on which the court can base its decision is what is called evidence (facta probantia) while what has to be proved in any given issue (facta probanda) is the domain of substantive law.

In casu, what had to be proved (factum probandum) was that Addison Mhlanga, during his lifetime, disclosed that the appellant was his biological daughter.

Was there such evidence as contended for by the appellant?

What is not in dispute here is this:

Simanga Moyo, who is the appellant's mother, was Kenneth Nkhulambe's customary law wife. Nkhulambe, like Addison Mhlanga, was also of Malawian extraction.

As people who find each other in foreign lands are wont to do, the two would address each other as “brothers.”

The appellant was born on 24 January 1978 as Doris Dorcas Nkhulambe. Her birth certificate reflected so.

After Kenneth Nkhulambe “divorced” the appellant's mother, Addison Mhlanga took the appellant and her siblings into his household as he thought that a stepmother (Nkhulambe's new wife) would not take good care of the children.

In 1986-1987 the children were taken to Gwanda where Addison Mhlanga had a rural homestead. Then, the appellant was in Grade 4. In 1992, the appellant returned to Bulawayo and stayed at Block 83 with Kenneth Nkhulambe and her step-mother until she got married in 2000.

What is in dispute is that the appellant is an adulterine progeny of Simanga Moyo and Addison Mhlanga.

The appellant averred, that, this issue of adultery and paternity only came to light in the year 2000 when a meeting was held at which Addison Mhlanga disclosed that the appellant was his biological daughter.

The appellant was not forthcoming on whether she attended this meeting or was merely told later.

She said the meeting was attended by the two men, Esther Ncube, Shilling Phiri, Fatima and Dorcas Phiri.

However, pertinent to note here is that Fatima herself initially said she sat in the meeting (see pages 48 of the record), but, under cross-examination, on page 50 of the record, she said;

“The elders held their meeting and we were then told [of the illicit affair of Simanga and Addison Mhlanga] later after the meeting.”

Since the appellant was not an elder, it is therefore safe to infer that she is incorporated in the “we” referred to by Fatima that they were only told later.

In the event, what the appellant is alleging is purely hearsay, which, as evidence, is inadmissible.

The appellant's witness, Addison Phiri, did not ameliorate matters.

He said the meeting alluded to was held in 1997; it having been prompted by the appellant's illness. He said it was a secret between Addison Mhlanga and himself that the appellant was Mhlanga's daughter sired by him and Nkhulambe's wife.

However, under cross examination, the alleged secret evaporated into thin air when this witness said present when Addison Mhlanga told him were “Shilling, Esnat, and myself; those were the only people who were there.”

However, on further probing, he added that Kenneth Nkhulambe and Edna (Mhlanga's wife) were also present.

His year of 1997 contradicts the year 2000 stated by the appellant and Fatima.

Also, the people he named as being present when he was let into the secret exclude the appellant and Fatima - which buttresses the above finding that the appellant's and Fatima's evidence was purely hearsay and inadmissible.

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

NO QUORUM AT THE JUDICIAL SERVICE COMMISSION (JSC) MEETING OF 13 DECEMBER 2019

It was at this meeting of the Judicial Service Commission (JSC) that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.

The parties are agreed that the membership of the Judicial Service Commission (JSC) is 13, but, there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.

The applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting.

He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of the minutes of the meeting of 13 December 2019.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Muchini v Elizabeth Mary Adams & Others 2013 (1) ZLR 67 (S).

It also is trite that he who alleges must prove: see ZUPCO v Parkhorse Services (Pvt) Ltd SC13-17; Circle Tracking v Mahachi SC04-17.

Counsel for the applicant conceded, that, all that the applicant has done is to allege that there was no quorum.

He argues, that, on the basis of the importance of the matter that bare allegation must shift the onus to the Judicial Service Commission (JSC) to prove that there was a quorum.

It is clear that the applicant relies on rumours for his allegation that there was no quorum.

Matters are decided on the law, facts, and the evidence - and not rumours.

The Judicial Service Commission (JSC) says there was a quorum. It is not the applicant. It suffices that it challenges the applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter's allegation.

I find that the applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.

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Hearsay Evidence, Res Gestae and Informants Not Presenting Corroborative Oral Evidence or Statements on Oath

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

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

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

HH122-13 : EFROLOU (PVT) LTD vs MRS MURINGANI
Ruled By: MAFUSIRE J

View Appeal
HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE)
Ruled By: UCHENA J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE
Ruled By: ZHOU J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

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Hearsay Evidence, Res Gestae and Informants Not Presenting Corroborative Oral Evidence or Statements on Oath

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA Ruled By: CHIDYAUSIKU CJ

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE Ruled By: HUNGWE J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA Ruled By: MAKARAU JP and PATEL J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED Ruled By: BHUNU J

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

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD Ruled By: NDOU J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY Ruled By: KAMOCHA J

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA Ruled By: BHUNU J

HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES Ruled By: BERE J

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS Ruled By: UCHENA J

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD Ruled By: MAKARAU JP

Appealed HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS Ruled By: KUDYA J

View Appeal HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS Ruled By: UCHENA J

HH122-13 : EFROLOU (PVT) LTD vs MRS MURINGANI Ruled By: MAFUSIRE J

View Appeal HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE) Ruled By: UCHENA J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE Ruled By: ZHOU J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA Ruled By: MTSHIYA J

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA Ruled By: MAKARAU J

View Appeal HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI Ruled By: MUSHORE J

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA Ruled By: BHUNU JA

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

View Appeal HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS Ruled By: MAVANGIRA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO Ruled By: MAKONESE J

Appealed SSC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HHH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

Appealed HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIKOWERO J

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SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

HH01-08 : SIMON FRANCIS MANN vs THE REPUBLIC OF EQUATORIAL GUINEA
Ruled By: MAKARAU JP and PATEL J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

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

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

HH40-10 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA and BISHOP CHAD GANDIA
Ruled By: BHUNU J

HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

HH122-13 : EFROLOU (PVT) LTD vs MRS MURINGANI
Ruled By: MAFUSIRE J

View Appeal
HH18-06 : MASIYIWA CLEOPHAS GONYE vs STELLA MARIS GONYE (NEE MUCHENJE)
Ruled By: UCHENA J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH184-15 : ANDREW CRANSWICK vs RETIRED MAJOR GENERAL HAPPYTON BONYONGWE
Ruled By: ZHOU J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J