TAKUVA J: The
accused persons are facing a charge of murder in that upon or about
the 6th
and 7th
day of March 2011 and at Zimbabwe Republic Police, Sauerstown,
Bulawayo, in the province of Bulawayo, Accused 1 and 2 did
wrongfully, unlawfully and intentionally kill and murder Samson Ncube
a male adult in his life time there being.
The
facts as captured in the summary of the State are as follows:
Both
accused persons are police officers residing and working at
Sauerstown Police Station. The deceased one Samson Ncube and four of
his friends were arrested and detained at Sauerstown Police Station
for malicious damage to property on Saturday the 5th
day of March 2011. The two accused persons were then assigned this
case for further investigations.
During
investigations, the two accused persons took turns to assault the
deceased with a fan belt and a baton stick, causing the deceased to
confess to the charge of malicious damage to property. Subsequently,
on 8 March 2011 deceased was taken to court where he was remanded to
the 11th
of March 2011 in order to allow him time to look for money to
restitute the complainant. The deceased died on 10 March at his
family residence, Number 4 Churchil Crescent, Richmond, Bulawayo. The
body of the deceased was conveyed to United Bulawayo Hospital for
post mortem examination and the results showed that deceased died
from:
(a)
Intracranial haemorrhagic.
(b)
Head injury.
(c)
Assault.
Both
accused persons pleaded not guilty to the murder charge.
Accused
1 denied assaulting the deceased with a fan belt or a baton stick as
alleged. He stated that he does not know what killed the deceased as
he never inflicted the injuries that culminated in the death of the
deceased as indicated in the post mortem report.
The
second accused denied being part of the investigating team involved
in the deceased's case. She also denied assaulting the deceased but
admitted being on standby at the police station on the 6th
March 2011.
The
Issues
The
following are the issues that fall for determination:
1.
Whether or not the deceased was assaulted whilst in police custody?
2.
If so who is or are the assailants?
3.
Whether or not there exists a nexus between the assault and the
deceased's death?
4.
Whether or not the accused persons intended to kill the deceased?
The
evidence
The
State led evidence from six (6) witnesses.
Anderson
Phiri who is deceased's step father gave evidence that is largely
common cause. He told the court that on 6 March 2011, he received
information that the deceased had been detained at Sauerstown Police
Station on allegations that he had damaged someone's motor vehicle.
On 8 March 2011, he arrived home in the evening and found deceased
already in bed. When he spoke to the deceased about his arrest and
detention, the latter indicated that they would discuss the matter
the following day. The witness retired to bed and the following
morning he informed Israel (deceased's brother) that deceased had
been released. Later that morning he saw deceased and Israel talking
to each other and he left to sell his wares at nearby farms. On 10
March 2011 he saw deceased lying in the garden. He noticed that the
deceased was dead and he notified the police who took the body to the
mortuary.
This
witness was aged 83 years at the time he gave evidence. He got
confused when it came to the sequence of events and days.
However,
under cross-examination he said he saw black marks on deceased's
wrists up to the elbow and on both thighs as if some tar had been put
on him. He said the deceased told him that he had been tortured. On
further examination of deceased's body the witness said he saw some
bloody froth on the mouth and that deceased was bleeding from the
back of the head.
The
witness who is now self employed said he did standard four in
Mozambique a long time ago. He then came to Zimbabwe where he worked
at Zimplough until he retired. He is now self employed repairing
scotch-carts in the neighbouring farms.
The
next witness was deceased's older brother one Israel Ncube whose
evidence is basically that on 5 March 2011 at approximately 8:30pm he
arrived home from work and was informed that deceased had been
arrested on allegations of damaging Saungweme's car. On 8 March
2011 he learnt of deceased's release from his wife and early in the
morning on 9 March 2011 the deceased arrived at the witness' home.
The
deceased told the witness that he was assaulted by the police using a
“fan belt” all over
his body. The deceased
told the witness that he had been assaulted from
head to toe. When
asked about the offence of malicious damage to property the deceased
said he had promised to
pay since he had committed the offence when he was drunk.
The deceased said his body was sore and very painful from the
assault.
Although
the witness spoke to the deceased for approximately 30–40 minutes
he did not closely examine him as he thought the assault was minor.
When
it was put to him in cross-examination that anything could have
happened to the deceased between the time he saw him and the time he
died, the witness denied that proposition saying the deceased was
always at home during
that time as he failed to do a piece job he was supposed to do. The
witness said during that period, the deceased was not happy at all.
The witness maintained that deceased did not leave home from the time
he spoke to him on Wednesday until his death on Thursday and that
deceased did not tell him that he had been forced to drink anything
or that he had been electrocuted. None of his friends visited him
during that period.
