Murder re: Indemnified Persons, Death in Custody of Security Personnel and the Shoot To Kill Policy

HH66-10 : THE STATE vs BENJAMIN NEVER
Ruled By: KUDYA J and ASSESSORS: TUTANI and MUTAMBIRA

Counsel for the accused applied for his discharge and acquittal. He relied on the provisions of section 3 of the Protection of Wildlife (Indemnity) Act [Chapter 20:15] which reads –“3. IndemnityNo criminal liability shall attach to any person who, at the relevant time, was an indemnified person in respect of any act or ...

Counsel for the accused applied for his discharge and acquittal. He relied on the provisions of section 3 of the Protection of Wildlife (Indemnity) Act [Chapter 20:15] which reads –

“3. Indemnity

No criminal liability shall attach to any person who, at the relevant time, was an indemnified person in respect of any act or thing whatsoever advised, commanded, directed or done or omitted to be done by him, whether before, on, or after the date of commencement of this Act, in good faith, for the purposes of, or in connection with the suppression of the unlawful hunting of wildlife.”

The statute in question came into operation on 8 September 1989. The deceased was shot and killed on 29 October 2005 at around 3 am while he was poaching with fellow villagers. His partners in crime testified that they all knew that they were committing a criminal offence by hunting in a game park without a requisite licence. That they were aware that they were not permitted to hunt in the game park was further demonstrated by the fact that they went to do so in the bewitching hours of the morning.

Marko Chimudende testified that he was on anti-poaching patrol duties in the game park in question with the accused person.

They divided the area of patrol between them, and agreed to meet at a certain rendezvous in the game park. When he reached the rendezvous he heard the three gunshots ringing in the air in rapid succession. The accused made a report to him of how he shot one of the poachers as he tried to shoot one of the fleeing hunting dogs. The two went to check the deceased and found him in the throes of death, bleeding from the thigh injury. When the police arrived, they picked three spent cartridges from the three different spots.

The testimony of Marko Chimudende showed that the accused was an employee of the Parks and Wildlife Management Authority, who is an Indemnified person as defined in paragraph (6) of section 2 of the Protection of Wildlife (Indemnity) Act [Chapter 20:15]. In dealing with the Indemnity and Compensation Act, 1975, which was similarly worded, BECK J, with the concurrence of SMITH J in S v Gwevera & Ors 1978 RLR 466 (GD)..., stated that –

“The words “in good faith” have been used in s4 to accentuate the need for honesty, and hence for the absence of an ulterior motive, in relation to anything done for the purposes of, or in connection with the suppression of terrorism.”

The onus lay on the State to prove a prima facie case against the accused person that he acted dishonestly, or with an ulterior motive, in shooting the deceased.

The testimonies of the State witnesses lack evidence upon which a reasonable court, acting carefully, might properly convict. See S v Kachipare 1998 (2) ZLR 271 (S)...,. It does not show that the accused was not acting in good faith, or that he acted with an ulterior motive for the purposes of, or in connection with, the suppression of the unlawful hunting of wildlife. The concession by counsel for the State, for the discharge of the accused at the close of the State case, was therefore properly made.

In the result, I decline to place the accused person on his defence. He is found not guilty and is acquitted of the charge of murder, or of any other competent verdict that might arise therefrom.

SC47-14 : MAXWELL BOWA vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

The facts of this case, which are either common or were not seriously in dispute during the trial proceedings, are as follows. The appellant was employed as a Senior Game Ranger by the Department of National Parks and Wildlife. Sometime in February 2012, an Assistant Commissioner with the Zimbabwe Prison Services was arrested at a road ...

The facts of this case, which are either common or were not seriously in dispute during the trial proceedings, are as follows.

The appellant was employed as a Senior Game Ranger by the Department of National Parks and Wildlife. Sometime in February 2012, an Assistant Commissioner with the Zimbabwe Prison Services was arrested at a road block whilst carrying ivory. On his arrest, he implicated one Tanaka Nyoni and Moses Makwavarara as the source of the ivory. Thereafter, further information was received by the Department of National Parks and Wildlife to the effect that one Makwavarara operated as the gunner, Lennon Nkosana as the carrier and Tanaka Nyoni as the sponsor of the illegal hunting syndicate.

Lennon Nkosana is the deceased.

On the day in question, that is 12 June 2012, a group of ten parks rangers, accompanied by two police officers, proceeded to Simuchembo area of Gokwe North in an operation to arrest the suspected poachers. Nine of the game rangers were armed with rifles. Simuchembo area is within walking distance of a number of national parks areas. It is common cause that on arrival at Tanaka Nyoni's homestead, at about 1.00am, the rangers discovered that Tanaka Nyoni was not present. On further questioning the employees present, namely, Africa Dakura, Tichaona Makoni and Tichaona Ndlovu, the game rangers formed the impression that Tanaka Nyoni was putting up at his father's place of residence. With the employees, the rangers proceeded to Tanaka Nyoni's father's homestead. On arrival, they split into two groups in order to secure two paths that exited from the homestead. It is common cause the appellant was in the group that first approached the homestead. It was at that stage that Africa Dakura's wife indicated a house in which Tanaka Nyoni was believed to have been sleeping. Tanaka Nyoni's vehicle was also parked at the homestead. What happened immediately outside the house was in dispute but it is clear that two persons ran out of the hut – one after the other - and disappeared into the darkness. It is also common cause that the deceased, Lennon Nkosana, also came out of the same hut after which the appellant then fired his firearm hitting him in the chest and killing him instantly. The gunfire awakened other occupants of the homestead, including the mother of the deceased, who, on discovering that the deceased had died, challenged the rangers not to go away and grappled for possession of the firearm with the appellant. The rangers, together with the two police officers, and Tanaka Nyoni's employees, managed to flee from the homestead. They eventually proceeded to Chitekete Police Base where the appellant was arrested the following morning and his weapon confiscated.

As indicated earlier, the above facts were largely common cause, or at least not seriously in dispute, during the trial. However, the circumstances surrounding the actual shooting of the deceased were the subject of much controversy.

The appellant claimed that he believed he was under attack but such claim was rejected in its entirety by the trial court. In order to determine whether the court a quo correctly assessed the evidence before it, it becomes necessary for this court to analyse relevant portions of the evidence led before the court.

Four witnesses gave evidence for the State. These were Lesbern Nkosana, Africa Dakura, Teddy Nhidza and Aaron Chiramba. For the defence, the appellant, Archbat Zhou and Jonathan Mashava gave evidence. The summary of their evidence follows;

Lesbern Nkosana was the deceased's brother and was sharing a bed with the deceased. He was twenty (20) years old at the time. In an inner room were their younger brothers Liverton, Luxon and McDonald. Armed game rangers forcibly opened the door and ordered everyone to lie on the floor. He and the deceased were then assaulted as the rangers asked where Tanaka Nyoni was. As the rangers illuminated the inner room in which their younger brothers were sleeping, Luxon and McDonald, aged 16 and 17 respectively, came out of the inner room and walked out. The deceased immediately followed them and shortly thereafter there was the sound of a gunfire. When he went out, he found the deceased lying on the ground, about three metres from the door, bleeding from the chest. He appeared to have two chest wounds. He denied that the deceased was holding an axe at the time he exited from the house. He told the court that although the moon had risen, visibility was not good. He admitted that his mother followed the rangers and grabbed them, telling them they were not going anywhere after killing her son. He denied that Tanaka Nyoni was present at the homestead or that he was one of the two that ran out of the house.

Africa Dakura was employed by Tanaka Nyoni and was staying at Tanaka Nyoni's homestead together with his wife. He shared the residence with Tichaona Makoni and Tichaona Ndlovu aged twenty two and fifteen years respectively. It was his evidence that whilst asleep, game rangers came into the house where he was sleeping with his wife and child. They assaulted him with sticks and booted feet asking where Tanaka Nyoni was. When they told the rangers that Tanaka Nyoni was not present, he, together with his wife and the two young men, were ordered to accompany them. He told the court that on the way, the rangers would assault him, asking him where the elephant tasks were as well the firearm that was being used to hunt elephant. He admitted that they found Tanaka Nyoni's vehicle parked at his father's homestead that night, having been brought there by Lesbern Nkosana, his younger brother, and that it was the same vehicle that was used the following morning to ferry the deceased's body to the police station.