The
third witness was Norman Saungweme whose evidence is largely common
cause. He narrated how on 5 March 2011, his car was damaged by the
deceased while driving along Falls Road in Bulawayo. According to him
the deceased threw two stones at the car. One of them hit the car
near the rear right door. He made efforts to have the deceased
arrested but when he next met his group the deceased was not amongst
them. As he was driving around he met his neighbour's employee who
told him that the young men he had described were staying at Castle
Arms and he went to the police to make a report. Whilst there, he saw
one of the young men who had been brought in on a different charge.
He asked this young man for the name of the person who had stoned his
car and was told that it was “Thembi”. He was accompanied by two
police officers to arrest the culprits. When it dawned on them that
they were all going to be arrested, they went to deceased's room
and told the witness and the police that he was the culprit. The
police then arrested all 5 of them and took them to the police
station. The witness was told to return on Monday.
On
Sunday evening around 6pm, parents of the young men visited the
witness in the company of his neighbour. They said they had come to
apologise but at the same time indicated that their children were
being assaulted whilst in police custody. The witness agreed to have
them released and they went to the police station where they were
told to come on a Monday. He returned on Monday and he was shown all
the suspects but the police said some would be released while others
would go to court. The rest were released except deceased and one
Sikhumbuzo Magagula.
The
first accused told him to meet them at court the following day.
At
court, the deceased was given time to look for money to compensate
the witness for the damages he had caused on his car. The deceased
was remanded to a Friday and the witness was told to return on that
day. He did, but did not see anyone. Later he learnt that a warrant
for deceased's arrest had been issued after deceased failed to
appear in court. In the afternoon, he received a message on his
cellphone to the effect that deceased had died.
Under
cross-examination by counsel for Accused 1 he said deceased was
walking barefoot at court and was limping. He said he tried to
withdraw the charge twice i.e. on Sunday and Monday but the police
especially Accused 1 would have none of it insisting that deceased
would be taken to court. When asked why he did not pursue his
intention to withdraw the charge at court, the witness said he did
not do so because he felt that the deceased was now safe.
The
State called Thembinkosi Shoko next. His testimony was that he knew
deceased as his friend and they were staying together at Winggate
(Castle Arms) Bulawayo. They had been drinking beer at Spar
Supermarket. He was drunk. On 5 March 2011 he was walking home with
his friends who included the deceased who was walking some distance
behind. He heard as if there was a struggle or fight. He heard
voices. Saungweme drove to where the witness and his friends were and
informed them that deceased had “stoned” his motor vehicle.
Later,
that evening at about 22:00 hours the witness and his friends
including the deceased were arrested and detained at Sauerstown
Police Station. The next morning (Sunday 6 March 2011) they were
taken into an office where they were assaulted with a “fan
belt” and button
sticks by the two
accused persons. The witness said it was actually a whip made of very
hard and strong rubber.
Deceased
admitted the charge and was taken to court.
He
said he knows accused persons as “Moyo and Mavis”, the former as
the investigating officer based at Sauerstown. As regards Accused 2
he said he knew her as one
of those who assaulted them and that he was told by “someone while
chatting.”
He further told the court that he picked
up the name “Mavis”
when police officers were “chatting
amongst themselves using first names.”
The
witness said they were assaulted “severely”
and that if an identification parade had been conducted he would have
been able to identify her.
He
told the court that although it was known at the time of their arrest
that deceased was the culprit the accused persons assaulted them
until deceased admitted committing the offence. He said there were
bicycles in the room and they were ordered to place their heads
underneath these bicycles whilst they were assaulted on their
buttocks and on the soles of their feet.
Asked
where he picked the name Mavis from, the witness could not say apart
from saying it was not in this room where they were assaulted.
He
said they were assaulted while lying on their stomachs abreast each
other. Deceased was also in this posture in a line. The witness said
he actually saw the deceased being assaulted by Accused 1. It took
deceased a long time to admit.
Gift
Nyoni was one of those arrested and detained with the deceased. His
evidence was that they slept in a cell and the following day they
were collected by Accused 1 who slapped him at the same time
enquiring who had stoned Saungweme's vehicle.
Asked
how he knew Accused 2's name he said he learnt of her name “after
the incident.” He knew her as Mutema and not by her first name.
According
to him the second accused assaulted them first and Accused 1 then
thrashed them uttering the following words: “Pano panofa munhu
pano” literally meaning “someone will die here”.
The
witness said he took a lot of interest in Accused 2 as she is one of
their assailants. He said he took note of her facial and physical
features. Further, he stated that no identification parade was
conducted to afford him an opportunity to identify the culprit. Prior
to the incident, he did not know the accused persons' names and
that he relied on his friends' version on the identity of their
assailants.
Under
cross-examination the witness said they were forced to lie on their
stomachs while they were being assaulted on the buttocks and on their
soles for approximately 40-45 minutes. He said after the assault he
had difficulties in sitting.