Teddy Nhidza was one of the two police officers who accompanied the rangers. He was made to understand that the rangers wanted to arrest one Tanaka Nyoni who was suspected of dealing in ivory and possessing a firearm. He denied that Africa Dakura was assaulted. It was his evidence that when they proceeded to Tanaka Nyoni's father's residence they had been told by Africa Dakura and the two young men, both known by the name Tichaona, that he was there. He denied seeing any axe or other weapon at the scene where the deceased was shot. He admitted that there was a National Park located about three to four kilometres from Tanaka Nyoni's homestead and that the police station was receiving many reports of the killing of elephant. During the questioning of the employees, information was given by one of the two young men to the effect that the firearm belonging to Tanaka Nyoni had been collected by a person called Ndombolo. He denied hearing any warning shots before the deceased was shot. It was also his evidence that the vehicle that Tanaka Nyoni normally used was parked in front of his father's homestead where the incident occurred. All in all he recovered a total of six (6) spent cartridges.

The State also called Aaron Chiramba who was the member-in-charge of Chitekete Police Base. It was him who arrested the appellant the following morning and recovered what he called a commando rifle. The trigger of the rifle could be positioned on safe, rapid and automatic. On rapid, it would only fire one bullet at a time whilst on automatic it would release many bullets at the same time. He confirmed that there were a number of national parks close to the Police Base….,.

In his defence, the appellant told the court that their department had received information that Tanaka Nyoni was engaged in poaching together with his younger siblings. On the fateful night, it was Africa Dakura who indicated that Tanaka Nyoni was not present at his homestead and that he had proceeded to his father's homestead. It was Africa Dakura and his wife, Agnes, and the two young men, both by the name Tichaona, who led them to Tanaka Nyoni's father's homestead. He confirmed that the group of rangers split into two groups as they approached the homestead. It was his group that approached the house that had been indicated by Agnes and when he knocked and indicated that he and his colleagues were from the National Parks, the door was not immediately opened. It was only opened when he knocked for the second time, at which stage one man opened the door, came out and ran away. He was followed by another, who appeared to be holding a gun. He then fired warning shots and it was then that the deceased came out holding an axe and walked in his direction. Although he told the deceased to throw down the axe, the deceased continued walking at a fast pace in his direction at which stage he fired toward the hand holding the axe. In the process, however, the deceased was hit in the chest and he fell. He was thereafter accosted by the deceased's mother and realising that a grave situation had arisen, he and the other rangers then left the homestead running.

He denied that on arrival at the homestead, they forcibly opened the door and went in. This would not have been wise because they were aware that Tanaka Nyoni, whom they were looking for, was armed. He confirmed that his firearm was on automatic. He denied that he intended to kill the deceased. Although he did not personally know Tanaka Nyoni, he was aware that Tanaka Nyoni operated in a ring which included his siblings and one Moses Makwavarara. It was his evidence that the other rangers in his company must have seen the axe that the deceased dropped. It was also his evidence that the two men who ran out of the house before the deceased did so had taken a different direction whilst the deceased, on coming out of the house had advanced towards him.

Jonathan Mashava told the court he is in the Investigations and Security section of the Parks and Wildlife Management Authority at Gokwe. He was part of the group that went to apprehend persons suspected to have been involved in the poaching of elephants at Chirisa Game Park four days earlier. The appellant was his senior during the operation. Amongst the poachers to be apprehended was one Tanaka Nyoni who was known in poaching circles as “TK”. They also intended to apprehend one Ndombolo, the deceased, Moses Makwavarara and Jimmy Sibanda.