At
court he saw that deceased was walking with a limp.
The
State next called Malvern Van Heeden. His evidence is similar to that
of the last two witnesses. He told the court that he was assaulted by
two police officers whose names he “heard in the wooden
room” when they were
discussing them. The witness knows the accused persons as Moyo and
Mutema.
Asked
under cross-examination how they were assaulted, the witness told the
court that they were “made to lie on the floor on their stomachs
and they took a whip and assaulted us for a long time on the
buttocks”. Deceased was also assaulted. He further said his feet
were sore from injuries sustained during the severe assault which he
described as serious. The witness said there was a bicycle against
the wall which they were supposed to support during the assault.
Asked
why he did not report the assault the witness said he felt he could
not report since the accused persons were police officers. He also
said no identification parade was conducted.
The
State then called Biggie Ncube the Officer-In-Charge at Sauerstown
Police Station at the relevant time. His evidence was that he checked
on the five suspects and no complainants were received from them.
However, a relative of the deceased came to his office and told him
that Accused 1 had assaulted the deceased. No identification parade
was carried out because Accused 1 had been mentioned and the second
accused's description was given to him. He was of the view that it
was the duty of the investigating officer to carry out an
identification parade.
The
witness could not say who authorized the five suspects' detention
and was not familiar with events that occurred at the police station
during the relevant period. He, however, said there was only one
investigating officer – Accused 1. As regards Accused 2 he said he
was unable to tell how she became involved in this case but he
understood that the investigating officer Inspector Chirume had
carried out investigations that led to the identification of the
second accused.
Elson
Makono who in the company of Constable Calvin Mutema attended the
scene at deceased's home after an informant had made a report was
the next witness.
He
saw the deceased's body in the garden lying facing upwards. They
were not given any medical cards and they searched the house but did
not find any. He looked around for physical marks or injury or
foreign objects but found none, however, he noticed that deceased's
body was unusually dark. Since he had not seen any injury on the
body, he concluded that it was not necessary to bring in officers
from scenes of crime or homicide. However, he was instructed to
complete a form for a post mortem examination. He instructed the
family to have the body ferried by a private parlour. He handed the
form to officials from Family Funeral Parlour and they returned to
station.
The
State then closed its case and the first accused opened his case by
giving evidence in his defence.
He
is an officer in the Zimbabwe Republic Police currently based at
Nkulumane Police Station. He has been in the force for 13 years. He
was the investigating officer in the case involving the deceased and
his 4 colleagues. He told the court that on a Sunday he took all five
suspects into an office
where they carried out investigations
and ordered them to sit on the floor. He then called the first one
who told him that Samson (the deceased) had stoned the car. He
confirmed that in that office, there are bicycles used by officers.
After all 5 had said deceased had stoned the car he took them back to
the cells.
On
Monday the 7th
March 2011,
he took all the five suspects into the same office where he repeated
the same question. After receiving the same answer, he then recorded
a warned and cautioned statement from the deceased and witnesses'
statements from the rest. Since he was in charge of the
investigations he asked other officers to
assist him.
Later he phoned Saungweme to come and identify the culprit which he
positively did and left. He then released the rest of the suspects on
the officer in charge's instructions
after warning them to go to court the following day.
On
Tuesday (8 March 2011) he took deceased and one Samson Magagula to
court where he left them with prison officers.
According
to him although deceased was walking bare footed, he had no
difficulty in walking.
On
a Thursday, Saungweme phoned him enquiring about his money. While at
work on the same day he heard that the person who was found dead was
Samson Ncube and he unsuccessfully tried to contact Saungweme.
Eventually, he sent him a message that deceased had died.
Later,
he was informed that he was a suspect on a charge of murder.
He
said no identification parade was conducted. When the State's
version was put to him, he totally denied it adding that they do not
use such weapons when investigating cases and that baton sticks are
kept under lock and key and if one requires it, one would have to
book it out. He did not know why all the three witnesses said he
assaulted them as described.
Asked
where Accused 2 was when he was interviewing these suspects, he said;
“While
I was interviewing them Accused 2 walked in and asked me what they
were being charged with and I told her. She then went to her office
in CRLO”.
According
to him Accused 2 was brought in because “she is my colleague”
whose office is near his.
He
said the deceased was “quite and reserved.” The only time he
spoke was in the Set Down office. He denied forcing deceased to drink
diesel or electrocuting him saying if that happened it occurred
somewhere and not at the police station.
Under
cross-examination, he said;
“I
never assaulted them. They incriminated deceased. They were aggrieved
by being arrested yet the police knew who had committed the offence.
I kept on insisting that they should tell the truth.”
Further,
in answer to a question, he said;
“They
were not happy to be detained they now want to shift the blame to the
police. As I was asking
them, they kept on saying it was not necessary to ask them.
They were not happy about how they had been treated by Saungweme. My
name just came in because I was the investigating officer.”
Finally,
he said the deceased was probably injured after his release by the
court. He blamed the investigating officer of this case from improper
handling of the case by failing to conduct an identification parade
and conspiring with the witnesses to incriminate him.
The
second accused also gave evidence in her defence.
She
said she had been with the Zimbabwe Republic Police for 9 years. On
Sunday, 6 March 2011 while on standby duties she visited Accused 1 in
his office where she found the 5 suspects sitting on the floor. She
enquired from Accused 1 what charges they were facing and when told
she returned to her office.
The
witness said there were other officers in that office at that time.
She
denied assaulting the suspects or witnessing any assault by Accused
1.
The
witness said she did not know where the “suspects” i.e. the 3
State witnesses got her first name from but she suspected they were
told by the investigating officer. She admitted that although there
are two Mutemas
at the station, the other one is male and was not present on the day
in question.
Both
accused persons' legal practitioners indicated that they were
calling witnesses to testify for both of them.
The
first
defence witness was Linda Mukhavhi who is a police officer at
Sauerstown Police Station. Her evidence was that on the 6th
day of March 2011 she was on standby at Sauerstown Police Station
when she observed Accused 1 questioning the 5 suspects in the office.
She said they were being called one at a time. According to her, the
suspects were never assaulted in that office. She claimed to have
remained in that office
for most of the time. Further, she said the suspects were fixing
police officers for remaining in the cells for too long.
Asked whether she assisted Accused 1 in any way she said;
“I
witnessed the recording of the statements”.
While
in that office she said Accused 2 entered and asked what charge the
five suspects were facing and she then left after Accused 1 answered
her question.
The
next defence witness was Felix Sangu, a police officer based at
Sauerstown. He knows both accused persons as workmates. This witness'
role was to accompany Accused 1 and deceased to court where he claims
deceased did not complain to the set down prosecutors. He also said
the deceased had no shoes, had a pair of trousers and a vest. He did
not see any injuries on the deceased who he alleged was “walking
well”. The witness said earlier on Monday morning he had conducted
a cell inspection and all the five suspects told him they had no
complaints against the police. However, he was not able to state
whether or not there were other suspects in the cells apart from the
five.
The
next defence witness was Goodluck Katemaire a police prosecutor
manning court on the day deceased was placed on remand. He said due
to pressure of work, they could not finalise the matter on that day,
hence it was postponed to a Friday the 11th
of March 2011.
Interesting
though, the witness said, contrary to the norm the deceased was not
asked by the magistrate if he had any complaints against the police.
The deceased did complain mero
muto to the
magistrate about his treatment while in police custody. He did not
see any visible injury on the deceased. Also, he said the deceased
admitted the offence and promised to pay restitution to the
complainant on the next remand date.
After
this witness both accused persons who had agreed that these defence
witnesses were for the two of them then closed their cases.
Analysis
This
will be done with all the issues in mind. However specific findings
will be made in respect of each issue. I now proceed to deal with
them seriatum.
1.
The evidence of Thembinkosi Shoko, Gift Nyoni and Malvern Van Heerden
shows that all the five suspects, deceased included were assaulted in
police custody. They described in detail how they were assaulted and
what weapons were used by the assailants. What was referred to as a
fan belt turned out to be a “whip”. From their evidence, the
assault was perpetrated in a reckless manner over a period of time.
A
critical piece of their evidence is that when their parents visited
them on that Sunday, they complained about the assault. They
requested them to approach the complainant with a request that he
secured their release from police custody. Further, the evidence of
Saungweme corroborates that of the three witnesses in that he
confirmed that the 'suspects' parents approached him pleading
with him to withdraw the charges to save these witnesses from further
assaults by the police.
What
this means is that the witnesses told their parents that they had
been assaulted by the police. They identified the complainant as
Saungweme. The parents in turn approached Saungweme and requested him
to withdraw the charges so that the witnesses would be released. If
this had not happened, there was no way Saungweme would have known
about the assault.
Further
the fact that Saungweme approached the police on a Sunday with a
desire to withdraw the charge and ultimately having the witnesses
released lends credence to this evidence.
This
evidence was not challenged by the accused persons.
Indeed,
Saungweme returned to the police station on a Monday resulting in the
release of three of the five suspects. Unfortunately, deceased
remained in custody that Monday and was only taken to court the
following day. When asked about deceased's condition on Tuesday
(the day they were taken to court) Gift Nyoni said deceased was
“walking with a limp.”
Further,
the evidence of Israel Ncube, deceased's brother shows that
deceased was not well at all since Wednesday. Deceased never left
home and was unable to carry out manual work. Also, the post mortem
report shows that deceased died of -
(i)
Intracranial haemorrhagic.