It was Africa Dakura who advised them that since the arrest of the Prison Service Assistant Commissioner, in February 2012, Tanaka Nyoni was no longer putting up at his homestead but rather at his father's homestead. It was for that reason they proceeded to Tanaka Nyoni's fathers' homestead where Africa Dakura's wife indicated the house in which Tanaka Nyoni was supposed to be sleeping. He did not get the opportunity to see the deceased's body after the shooting. It was his evidence that Chirisa Safari area was about ten kilometres due south of Tanaka Nyoni's residence, whilst Chizarira National Park was about three kilometres due west of the homestead. It was also his evidence that poaching is a violent offence and very often involves the use of firearms. For that reason, they are equipped with AK 47 assault and other rifles to defend themselves. It was upon interviewing Assistant Commissioner Mudzamiri of the Prison Service, who had been found in possession of ivory, that he learnt that Moses Makwavarara acted as the gunner, the deceased as the carrier and Tanaka Nyoni as the sponsor. This information was treated as classified and was not available generally to the other rangers. However, the names of the suspects were discussed at the Police Base that night before the rangers left for Simuchembo area. He told the court he personally knew both Tanaka Nyoni and the deceased, Lennon Nkosana, who was tall and wore dreadlocks.

Archbat Zhou was, like the appellant, a Senior Ranger with the Department of National Parks and Wildlife. He had been a ranger for 24 years. He was involved in the operation that resulted in the death of the deceased. He knew both Tanaka Nyoni and the deceased as persons who were suspected of engaging in poaching elephant. On the night in question, he saw two young boys come out of a house at Tanaka Nyoni's father's homestead. The house had been indicated to them by Agnes, Africa Dakura's wife. He was standing near the entrance at the time the appellant knocked. When the door was opened, he noticed there were two men sleeping in the outer room and three in the inner room. He walked back in order to alert the other group of rangers, leaving the appellant and Mabushe standing near the entrance. It was then he heard gunshots - at least seven rounds - and he went back. He found the deceased lying down and close to his feet was an axe. He went back to the other rangers who were on the perimeter of the homestead and told them that a man had been shot. When they went back into the homestead a number of people came out of the adjacent houses, and, fearing for their lives, they hurriedly left the homestead.

In its judgment, the court a quo rejected the appellant's claim that he was protected by the provisions of section 3 of the Protection of Wildlife (Indemnity) Act [Chapter 20.15]. The court was of the view that a person in the position of the appellant would be indemnified where “for instance (sic) he comes across poachers who resist arrest and threaten to harm him or threaten to kill him.”

In view of its finding that the deceased was not armed and was not resisting arrest but was simply running out of the house to avoid further assaults by the other rangers inside, the court found that the appellant was not entitled to such indemnity.

On the appellant's claim of self defence, the court was of the view that the appellant was not defending himself as the deceased was not armed and was running away to avoid further assaults. The court accordingly rejected that defence as well, and, consequently found the appellant guilty of murder with actual intent, and, upon finding no extenuating circumstances, imposed the ultimate sentence of death on the appellant.

In this appeal, the appellant has attacked both the conviction for murder with actual intent and the finding that there were no extenuating circumstances. In particular, the appellant has submitted that the court a quo misdirected itself in relying on the evidence of Lesbern Nkosana and Africa Dakura and in failing to appreciate that Lesbern Dakura was the deceased's brother as well as the brother of Tanaka Nyoni and therefore not an independent witness. The appellant has further attacked the evidence of the two witnesses on the basis that they were also suspected of complicity in the poaching of elephant and should therefore have been treated as accomplices. Further, the appellant has submitted that both the defence of self-defence and the defence of indemnity under the Protection of Wildlife (Indemnity) Act [Chapter 20.15] should have succeeded….,.

…,. The issue that now arises is whether the provisions of the Protection of Wildlife (Indemnity) Act [Chapter 20.15] apply to the appellant. Section 3 of the Protection of Wildlife (Indemnity) Act [Chapter 20.15] provides:-

“3. Indemnity

No criminal liability shall attach to any person who, at the relevant time, was an indemnified person, in respect of any act or thing whatsoever advised, commanded, directed or done or omitted to be done by him, whether before, on or after the date of commencement of this Act, in good faith for the purposes of or in connection with the suppression of the unlawful hunting of wildlife.”