(ii)
Head injury.
(iii)
Assault.
From
the above, we make a finding that the State witnesses were credible
witnesses who told the court the truth as regards the assault. We
therefore make the following findings in respect of the first issue;
(a)
The five suspects
were assaulted in police custody by police officers.
(b)
The assailants used the weapons described by the witnesses.
(c)
The deceased
was assaulted while in police custody.
(d)
The deceased was assaulted indiscriminately.
2.
The next issue is; who
assaulted the deceased and the other suspects? I must point out that
the proper question here is who assaulted the deceased?
It
should be noted that identification is not an issue as regards the
first accused person. This is so because it was never an issue during
the trial.
It
is common cause that Accused 1 was the investigating officer who
dealt with the deceased's case from Sunday to Tuesday when he took
him to court. It is therefore out of the question that any other
police officer/s could have assaulted the deceased and his friends on
that Sunday. The fact that Accused 1 has not alleged that, is proof
that it did not happen.
Accused
1 admitted that he interrogated the five suspects on that Sunday. He
also admitted that he recorded warned and cautioned statements from
them on that day.
Further, he confirmed that deceased admitted
the charge of
malicious damage to property to him as the investigating officer. He
confirmed Saungweme's visit. He admitted that he took deceased to
court and was later informed of deceased's death.
The
three State witnesses told the court that they (deceased included)
were assaulted by Accused 1. Accused 1 denies this. Apart from
Accused 1's compatriots, there were no other witnesses to the
assault. All police officers who testified as defence witnesses
denied witnessing the assault described by the three State witnesses.
The
question is; who is telling the truth here?
We
have already made a finding that the deceased and 3 State witnesses
were assaulted in police custody. The only officer who had
an interest in this matter is Accused 1.
The three State witnesses said the assaults stopped after deceased
admitted the crime. It is common cause that it is Accused 1 who
recorded a warned and cautioned statement from the deceased and
witnesses' statement from the four suspects. Therefore it follows
that if the reason for the assault was to extract confessions, the
only person who needed those confessions is Accused 1.
Unlike
the State witnesses' version which is clear on what happened to
them that Sunday morning the first accused's version is
contradictory.
For
example, according to him, in evidence in chief, the interview of the
“suspects” did not
take long that Sunday
morning as the first
suspect told him the deceased was responsible and he returned them to
the cells. He
said he then repeated the exercise on Monday and recorded statements.
Yet, under cross-examination in answer to a question as to why these
suspects said he assaulted them Accused 1 said;
“As
I was asking them, they kept on saying it was
not necessary to ask them. They were not happy about how they had
been treated by Saungweme.
My name just came in as I was the investigating officer… I kept on
insisting
that they should tell the truth.” (my emphasis)
Quite
clearly, Accused 1 took much longer with the suspects than he is
prepared to admit. The question then becomes; how
was he insisting that they tell the truth?
Also
in evidence in chief he said;
“On
Sunday I was alone but there were other officers doing other duties.”
Yet
in his warned and questioned statement he said five police officers
assisted him to interview the suspects. This was repeated in the
Defence Outline where these police officers were mentioned by their
names.
He
also said finger printing was done on Sunday while the recording of
deceased's warned and cautioned statement was done on Monday
together with the recording of witnesses' statements from the rest
of the suspects.
One
of the defence witnesses Constable Mukavhi in describing Sunday's
events said;
“They
were called one by one and they were being asked in connection with
the charge.”
Asked
how exactly she assisted Accused 1 she said;
“I
assisted in the recording of these statements and I would be sent on
errands.”
In
our view, there are numerous problems with this evidence.
Firstly
only one warned and cautioned statement needed witnessing. Secondly
and perhaps more importantly, this statement together with witness's
statements from the other four suspects were recorded on Monday and
not on Sunday. Therefore, Accused 1 was not being truthful when he
said he interviewed the five suspects on Sunday in the presence of 5
police officers.
Thirdly,
Accused 2 who was mentioned in the Defence Outline as one of those
who assisted Accused 1, denied ever carrying out such a role.
Constable
Mukavhi lied that she assisted him on a Sunday when it is common
cause that these statements were recorded on Monday.
Another
officer who was said to have assisted Accused 1, one Constable Sangu
was not on duty on Sunday but reported for duty on Monday. He
however, categorically denied assisting Accused 1 during the
suspects' interview.
Accused
1 did not call the remaining officers he mentioned in his Defence
Outline.
In
our view, Accused 1's evidence surrounding the events of the
fateful Sunday is totally incredible. It contains falsehoods and
lacks corroboration. We therefore accept the State witnesses'
evidence wherever it differs with that of Accused 1.
As
regards Accused 2, identification is clearly an issue.
That
this was the case became apparent on 18 July 2011 when a warned and
cautioned statement was recorded from her. In that statement which is
exhibit 3B, she denied having anything to do with the deceased and
his friends. Notwithstanding this clear position, the investigating
officer surprisingly failed to have an identification parade
conducted.
It
is trite law that where identification is in issue, the evidence of
identification should be approached by the courts with some extreme
caution. In S
v Mtetwa
1972 (3) SA 767 (A) at 768 C HOLMES JA said;
“Because
of the fallibility of human observation, the evidence of
identification is approached by the courts with some caution. It is
not enough for the identifying witnesses to be honest; the
reliability of his observation must also be tested. This depends on
various facts such as lighting, visibility and eye sight, the
proximity of the witness, his opportunity for observation, both as to
time and situation, the extent of his prior knowledge of the accused,
the mobility of the scene; corroboration; suggestibility; the
accused's face, voice, built, gait and dress, the result of the
identification parades if any, and of course, the evidence by or on
behalf of the accused.
The
list is not exhaustive.
These
factors or such of them as are applicable in any particular case, are
not individually decisive, but must be weighed one against the other,
in the light of the totality of the evidence and the probabilities.”
See
also S
v Dhliwayo and Anor
1985 (2) ZLR 101 (S)
at 107A – D; S
v Ndhlovu & Ors
1985 (2) ZLR 261 (S) at 263G – 264E; and S
v Mutondi
1996 (1) ZLR 367 (H); S
v Marado
1994 (2) SALR 410.
As
regards caution GILLESPIE J (as he then was) in the Mutondi case
supra
said;
“caution
is not demonstrated by the mere statement that one is aware of the
need for caution, where the subsequent assessment shows no more than
superficial comparative assessment of demeanor. The shibboleth that
the identifying witness was 'composed and remained unshaken during
cross-examination' is wholly inadequate as a demonstration of
caution. The uttering of any cautionary words must be supported by
the demonstration in the reasoning of a cautious approach
paradoxically, that utterance itself becomes unnecessary where the
judgment shows alertness to the dangers concerning which the
cautionary rule in question seeks to address.…”
In
casu, the State
conceded that the failure to hold an identification parade leaves the
possibility of mistaken identity unshaken.
The
evidence of identification of Accused 2 is unclear
in that all the witnesses did not know the second accused prior to
that day.
Gift
Nyoni for example said “a lady assaulted us first” before Accused
1 came and further assaulted them. Asked in cross-examination why he
was able to say Accused 2 assaulted them, he said “I have not
forgotten who had assaulted me – it was her.”
“Q.
How were you able to identify these accused persons?
A.
I did not know their names.
Q.
Where did you get to know the name Mutema?
A.
I was interested in the person and my friends did not forget. I came
to know her as Mutema and not by her first name.”
The
other State witness one Sithembinkosi Shoko's evidence in that
initially he said he was told Accused 2's name by “someone” and
later said he heard the name Mavis when police officers were chatting
amongst themselves
using first names.
Malvern
Van Heerden's evidence of the identity of Accused 2 is shaky. This
can be illustrated by the following exchange:
“Q.
How many assaulted you?
A.
Moyo and Mutema.
Q.
How did you get to know them?
A.
Because they assaulted me – I heard from the wooden
room where we were discussing them.”
From
this evidence, it is clear that there was a high degree of
suggestibility. All witnesses admitted that they discussed the second
accused's name amongst themselves. Some simply relied on their
colleagues' memory. They obviously picked the names Mavis and
Mutema after they had been assaulted. There is a real possibility
that they were mistaken since the circumstances under which they
picked up the names are murky although the rest of the circumstances
are redolent with suspicion against her.
Be
that as it may, one remains aware of the apothegm of the Roman man of
letters of the 1st
Century BC Publilius Syrius “Judex
dam natur ubi nocens obsolvitur”
(“where the guilty is acquitted the Judge is condemned”).
However,
in casu,
if blame is to be attributed for this result, it rests more justly on
the shoulders of the investigating officer who did not conduct an
identification parade and perhaps of the State counsel who went to
trial on an incomplete and inadequate docket.
The
court may take comfort in another aphorism, falling from the eminent
Sir William Blackstone, and one which comments itself to all:
“It
is better that ten guilty persons escape than one innocent suffer.”
See
also S
v Shelton Vingaso and
Others HH18-97.
For
these reasons, we make the following findings:
(a)
The State witnesses, Thembinkosi Shoko, Gift Nyoni and Malvern Van
Heedrden are credible witnesses whose testimony as regards the
identity of Accused 1 we accept.
(b)
Accused 1 performed poorly as a witness and we therefore reject his
evidence.
(c)
Accused 1 assaulted the deceased in the manner described by the three
witnesses and as shown by Israel Ncube.
(d)
Accused 1 used a baton stick and a fan belt shaped like a whip.
(e)
There is insufficient evidence to link Accused 2 to the commission of
this crime.
(f)
The State has failed to prove its case against Accused 2 beyond a
reasonable doubt.
3.
The next issue is whether or not there exists a nexus between the
assault and the deceased's death.
According
to the law, for murder to be established, it must be proved that the
accused caused the death of the deceased. It must be proved that the
accused was both the factual and legal cause of death.
G.
Feltoe in A Guide to
the Criminal Law 3rd
edition at pages 7 – 8 puts it thus:
“The
test to determine whether X was the factual cause of the consequence
is to ask: but for X's actions would the consequence have occurred?
If it would not have occurred but for X's conduct, then X is the
factual cause of that consequence. If it would still have occurred
anyway, then X is not the factual cause of the end result… The test
for legal cause is to ask whether the consequence was reasonably
foreseeable or was within the range of human experience. If the
consequence was reasonably foreseeable, then X is held to have been
the legal cause of that consequence.”
See
also S
v Runokonda
S-27-85; S
v Ndlovu
S-21-87.
In
casu, the starting
point is the post mortem report which lists the cause of death as;
(a)
Intracranial haemorrhagic.
(b)
Head injury.
(c)
Assault.
We
have already found that the first accused assaulted the deceased with
a baton stick and a fan belt all over the body. It was contended for
Accused 1 that he did not cause deceased's death for the following
reasons;
(i)
He did not assault the deceased at all;
(ii)
Even if it were to be found that he assaulted him, the assault must
be limited to that described by the three State witnesses, namely,
that they were assaulted on the buttocks and underneath their feet.
Since they said they were not assaulted on the head, it follows that
Accused 1 did not assault deceased on the head.
(iii)
All three State witnesses deny being tortured in police custody
through the use of electricity or being forced to drink diesel.
(iv)
Accused 1 must therefore be found guilty of assault if it is found
that he assaulted the deceased.
We
have already made a finding in respect of the first point. As regards
the second, it does not follow that simply because the witnesses were
not assaulted on their heads, the deceased was not.
From
the evidence, the assault was prolonged and carried out in a reckless
manner. All witnesses described the texture of the weapons used as
very hard. Depending on the force wielded, these weapons have the
capacity to cause injuries observed by the doctor i.e. extensive
haemotoma on the scalp.
In
our view, the submission that deceased died as a result of injuries
caused by electricity and diesel is misleading in that the post
mortem is clear as to the cause of death. It excludes these as
contributory factors. We must point out though that the origin of
these marks of violence remain a mystery in that from the totality of
the evidence, on one hand there is no way deceased would have
sustained these injuries after his release. On the other hand, while
it is common cause that deceased remained in custody for a day and
night after his colleagues had been released, it would be speculation
to find that they were inflicted by accused on Monday when deceased
was still in police custody. Be that as it may, those injuries did
not cause the deceased's death and therefore are irrelevant to this
inquiry.
We
must also indicate here that while further clarification could have
been given by the pathologist, we were informed at the commencement
of the trial that this was not possible because the doctor had long
returned to his country of origin.
We
therefore find that the deceased died as a result of Accused 1's
actions. His conduct is both the factual and legal cause of
deceased's death.
4.
The last issue is whether or not the first
accused intended to kill the deceased.
In
S
v Mugwanda S-19-02
it was held per CHIDYAUSIKU CJ that to establish intention it is
sufficient if X subjectively foresaw the possibility of his act
causing death and was reckless of such result… Subjective
foresight, like any other factual issue, may be proved by inference.
For
a court to return a verdict of murder with actual intent it must be
shown that either:
(a)
X desired to bring about the death of his victim and succeeded in
completing his purpose; or
(b)
while pursuing another objective he foresees the death of his victim
as a substantially certain result of that activity and proceeds
regardless.
A
verdict of murder with constructive intent requires the
foreseeability to be possible (as opposed to being substantially
certain making this a question of degree more than anything else).
In
S
v De Bruyn
1968 (4) SA 498 (A) HOLMES JA defined dolus
eventualis in the
following terms:
“The
accused foresees the possibility however remote, of his act resulting
in death to another, yet he persists in it, reckless whether death
ensues or not. On analysis, the multiple characteristics of this form
of dolus
are;
1.Subjective
foresight of the possibility however remote, of his unlawful conduct
causing death to another.
2.Persistence
in such conduct, despite such foresight.
3.An
insensitive recklessness (which has nothing in common with culpa).
4.The
conscious taking of the risk of resultant death, not caring whether
it ensues or not.
5.The
absence of actual intent to kill.”
Burehell
and Hunt Vol 1 at 152 – 4 state that the 'recklessness”
required for dolus
eventualis:
“means
the taking of a conscious risk. The accused foresees the consequence
in question as a real possibility and yet persists in his conduct
irrespective of whether it does result or not … It seems in every
situation where the accused does not foresee the consequence as at
least a real possibility and nevertheless persists in his conduct
irrespective of whether it result or not, he does consciously take
the risk of it happening.”
Recklessness
in this context means consenting, reconciling himself to it or taking
it into the bargain – see S
v Swanepoel
1983 (1) SA 434 (A).
In
principle it does not matter in respect of dolus
eventualis whether
the accused foresees (subjectively) the possibility as strong or
faint, as probable or improbable, provided his state of mind in
regard to that possibility, is 'consenting', 'reconciling' or
'taking into the bargain'.
In
our law, dolus
eventualis is
commonly referred to as legal intention which exists where an accused
does not mean to bring about the criminal consequence but engages in
an activity which he subjectively foresees there is a real
possibility that a criminal consequence may occur and he nonetheless
proceeds with his activity, reckless as to whether or not the
consequence ensues.
Foresight
may be inferred from the facts where an accused denies that he
foresaw the consequences – see Feltoe supra
at p 10.
In
casu, on the
evidence, the only reasonable inference is that the first accused had
the requisite intent in the form of dolus
eventualis or legal
intention to kill the deceased. We say so for the following reasons:
(a)
Firstly, death arising from a serious assault on a vulnerable part of
a human body is a foreseeable phenomenon in that a serious assault
leads to serious injury, which in turn may lead to death. Accused
foresaw the real possibility of death occurring. Despite this
realization, the accused exhibited insensitive recklessness by
delivering blows to the deceased's head as reflected in the post
mortem report.
(b)
Secondly, the resultant injuries can only be attributed to the use of
excessive force in that the blows caused “extensive haematoma on
the scalp” and “extensive intracranial haemorrhage” in the
brain.
(c)
Thirdly, there was persistence in that the assault was prolonged and
serious. The accused's sheer resolve and determination to inflict
harm is demonstrated by the fact that he managed to assault five
people over a period of time.
(d)
Finally, by uttering the words “pano
panofa munhu pano”
(someone is going to die here), the accused consciously took the risk
of death occurring into account.
In
our view, this spontaneous utterance, made during the assault,
clearly shows the accused's state of mind in regard to the
possibility of death. More significantly, it shows that the accused
reconciled himself to the possibility of death resulting or took the
possibility of death into the bargain but notwithstanding that,
persisted in his conduct. Put differently although accused did not
mean to bring about deceased's death, he assaulted the deceased in
circumstances where he subjectively foresaw the real possibility of
deceased's death, but nonetheless proceeded with the assault,
reckless as to whether or not death ensued.
For
these reasons, we find the first accused guilty of murder with
constructive intent. The second accused is found not guilty and
acquitted. The court finds that the murder was not committed in
aggravating circumstances.
Sentence
In
assessing an appropriate sentence we will take into account what has
been submitted on your behalf by your counsel in mitigation. We will
also consider the aggravating features in the case. Particularly we
will consider the fact that you are a first offender, married with
two young children. We were also informed that you are remorseful.
However,
what is aggravating is that murder is a very serious offence in that
it involves loss of life. The courts have a duty to uphold the
sanctity of human life.
Assaults
on suspects in police cells is a very serious crime in that it
constitutes a grave violation of human rights and dignity. It is akin
to torture which is outlawed not only in our Constitution but
internationally. Further, such behaviour brings the Zimbabwe Republic
Police in its entirety into disrepute by tarnishing its good image.
Also, it engenders feelings of hostility in the public which is
detrimental to the maintenance of peace and security.
Police
are the custodians of the law therefore they are not supposed to
break it.
It
will be a sad day if police stations are allowed to be lynch-houses
where suspects dread to be in. Assaulting suspects is primitive and
barbaric. The courts will not countenance barbarism in the
investigation of cases by law enforcement agencies. There are modern
methods or techniques of investigating cases that the police should
adopt. Fighting crime does not mean that police officers must
literally fight suspects in police cells.
What
makes this case a bad one is that the offence the deceased had
committed was a petty one and he had admitted his guilt. On those
basis, the accused's conduct was particularly reprehensible.
For
these reasons you are sentenced as follows:
18
years imprisonment of which 3 years imprisonment is suspended for 5
years on condition accused does not within that period commit an
offence involving violence upon the person of another of which upon
conviction shall be sentenced to imprisonment without an option of a
fine.
Effective:
15 years imprisonment.
Prosecutor General's Office,
State's legal practitioner
Cheda & Partners, 1st
accused's legal practitioners
Dube-Tachiona, Tsvangirai,
2nd accused's
legal practitioners