The pertinent question, therefore, is whether the killing of the deceased was done “in good faith for the purposes of or in connection with the suppression of the unlawful hunting of wildlife.”

In coming up with the above provision, it must have been the intention of the legislature to provide indemnity to armed personnel in the employ of the State who are involved in anti-poaching activities in respect of conduct which might otherwise attract criminal sanction if such conduct is done in good faith for the purpose of or in connection with the suppression of poaching activities. In my view, the Protection of Wildlife (Indemnity) Act [Chapter 20.15] recognizes the fact that such personnel may find themselves in situations in which decisions have to be made in a split second in order to subdue, arrest or contain dangerous persons involved in poaching activities. As long as the conduct is bona fide and intended to suppress poaching of wildlife such personnel would be indemnified.

It is clear from the above provision that a person claiming indemnity must satisfy two important requirements;

(i) The first is that such person must have been acting in good faith.

(ii) The second is that the act done by him must have been for purposes of or in connection with the suppression of the unlawful hunting of wildlife.

These two requirements must be read in conjunction with each other. If good faith is lacking or if the act is not for the purposes of or connected with the suppression of the unlawful hunting of wildlife then such indemnity would not attach to such person.

But what do these two requirements entail?

Dealing, firstly, with the question of good faith, I can do no better than repeat the remarks of KEKEWICH J in Mogridge v Clapp 1892 3 Ch 382 CA. At page 391, the learned judge stated:-

“…,. Now, what does “good faith” mean? What is meant by those two English words which are the exact equivalent in every sense of the expression which is perhaps more commonly used, though not more correctly or properly, bona fides? I think that the best way of defining the expression, so far as it is necessary or safe to define it, is by saying that it is the absence of bad faith – of mala fides…,.”

In short, good faith is the subjective state of mind that a certain set of facts genuinely exists on the basis of which it becomes necessary to act in a manner most right-thinking people would consider appropriate given those facts. A disproportionate reaction, given a particular set of facts, may well justify an inference that such reaction was not actuated by good faith.

On the other hand, the words “for the purposes of or in connection with the suppression of the unlawful hunting of wildlife” must be given a wide interpretation and would include anything linked to, related to, or connected with, attempts to suppress the unlawful hunting of wildlife.

The words “for the purpose of” have been interpreted to refer to the main or dominant purpose – Stobart v Codd, N.O. 1965 (2) S.A. 253, 258 A.

The words “in connection with” are wider. As stated by WILLIAMSON J in S v Mpetha and Others (1) 1982 (2) S.A. 253, the words are not of precise connotation. At page 257 C-D, he remarked:

“They indicate a relationship between two things, but the degree of relationship or connection is undefined and indefinite. These words can quite properly cover the whole spectrum of relationships from a close and direct relationship, at the one end of the scale, to a remote and indirect relationship, at the other end. The term is an elastic one and the context and purpose of the statutory provision must be considered in order to assess the degree of elasticity appropriate to the case.”

In suggesting a wide interpretation, the learned judge further remarked at page 257 H:-

“It is surely not to be presumed that, when the Legislature was trying to be fair to an accused, as in my opinion it manifestly was in the case of this section, it intended a narrow construction to be put upon these words which could, and probably would, result in unfairness to an accused.”

In the present matter, the killing of the deceased, though unfortunate, was the result of a bona fide attempt to apprehend persons who were believed to be armed and involved in poaching activities. In my view, the court a quo should have found that such indemnity attached to the appellant and consequently a verdict of not guilty entered.

In view of the conclusion I have reached above, it becomes unnecessary to consider whether the appellant successfully demonstrated that he was also acting in self defence….,.

In the circumstances, the appeal is allowed and the conviction and sentence are set aside.

HMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

His conduct on the night in question borders on recklessness.

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

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

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

In our endeavour to pass sentence, we are alive to the principle that the court has to strike a balance between the offence, offender, and societal interests while at the same time tempering justice with mercy; see S v Rubie 1975 (4) SA…,.

The courts should not make the community lose confidence in the justice delivery system by letting those who caused loss of precious human life go unpunished. The right signal has to be sent to those in authority and power that they should refrain from exerting force and unnecessarily shoot to kill under the realm of protecting property.

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

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

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

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

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

The accused is sentenced as follows:

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

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

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

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

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

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

Both accused persons pleaded not guilty to the murder charge.

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

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

The Issues

The following are the issues that fall for determination:

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

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

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

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

The Evidence

The State led evidence from six (6) witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The deceased admitted the charge and was taken to court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He said no identification parade was conducted.

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

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

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

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

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

Under cross-examination, he said;

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

Further, in answer to a question, he said;

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

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

The second accused also gave evidence in her defence.

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

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

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

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

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

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

“I witnessed the recording of the statements.”

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

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

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

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

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

Analysis

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

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

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

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

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

This evidence was not challenged by the accused persons.

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

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

(i) Intracranial haemorrhagic.

(ii) Head injury.

(iii) Assault.

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

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

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

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

(d) The deceased was assaulted indiscriminately.

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

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

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

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

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

The question is; who is telling the truth here?

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

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

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

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

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

Also, in evidence in chief, he said;

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

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

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

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

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

Asked how exactly she assisted Accused 1, she said;

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

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

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

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

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

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

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

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

As regards Accused 2, identification is clearly an issue.

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

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

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

The list is not exhaustive.

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

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

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

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

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

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

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

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

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

A.. I did not know their names.

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

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

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

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

“Q. How many assaulted you?

A. Moyo and Mutema.

Q. How did you get to know them?

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

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

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

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

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

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

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

For these reasons, we make the following findings:

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.Persistence in such conduct, despite such foresight.

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

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

5.The absence of actual intent to kill.”

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

“Means the taking of a conscious risk. The accused foresees the consequence in question as a real possibility and yet persists in his conduct irrespective of whether it does result or not…,. It seems in every situation where the accused does not foresee the consequence as at least a real possibility and nevertheless persists in his conduct irrespective of whether it 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 G. FELTOE in A Guide to the Criminal Law, 3rd edition…,.

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

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

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

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

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

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

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

SC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

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

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

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

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

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

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

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

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

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

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

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

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

After a short while he was seen to have died.

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

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

The grounds of appeal are the following:

AD CONVICTION

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

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

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

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

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

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

We were not persuaded by this submission.

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

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

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

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

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

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

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

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

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

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

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

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

The post-mortem report produced by Dr Kasongo was admitted into evidence by consent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Intending to kill the other person; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The complainants to the assault charges all gave evidence.

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

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

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

The cause of death was obvious.

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

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

I find no misdirection.

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

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

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

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

All the evidence pointed at the appellant as the assailant.

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

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

All he says is that they were never assaulted.

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

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

Back Main menu

Law Portal
Zimbabwe

Murder re: Indemnified Persons, Death in Custody of Security Personnel and the Shoot To Kill Policy

HH66-10 : THE STATE vs BENJAMIN NEVER
Ruled By: KUDYA J and ASSESSORS: TUTANI and MUTAMBIRA

SC47-14 : MAXWELL BOWA vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

SC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

Categories

Law Portal Zimbabwe

Murder re: Indemnified Persons, Death in Custody of Security Personnel and the Shoot To Kill Policy

HH66-10 : THE STATE vs BENJAMIN NEVER Ruled By: KUDYA J and ASSESSORS: TUTANI and MUTAMBIRA

SC47-14 : MAXWELL BOWA vs THE STATE Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA Ruled By: TAKUVA J

SC43-17 : JOSEPH CHANI vs THE STATE Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

Categories

Your Donation.

Law Portal
Zimbabwe

HH66-10 : THE STATE vs BENJAMIN NEVER
Ruled By: KUDYA J and ASSESSORS: TUTANI and MUTAMBIRA

SC47-14 : MAXWELL BOWA vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HMT19-18 : THE STATE vs EDSON PHILLIMON MLAMBO
Ruled By: MWAYERA J and ASSESSORS: SANA and CHAGONDA

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

SC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA