Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements

HMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA
Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

In this case, precious human life was lost in circumstances where religious extremism was at play.

Under the umbrella of exorcising demons, a nine year old was strangled to death.

It is alleged, by the State, that on 14 June 2013, and at Tongogara Refugee Camp, Chipinge, Judith Mupelefuraha Mulumba unlawfully caused the death of Kubota Mupelefuraha Mulumba, or, realising that there was a real risk or possibility that the conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Kubota Mupelefuraha Mulumba died.

The accused pleaded not guilty to the charge.

From the summary of the State case and Statement of Agreed Facts, tendered as exhibit 1 by consent, it is common cause the deceased and the accused were related as they were sisters. It is also common cause that on the fateful day the accused, who was at a church gathering with the deceased, after the church service, started to “pray” for the deceased. The accused, in a horrendous manner, mounted on the deceased and inserted her fingers into the deceased's mouth. She choked the deceased while, at the same time, shaking the deceased's head vigorously. The accused believed she was praying to exorcise demons.

The witnesses in attendance also tried to stop the accused but failed. The deceased was choked to death and the remains were taken for postmortem.

The post-mortem report, compiled by Dr Mutetwa, was produced as exhibit 3 by consent and cause of death was established as cervical neck dislocation and asphyxiation.

The unprovoked horrendous assault of the deceased is spine-chilling. We were not surprised when the State and defence counsels came up with a Statement of Agreed Facts and sought the court to proceed with the accused in terms of section 29 of the Mental Health Act [Chapter 15:12].

The respective counsel presented the Affidavit of Evidence of Dr Walter Mangezi, a duly registered medical practitioner, specialist psychiatrist. The doctor formulated an opinion that the accused was mentally disordered at the time of commission of the crime in 2013. At the time of commission of the offence the accused was a mental patient whose mental disorder manifested by being talkative, excessively reading the Bible in a manner out of character, and also being physically aggressive.

This culminated in the gruesome assault on the deceased under excessive stance to exorcise demons from a 9 year old. This behaviour, which is out of the ordinary and normal occurred when the deceased was mentally disordered.

The offence of murder requires establishment of both the actus reas and mens rea.

In this case, given the obvious mental disorder confirmed by Dr Mangezi the accused person cannot be said to have had the requisite intention to carry out the offence of murder. The psychiatrist, Dr Walter Mangezi, outlined that the accused responded well to the medicine for mental disorder administered on her since 2013.

The accused was subsequently released on bail in March 2014 and was viewed as being fit and of sound mind to stand trial.

The accused, when she appeared in court before us impressed the court as an individual appreciating the proceedings.

She tendered a plea of not guilty to the charge, and given the history of mental instability, we acceded to the request by the respective State and defence counsels to retain a special verdict of not guilty because of insanity.

We were further addressed on the post-special verdict fate of the accused. It was clear, as reflected in the Statement of Agreed Facts, that the accused was released on bail in 2014. She has been religiously taking the medication and has started her own family. She has a husband and two children. Further, she stays in a refugee camp, Tongogara, where the authorities there are aware of the condition and medicines are readily available.

This background information clearly portrays that the accused is no longer a danger to herself and to the members of the community. She does not, in our considered view, require further institutionalisation as a protective measure for herself and the society at large. See S v Pretty Matangi HH23-13 and also S v Sinaiso Donald Khumalo HB61-06.

In the premises, we accordingly order that:

1. A special verdict of not guilty because of insanity be and is hereby retained.

2. The accused is released to go and stay with her family at her official residence at Tongogara Refugee Camp.

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.

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

The matter started off as a murder trial. At the close of the State case, the parties conferred and agreed that the accused persons' plea to culpable homicide be accepted.A Statement of Agreed Facts outlining common cause aspects was compiled and presented before the court. Having established the genuiness of ...

HB126-17 : THE STATE vs LANDELANI TSHUMA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused is facing a charge of murder; it being alleged that on the 1st of April 2011, and at Village Simboti, Chief Nemangwe, Gokwe, the accused wrongfully and unlawfully caused the death of Gaboyi Gabi, a male adult aged 71 years, by striking him with a log and axe on the head, leg, and right arm several times.

The accused pleads not guilty to the charge of murder but tenders a plea of guilty with respect to the lesser charge of culpable homicide. The State accepts the limited plea.

The brief facts of this matter, as contained in the Statement of Agreed Facts (exhibit 1), are that on the 1st of April 2011, and at about 1500 hours, the accused's pig strayed into the deceased's homestead. At that stage, the pig grunted and the accused heard it resulting in him approaching the deceased's home. A misunderstanding arose leading to the deceased and the accused trading harsh words. The deceased picked up an axe (exhibit 5) and struck the accused. The blows landed on the accused's chin, chest and forearm.

The accused retaliated by arming himself with a log (exhibit 4) which he used to strike the deceased on the head once. The deceased fell to the ground as a result of the blow. The accused then took the deceased's axe and struck him on the leg and arm.

One Simboti Chiyamuri arrived at the scene and restrained the accused from further assaulting the deceased.

The deceased was attended at Gokwe District Hospital and died that same day as a result of injuries inflicted by the accused.

The State tendered a post mortem report compiled by Dr Mapanga following an examination of the remains of the deceased. The post-mortem report was marked as exhibit 2 and lists the cause of death as;

(a) Fractured skull;

(b) Two deep lacerations on the parietal bone (right side);

(c) Laceration on the right arm;

(d) Fractured femur/deep cut above knee.

The proximate cause of death is head injury.

On the basis of the evidence presented before this court we are satisfied that the accused did not intend to bring about the death of the deceased. The accused, however, acted negligently in causing the death of the deceased. It is clear that the limited plea was properly conceded.

The accused is found not guilty and acquitted on the charge of murder. Accused is found guilty of culpable homicide.

SC67-20 : PROSECUTOR GENERAL OF ZIMBABWE vs INTRATEK ZIMBABWE PL and WICKNELL CHIVAYO and L NCUBE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the whole judgment of the High Court handed down on 20 March 2019, quashing the charges that the first and second respondents were facing in an ongoing criminal trial before the third respondent and acquitting them on all the charges.Background FactsThe facts giving rise to ...

Background Facts

The facts giving rise to this appeal are common cause. The first and second respondents appeared before the third respondent, a Regional Magistrate, facing four counts as follows:

1. Two counts of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], fraud;

2. One count of contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22.05]; and

3. One count of contravening section 5(1)(a)(i) of the Exchange Control Act [Chapter 22.05].

They pleaded not guilty, and, at the same time, excepted to the charges as not disclosing the alleged offences or any other offence.

Relying on the provisions of section 146 of the Criminal Procedure and Evidence Act [Chapter 9.07], the third respondent found that the charges captured the essential averments and allegations required by law. Accordingly, he ruled against the exception which he dismissed.

Unhappy with the ruling, the first and second respondents approached the court a quo, on review, seeking an order setting aside the decision of the third respondent and substituting it with one upholding the exception, quashing the charges, and acquitting them on all the charges. They raised one ground of review.

They alleged that the third respondent's decision to dismiss the exception was grossly unreasonable and patently contrary to law such that no reasonable judicial officer who had applied his mind to the facts of the matter would have reached the same decision.

The application for review was opposed.

In opposing the application, the appellant argued, in the main, that this was not a proper case for the court a quo to exercise its discretion to review un-terminated proceedings in a lower court.

Pending determination of the review, the first and second respondents applied to the court a quo for an order staying the proceedings before the third respondent.

By an order issued on 31 December 2018, the application was granted in respect of the fourth count only with trial in respect of the remaining three counts ordered to continue. It was the opinion of the court granting the interdict that the first and second respondents had no prospects of success, on review, in respect of the remaining counts.

Dismissing the opinion of the court granting the interdict as not binding on it, the court a quo granted the application as indicated above. The decision a quo, as a basis for granting the application in the manner that it did, the court a quo found as follows:

“It is therefore clear that the second respondent misdirected himself when he dismissed the exception because he dealt with an issue that was not before him. He decided whether the charges disclosed an offence or not yet what he had been asked to adjudicate upon was whether the facts, as stated in the Outline of the State Case, disclosed any offence or not. This misdirection, in my view, goes to the root of the matter.

Having found that there was a misdirection what is left for the court to decide is whether if the court had decided the correct issue the court would have arrived at the same findings…,.”

Thus, the ratio of the decision a quo was the finding that the third respondent misdirected himself when he dismissed the exception because he dealt with an issue that was not before him. As a result of this alleged misdirection, the court a quo felt at large to substitute its own discretion for that of the third respondent - which it proceeded to do.

Dissatisfied with the acquittal of the first and second respondents, the appellant noted this appeal, having obtained leave in terms of section 44(6) of the High Court Act....,.

I now turn to the merits of the appeal.

The Appeal

In the main, the appellant argued that the court a quo erred in interfering with unterminated criminal proceedings in a case where there were no exceptional circumstances warranting such interference and particularly where the trial had commenced and evidence was being led before the subordinate court.

In addition, the appellant raised three other grounds attacking the court a quo's finding to the effect;

(i) That the facts alleged in the outline of the State case did not disclose an offence;

(ii) That the facts of the matter gave rise to a civil matter only to the exclusion of criminal proceedings; and

(iii) That the second respondent ought not to have been charged in his personal capacity.

The Issue

The sole issue that arises in this appeal is whether the court a quo erred by interfering with the un-terminated proceedings before the third respondent.

The Law

The general rule on when a superior court may interfere with the unterminated proceedings of a lower court was settled in Attorney-General v Makamba 2005 (2) ZLR 54 (S) where MALABA JA…, had this to say…,:

“The general rule is that a superior court should interfere in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In settling the rule thus, the court referred to the South African case of Ishmael & Ors v Additional Magistrate Wynberg & Anor 1963 (1) SA 1 (A) where it was similarly observed that a superior court should be slow to intervene in un-terminated proceedings in a court below and should confine the exercise of its power to those cases where grave injustice might otherwise result or where justice by other means may not be obtained.

Thus, put conversely, the general rule is that superior courts must wait for the completion of the proceedings in the lower court before interfering with any interlocutory decision made during the proceedings.

The exception to the rule is that only in rare or exceptional circumstances, where the gross irregularity complained of goes to the root of the proceedings, vitiating the proceedings irreparably, may superior courts interfere with on-going proceedings.

The rationale for the general rule may not be hard to find.

If superior courts were to review and interfere with each and every interlocutory ruling made during proceedings in lower courts, finality in litigation will be severely jeopardised and the efficacy of the entire court system seriously compromised. Further, it is not every irregular and adverse interlocutory ruling or decision that amounts to an irreparable miscarriage of justice. Some such lapses get corrected or lose import during the course of the proceedings; and, in any event, as observed by STEYN CJ in Ishmael & Ors v Additional Magistrate Wynberg & Anor 1963 (1) SA 1 (A), it is not every failure of justice which amounts to a gross irregularity justifying intervention before completion of trial. Most can wait to be addressed on appeal or review after final judgment.

Analysis

Whilst the general rule on when a superior court may interfere in ongoing proceedings in a lower court was common cause to the parties, the court a quo appeared to have been oblivious of the correct approach to adopt in the matter.

Instead of finding a reason for departing from the general rule, as settled in the authorities and legal texts, the court a quo was content to find that the third respondent had misdirected himself by dealing with an issue that was not before him as a basis for interfering with the on-going trial of the first and second respondents.

The decision of the court a quo cannot be saved.

The court a quo fell into grave error in one or two respects;

(i) Firstly, the court a quo did not adopt the correct approach of when to exercise its review powers in ongoing proceedings, which approach has been discussed above. It did not establish those rare or exceptional circumstances in the matter that called for its intervention and which circumstances could not wait until the trial was completed.

The first and second respondents had in fact indicated, in their founding affidavit, that such circumstances would be advanced at the hearing of the matter. If these circumstances were indeed revealed to the court a quo, they did not form part of its reasoning, and, more importantly, the basis of its decision to grant the application. The net result was that the court a quo did not find, as it ought to have, that this was a rare case in which the irregularity complained of was not only gross but vitiated the proceedings irreparably before it interfered with the ongoing trial. Instead, the court a quo proceeded on the wrong footing. It found a misdirection on the part of the third respondent, a finding that was neither material nor adequate to justify its interference. This is so even if the alleged misdirection was conceded to by the appellant.

The power of the court a quo to interfere with on-going proceedings is not conferred upon the court by the consent of the parties. Even where the parties agree, as in casu, that there had been a misdirection by the lower court, this did not absolve the court a quo from judiciously assessing whether this was a proper case for it to interfere and not to allow the proceedings in the lower court to run their full course. Had the court a quo done this it would have found that this was clearly not a proper case for interfering with the unterminated proceedings before the third respondent.

(ii) Secondly, and in any event, the first and second respondents having raised a specific ground of review, the court a quo was duty bound to make a finding on the alleged gross irregularity.

There was thus a wide and patent disconnect between the ground alleged in the application for review and the ratio of the decision a quo. The first and second respondents had alleged irrationality in the interlocutory decision, which allegation the court a quo did not determine, let alone advert to in its judgment.

It is therefore my finding that the court a quo erred in interfering with the unterminated criminal proceedings before the third respondent. It erred by failing to make a finding that the ground of review raised by the first and second respondents had been proved and that having been so proved, it brought out a miscarriage of justice that not only went to the root of the matter and vitiated the entire proceedings but could not wait to be redressed after the completion of the trial. More particularly, the court a quo erred in taking the wrong approach in the matter.

Disposition

The appeal must be allowed and the judgment of the court a quo set aside. The trial of the first and second respondents, before the third respondent, must proceed.

This being an appeal by the Prosecutor-General in terms of section 46 of the High Court Act, it is just and equitable that each party be made to bear its own costs of this appeal.

In the result, I make the following order:

1. The appeal is allowed with each party bearing its own costs.

2. The judgment of the court a quo is set aside and is substituted with the following:

“1. The application for review is dismissed with each party bearing its own costs.

2. The trial of the second and third respondents, under case number CRB114-5/18, before the third respondent, is ordered to proceed.”

SC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd (Intratrek), the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu.

He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.

Grounds of Appeal

The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:

1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.

2. In failing to consider the provisions of section 278(3) of the Criminal Law Code which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.

3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd (ZPC) to its prejudice and that the funds were used by both respondents for their own benefit.

4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.

5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.

The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18....,.

Interference with Unterminated Proceedings

The nub of the fourth ground of appeal is that the court a quo erred in interfering with un-terminated proceedings in the Magistrates Court where there were no exceptional circumstances to warrant such interference.

It is common cause that proceedings in the Magistrates Court had already commenced in respect of three of the four counts preferred against the respondents. One witness had already testified on behalf of the State, and, on the following date of hearing, the public prosecutor was to proceed to lead evidence from the next witness.

Counsel for the respondents object that this ground of appeal was not raised in the court a quo.

Furthermore, they contend that the State had conceded that the court was entitled to interfere if it were to be found, as it was, that the learned magistrate had erred and misdirected himself in dealing with the respondents' exception to the charges. Consequently, so it is argued, the applicant cannot ground an appeal on a point that was conceded.

Counsel for the applicant accepts that the court a quo had to deal specifically with the exception raised and dismissed in the Magistrates Court. However, the applicant did not concede that this went to the root of the matter. What the applicant did was to accept, simply, that the court a quo could set aside the learned magistrate's decision on the exception, as having been erroneously arrived at on the wrong basis. But, the State specifically did not concede that the court a quo was then at large to acquit the respondents on all the charges against them.

I am unable to discern anything in the judgment a quo to controvert the applicant's position as presented by counsel for the applicant. I accordingly propose to deal with the fourth ground of appeal on the basis that it is properly before me.

HH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

In terms of subsection 5 of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07], the judge who hears an appeal against a bail ruling may make such order relating to bail and any conditions in connection therewith as he considers should have been made by the…, magistrate ...

HH74-18 : THE PROSECUTOR GENERAL OF ZIMBABWE vs SHMUEL KLEIN
Ruled By: CHITAPI J and MUSHORE J

In this appeal, the Prosecutor General, pursuant to an order for leave to appeal having been granted by a judge of this court on 19 August 2014, noted an appeal against the acquittal of the respondent by the Regional Magistrate Eastern Division on 26 April, 2012.

The respondent, then a 58 year old Israel national, was charged on two counts of statutory contraventions.

In the first count, the respondent was charged with a contravention of section 3 of the of the Precious Stones Trade Act [Chapter 21:06]. It was alleged against him that, on 17 March 2012, and at Harare International Airport, he unlawfully had in his possession 8,486.66 carats of rough diamonds whose estimated valued was $2,437,708=22.

In the second count, the respondent was charged with a contravention of section 12(1) of the Immigration Act [Chapter 4:02] which creates an offence called “entry by evasion”. It was alleged against him that at the same place and on the same date as in the first count, the respondent, being the holder of a foreign passport, unlawfully failed to present himself to an immigration officer and entered Zimbabwe without authority contrary to the law.

The respondent pleaded not guilty to both counts.

In brief outline, the facts of the matter were that the respondent was a pilot instructor employed by an airline domiciled and operating from Israel. He was booked to fly on a South Africa Airlines scheduled flight out of Zimbabwe. He had flown into Zimbabwe the same date, that is, 17 March 2012. His boarding pass for exiting had been issued in South Africa at the time that he checked in to fly into Zimbabwe. The respondent was dressed in his pilot uniform. As part of the departure formalities for the return journey, the respondent presented himself to an aviation security screening point where his hand luggage was screened. Suspected precious stones were discovered and recovered in his luggage. These are the rough diamonds which grounded the charge in the first count.

On the second count, it was alleged against the respondent that, on arrival at Harare International Airport, on 17 March 2012, he did not present himself to an immigration officer but entered the country as a crew member yet he had travelled as a passenger.

The respondent denied both charges, and, with respect to the second count, he alleged that he was in fact on duty and wore his uniform. He had a valid boarding pass for Harare as with the rest of the passengers and the crew since boarding passes are issued to everyone on board an aircraft for accounting purposes should the plane be involved in a mishap or accident.

With respect to the first account, the respondent averred that he was an agent for a licensed diamond company whose licence he produced as well as an affidavit authenticating the agency relationship. The respondent averred, further, that he was a transit passenger en route to Israel and that the diamonds for which he produced documents of origin did not originate from Zimbabwe but from South Africa.

The Regional Magistrate, after a full trial, acquitted the respondent on both counts.

In response to the grounds of appeal filed by the appellant, the magistrate supported his decision to acquit the accused on the basis that the State had consented to the production of the permit or licence to possess diamonds which the respondent produced. The magistrate held that on the evidence adduced by the State, the respondent fell into the group of persons who could lawfully deal in or possess diamonds in terms of the Precious Stones Trade Act and that the respondent was a transit passenger. There was no evidence that the origin of the diamonds was Zimbabwe.

In respect of the second count, the magistrate held that the State did not lead any evidence as to what it alleged the accused had done in relation to the alleged failure to complete immigration formalities. At best, the State had only led evidence of a generalized nature from a witness regarding procedures to be followed by a person who wishes to enter Zimbabwe.

The above extrapolation briefly sets out what the case against the respondent was all about.

At the hearing, on 23 February 2017, the State prosecutor gave notice that he intended to abandon and withdraw the appeal. He requested for the matter to be postponed to 9 March 2017 so that he would prepare and file the necessary papers to give effect to the State's withdrawal.

On 8 March 2017, the State prosecutor filed supplementary heads of argument in support of the State's decision to withdraw its appeal. Both the prosecutor and the respondent's counsel made brief submissions in relation to the withdrawal.

The question which exercised the mind of the court was, whether or not the Prosecutor General, as appellant, could just abandon and withdraw the appeal in circumstances where the court was seized with the appeal. Put differently, the question which arose for consideration was whether or not the court could, if it had reservations with the reasons given for the withdrawal of the appeal, refuse to grant an order of withdrawal and direct that the appeal be argued on the merits.

A consideration of various pieces of legislation will help inform the decision of the court in regard to answering the question arising.

Section 258 of the Constitution, 2013 provides as follows:

“258 Establishment and Functions of National Prosecuting Authority

There is a National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.”

Section 260 of the Constitution provides as follows;

“260 Independence of Prosecutor–General

(1) Subject to this Constitution, the Prosecutor General -

(a) Is independent and is not subject to the direction or control of anyone; and

(b) Must exercise his or her functions impartially without fear, favour, prejudice or bias.”

Section 12 of the National Prosecuting Authority Act [Chapter 7:20] provides as follows:

“12 Power to institute and conduct criminal proceedings

(1) The Prosecutor General –

(a) Shall institute and conduct criminal proceedings on behalf of the State; and

(b) Shall carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and

(c) May discontinue criminal proceedings; and

(d) Shall issue certificates nolle prosequi in accordance with the Criminal Procedure and Evidence Act [Chapter 9:07], to persons intending to institute private prosecutions, where the Prosecutor-General chooses not to prosecutor; and

(1) The Prosecutor-General may assign any duty referred to in subsection (1) to the National Director of Public Prosecutions, subject to the control and directions of the Prosecutor General.

(2) Subject to the Constitution and this Act, a member shall, subject to the control and direction of the Prosecutor-General, exercise the powers referred to in subsection (1), in respect of –

(a) The area of jurisdiction for which he or she has been appointed; and

(b) Any offences which have not been expressly excluded from his or her jurisdiction, either generally or in a specific case, by the Prosecutor-General.

(3) A member shall be competent to exercise any of the powers referred to in subsection (1), to the extent that he or she has been authorised thereto, in writing, by the Prosecutor-General, or by a person designated by the Prosecutor-General.”

The cited constitutional and statutory provisions speak to the powers and authority of the Prosecutor General in relation to conducting prosecutions of criminal cases on behalf of the State. Both on trial of an accused person and on appeal, as in this case, the Prosecutor General exercises the functions of prosecuting on behalf of the State as envisaged in section 258 of the Constitution.

In the absence of legislation to the contrary, the powers of the Prosecutor–General to undertake a prosecution also implies the power to stop a prosecution and a fortiori to withdraw a prosecution brought by the Prosecutor General.

In the matter Highstead Entertainment (Pty) Ltd t/a “The Club” v Minister of Law and Order and Others 1994 (10) SA 387 (C) the court held that the discretion to decide whether to proceed with a prosecution or to withdrew it is one of the fundamental functions in exercising a duty to prosecute.

Section 260 of the Constitution provides for the independence of the office of the Prosecutor General in the discharge of prosecutorial functions.

The Prosecutor-General “is not subject to the direction or control of anyone” in regard to discharging prosecutorial functions.

It follows that a court has no power to order the Prosecutor General to mount a prosecution or how to conduct criminal proceedings, save perhaps to the extent that once the Prosecutor General decides to prosecute, such prosecution should then be conducted in terms of the procedural rules obtaining in the court in which the case is listed for determination.

In R v Comptroller-General of Patents (1899) IQB 909…, in extrapolating on the independence of the Attorney General (equivalent of the Prosecutor General in this jurisdiction); the court held that when the Attorney General, in exercising his functions as an officer of the Crown, such functions were not subject to review by the court of the Queens bench or any other court.

The Zimbabwe Constitution, 2013 whilst entrenching the independence of the Prosecutor General has provided, in section 260(1)(b), safeguards which the Prosecutor General must have regard to when exercising his or her powers in terms of section 258 and 260(1)(a) of the Constitution.

What this entails is that, where an aggrieved person complains of an infraction of his or her fundamental rights and can prove, successfully, that the Prosecutor-General has failed to have regard to the safeguards listed in section 260(1)(b), the court, in the exercise of its wide powers of review, may enquire into such a complaint and grant an appropriate remedy.

The court cannot, however, mero motu review the powers or decisions of the Prosecutor General made in the discharge of his or her prosecutorial functions.

There must be a complaint of an infraction of someone's rights having been violated revised in this appeal. The complaint triggers an enquiry and review of the Prosecutor General's discharge of his functions.

In casu, no such complaint has been raised against the Prosecutor General's actions or decisions.

That being, the decision to withdraw the appeal is a matter peculiarly within the Prosecutor General's discretion and however he or she has arrived at such decision is his or her responsibility.

It is to be noted that the Prosecutor-General, in deciding to prosecutor, stop a prosecution, or withdraw it, does so taking into account the public interest, the interests of justice, and the need to avoid an abuse of the court process.

A lot of factors come into play when the Prosecutor General decides whether or not to prosecute or indeed to withdraw a prosecution. Some of the factors may not be in the public interest to disclose.

In my judgment, the courts, save where there is a complaint by an affected or interested party, must not interfere with the exercise of the prosecutorial functions of the Prosecutor General. The Prosecutor-General should not be subjected to any pressure either by the Executive or by the courts in the proper exercise or discharge of his functions regarding prosecutions.

Indeed, where an affected party petitions the court that the Prosecutor General, in the exercise of his or her functions, has broken the law, the court will issue an appropriate remedy.

An example of such an instance, in this jurisdiction, related to the refusal by the Prosecutor General (then Attorney General) to issue the complainant, whose case he had refused to prosecute, with a certificate “nulle prosequi”. The certificate would have enabled the complainant to conduct a private prosecution against the person whom the complaint alleged to have committed a criminal offence from which the complainant suffered harm; see Prosecutor General v Telecel Zimbabwe (Pvt) Ltd SC01-14; 2015 ZWCC 10; CC10-15.

This was topical case.

A reading of the High Court, Supreme Court and Constitutional Court judgments will show that the courts did not interfere with the Prosecutor General's decision to decline a prosecution. The courts simply ordered him to take the statutory step, as required of him, to issue a certificate nulle prosequi in terms of the Criminal Procedure and Evidence Act [Chapter 9:07] at the instance or request of the complainant.

To conclude this judgment, I must point out that whilst the Prosecutor General's right of appeal to this court, in relation to criminal appeals, derives from sections 61 and 62 of the Magistrates Court Act which suffers the Prosecutor General to first obtain leave of a judge to appeal, there is nothing which stops him from subsequently throwing in the towel and withdrawing the appeal.

The withdrawal of an appeal in respect of a matter brought by that party on appeal is a unilateral act which the court cannot stop nor review. It must follow that once the appellant has withdrawn an appeal the court cannot continue to deal with the matter. The court must endorse the withdrawal.

There was therefore no need in this matter for counsel for the appellant to file arguments or convince the court of the reasons nor their reasonabless for the Prosecutor General's decision to withdraw the appeal. It was the appellant's prerogative to withdraw the appeal.

Consequently, the following order shall issue;

1. That the appeal by the Prosecutor General, in case No. CRB R 263/12, is hereby withdrawn by the Prosecutor General as appellant.

2. The judgment of the Regional Magistrate, dated 25 April 2012, in the aforesaid case, shall remain extant.

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 SENTENCE

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

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

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

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

CCC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than eight (8) years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in section 18(2) of the former Constitution, has been violated.

The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000= that was given to him by the complainant to purchase 30,000 litres of diesel and 8,000 litres of petrol. According to the submissions filed on his behalf before the Magistrates Court, on 27 June 2011, he was detained but later released and then arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest, in May 2011, he was summoned to appear in court on 20 June 2011, when he gave notice of his intention to apply for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution. The matter was then so referred by the Magistrates Court sitting at Harare on 8 July 2011.

It is averred, on behalf of the applicant, that the inordinate delay of six (6) years in bringing the matter to trial was due to the State's lack of preparedness. It is also averred that he has been prejudiced by the passage of time, the inflation of the Zimbabwe dollar, and the subsequent changeover to the United States dollar.

The State opposed the application for referral on the grounds set out in its response filed before the magistrate on 6 July 2011. It further opposed the request for permanent stay of proceedings in its heads of argument before this Court.

In essence, it is averred that the matter is not properly before this Court because it consists only of the submissions filed in the Magistrates Court. There was no affidavit or evidence adduced in that court, nor was any hearing conducted before it, to enable the magistrate to determine whether or not the application was frivolous or vexatious. Additionally, no documentation was attached to the application to support the applicant's averments as to what transpired between 2005 and 2011. Consequently, neither the prosecutor nor the magistrate could test the veracity of the applicant's allegations.

It is further argued, for the respondent, that this Court is handicapped by the lack of evidence in making a full inquiry into and determining whether or not the applicant's right to a fair trial has been violated.

ISSUES FOR DETERMINATION

Having regard to the respondent's position, the preliminary question to be decided is whether or not this matter is properly before this Court in light of the procedure adopted by the applicant's counsel in making the request for referral in the Magistrates Court. Flowing therefrom is the related question as to whether or not, on the basis of the evidence on record, this Court can properly make a determination on the alleged violation of the applicant's right to a fair and speedy trial as guaranteed by section 18(2) of the former Constitution.

Counsel for the applicant accepts that neither party filed affidavits or gave evidence before the Magistrates Court in relation to the factual and legal requirements to justify or negative a permanent stay of prosecution. The magistrate only considered the written submissions filed on behalf of the applicant before referring the matter to the Supreme Court. Nevertheless, counsel for the applicant contends that there are sufficient details in those submissions to enable this Court to assess the relevant facts and decide the constitutional question referred for determination. If this is not possible, the way forward would be to refer the matter back to the Magistrates Court to hear evidence from both parties.

Counsel for the respondent reiterates the position adopted by the State before the Magistrates Court, viz. that this Court, in the absence of the requisite evidence on record, cannot properly make any finding as to the reasons for the delay in commencing trial, whether or not the applicant asserted his rights, and the nature of the prejudice, if any, occasioned by the delay. She submits, however, contrary to the stance taken in the respondent's heads of argument, that the application should not be dismissed. Instead, the matter should be referred to the Magistrates Court for a full inquiry to hear evidence and make proper findings of fact in order to determine whether or not the application for referral is frivolous or vexatious.

PRINCIPLES GOVERNING REFERRAL

Where an accused person alleges any infringement of his or her right to a fair trial within a reasonable time, the factors that are to be ventilated and determined are now well settled. They are:

(i) The length of the delay;

(ii) The reason or explanation and responsibility for the delay;

(iii) The assertion of his or her rights by the accused; and

(iv) Prejudice to the accused arising from the delay.

See In re Mlambo 1991 (2) ZLR 339 (S); S v Nhando & Others 2001 (2) ZLR 84 (S); S v Nkomo SC52-06.

In order to enable a proper evaluation of the above-mentioned factors it is essential that evidence be led, primarily by the accused person, as to what transpired from the date of the charge to the date when referral of the alleged violation of rights is sought. The reasons for this were clearly articulated by GUBBAY CJ in S v Banga 1995 (2) ZLR 297 (S)…, as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement, from the bar, and then to point solely to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time, before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application….,.

Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p9.

I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court.”

This reasoning has been subsequently adopted and applied by the Supreme Court on several occasions; see Sivako v Attorney-General 1999 (2) ZLR 271 (S); S v Njobvu 2007 (1) ZLR 66 (S), and, more recently, by this Court in Sengeredo v The State CC11-14, per CHIDYAUSIKU CJ.

PROPRIETY OF REFERRAL

I advert, firstly, to the notice of application for referral, filed on 27 June 2011, wherein it is stated that “the applicant's affidavit and annexures will be used in support of the application.” It is common cause that no such affidavit was ever filed. All that was attached to the notice were the submissions prepared by his legal practitioners, the request for remand, a bail deposit receipt, the charge sheet, and the complainant's statement.

Following the application cum submissions, the State filed its opposing response, dated 6 July 2011, highlighting the procedural and evidential deficiencies besetting the application.

Despite this, on 8 July 2011, the learned trial magistrate proceeded to issue his ruling (comprising a total of 4 lines) granting the application for referral to the Supreme Court. He did this without hearing argument from the parties or affording them an opportunity to present evidence on the factual circumstances bearing upon the application.

The only “evidence” from the applicant that was before the Magistrates Court consisted of the allegations and assertions contained in the written submissions attached to the application.

According to those submissions, the applicant was first charged in November 2005 and only summoned to court for trial in June 2011.

The obvious implication is that he was available to attend trial throughout that period.

As against this are the averments contained in the complainant's statement, dated 8 May 2011, to the effect that the applicant had run away to South Africa in 2005 and only returned to Zimbabwe in 2011. As pointed out by counsel for the respondent, this appears to tally with the police docket which shows that the applicant could not be located between 2005 and 2011.

There can be no doubt that all of the above assertions and counter-assertions should have been ventilated through viva voce evidence in order to determine the reasons and responsibility for the delay in bringing the applicant to trial. Equally necessary was the evidence necessary to demonstrate that the applicant did in fact assert his right to a speedy trial, that he has been prejudiced by the delay, and the specific manner in which he has been prejudiced. Moreover, in respect of all of these factors, the State should have been given the opportunity to test the veracity of the applicant's position through cross-examination, in addition to being given the opportunity to adduce its own evidence to rebut that position.

DISPOSITION

It is abundantly clear from the foregoing that this Court would be severely handicapped, on the basis of the evidence on record, in attempting to make any meaningful finding on the relevant issues so as to determine the alleged violation of the applicant's right to a fair and expeditious trial. The evidentiary deficiencies in casu are fatal to the propriety of the proceedings before the Magistrates Court and its ruling referring the matter for determination by this Court.

In short, the application is fundamentally and fatally defective.

Moreover, because it was defective as from its inception, I take the view that it is incurably defective and cannot be regularised. That being so, I do not think it appropriate, as proposed by both counsel, to remit the matter to the trial court for it to conduct the necessary inquiry into the relevant facts. It is, of course, open to the applicant, should he so deem fit, upon proper advice, to institute a fresh application before that court in compliance with the established procedural requirements.

In the result, the application is dismissed. There shall be no order as to costs, none having been sought by the respondent.

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

A superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where a grave injustice would occur if the superior court does not intervene.

Although this court's review power may be exercised to grant a mandamus even before the termination of a case if there were gross irregularities in the proceedings or it is apparent that justice might not be attained, the general rule is that this court's power of review is exercised only after termination of a criminal case.

The applicant was arraigned before a Provincial Magistrate in Gwanda charged with theft in contravention of section 113(2)(c) of the Criminal Law Code [Chapter 9:23] the allegations being that he stole a sum of $70,533=34 belonging to the partnership of Enfund and N & S Partnership; proceeds from the sale of 43 Stands belonging to the partnership which were sold on behalf of the partnership by Umzingwane Rural District Council and the money given to the applicant.

It is alleged, that, instead of using the money to purchase reticulation pipes and pay plumbers laying the pipes on behalf of the partnership the applicant used the money for other purposes.

The applicant pleaded not guilty to the charge, and, in his Defence Outline, he stated that he received the proceeds of the sale of the Stands in his capacity as the Finance Director of the Partnership; he having been one of the two partners, the other being Nicholas Masuku who is the complainant in the matter. The latter was the Operations Director.

The money was to be used for, among other things, fuel and oils, pipes for servicing, casual wages, repairs and maintenance of equipment as well as office expenses.

When he received the money he used it for that purpose.

He therefore disputed stealing the money and maintained that some of the money was actually collected and used by the complainant.

Indeed, evidence led on behalf of the State showed that the complainant is the one who received the sum of $2,400 in Count 3 which he says he used to pay wages.

The complainant's gripe was that the applicant had not properly accounted for the rest of the money.

At the close of the case of the prosecution, the applicant made an application for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which enjoins the trial court to discharge an accused person at that stage where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict or the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it: see S v Kachipare 1998 (2) ZLR 271 (S)…,.; Attorney General v Bvuma and Another 1987 (2) ZLR 96 (S)…,.; Attorney General v Mzizi 1991 (2) ZLR 321 (S)…,.; Attorney General v Tarwirei 1997 (1) ZLR 575 (S)…,.; S v Tsvangirai and Others 2003 (2) ZLR 88 (H).

The applicant's counsel submitted, that, there was “no iota of evidence” linking him to the commission of the offence and that putting him to his defence would amount to bolstering the State case unable to stand on its own. The evidence of the State was manifestly unreliable that no reasonable court acting reasonably could safely rely on it. The requirements of theft had not been satisfied. As the State had failed to establish a prima facie case, the trial court was required to acquit by virtue of the peremptory provisions of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In response, counsel for the State conceded that the money forming the subject of the charge belonged to the partnership of both the applicant and the complainant. He also conceded that he was entitled to a discharge in respect of Count 3 relating to the money which the complainant admitted having collected and used.

The learned Provincial Magistrate would have none of it.

In his determination of the application for a discharge at the close of the State case he surprisingly did not address the usual question of whether the evidence adduced for the State had established a prima facie case for which the accused person could be called upon to answer. Instead, he reasoned thus:

“In a partnership, like the one entered into by accused and the complainant, the property they acquire through such partnership belongs to both of them jointly, and not individually, unless duly apportioned. If one of the partners uses the property for whatever purpose, the other partner should be appraised fully and timeously. If the property or money is used for the benefit of the project, both parties need to know and agree.

In this case, complainant is entitled to know how the proceeds of the sale of the 43 Stands was spent. Accused has a duty to explain, satisfactorily, to his partner. For accused to give a verbal explanation how the money was used is not enough. Accountability and transparency on the use of such money is required.

Complainant has the right to know.

Also, the argument that accused was the owner of the proceeds of the sale of the 43 Stands and therefore could not steal such is, to use the word used by the defence, nonsensical. The proceeds belonged to the partnership and not an individual. Accused could therefore steal this money though he was a [partner] if the other partner did not approve of his taking.

To discharge accused without having fully explained to the complainant how the proceeds of the sale of the 43 Stands, at this stage, would amount to a gross miscarriage of justice.

As I said earlier on, for accused to say I paid wages with this money, I bought fuel and oils or other equipment, without documentary evidence to prove accountability, is clearly not adequate and does not suffice. Accountability on the use of these funds was required.

Complainant is entitled to know.

There is nothing civil about this case at this stage.”

So, the applicant was put to his defence, not because the State had proved the essential elements of the theft as provided for in the law, or, put it another way, not because the State had established a prima facie case, but merely because, as a partner in a partnership of himself and the complainant, he was required to account to his partner how the money he received was applied.

The applicant has now taken that decision on review in HC1699/16, and, as the respondents are agitating to proceed with the trial on 23 August 2016, he has filed this urgent application for stay of the criminal proceedings pending the review.

Counsel for the applicant pointed to a number of misdirections in the decision but highlighted the failure by the magistrate to acquit the applicant even in Count 3 where the State conceded that the money in that Count was received by the complainant and applied for other purposes.

If the complainant did not commit an offence so did the applicant.

Above all, this points to the fact that the court did not deal with the application at all but merely dismissed it for no reason.

I have said that this court will not interfere in unterminated proceedings except where there is gross irregularity resulting in a miscarriage of justice. That is the point made by MALABA JA…, in Attorney General v Makamba 2005 (2) ZLR 54 (S)…, where the learned appeal judge said:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.

In Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) STEYN CT at page 4 said:

'It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in un-terminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'

See also Ndlovu v Regional Magistrate, Eastern Division and Another 1989 (1) ZLR 264 (H) at 269C, 270G; Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) at 41C.”

In that case, the Supreme Court went on to quash the decision of the High Court, on review, substituting an acquittal where the Regional Magistrate had refused an application for discharge at the close of the State case. It remitted the matter for continuation of trial.

In Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) DEVITTIE J was confronted with a similar situation as obtaining in the present case as the applicants had sought a stay of criminal proceedings which were not complete to enable them to pursue a review application against the decision of the trial magistrate refusing an application for recusal. The following appear at 37F-G of that judgment:

“In determining the power of a superior court to intervene in unterminated criminal proceedings, a distinction must be drawn between an appeal and a review.

HERBSTEIN & Van WINSEN, Civil Practice of the Supreme Court of South Africa 4ed p932 explain the distinction:

'The reason for bringing proceedings under review or appeal is usually the same - to have the judgment set aside.

Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.

The first distinction depends, therefore, on whether it is the result only or rather the method of the trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.

The giving of a judgment not justified by the evidence would be a matter of appeal and not a review, upon this test.

The essential question in review proceedings is not the correctness of the decision under review but its validity.'

Where, in unterminated proceedings, an interlocutory decision is sought to be set aside on grounds that the court has made a wrong decision in the proper discharge of its functions the appropriate procedure is by way of appeal. The general principle is that an appeal will be entertained only after conviction.”…,.

The court dismissed the urgent application for stay of criminal proceedings because the recusal application had no merit.

See also Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; S v John 2013 (2) ZLR 154 (H).

What is clear, therefore, is that this court will only exercise its review jurisdiction to intervene in unterminated criminal proceedings where the irregularity is gross or where it is such that an injustice might not be attained by other means.

In the present case, the Provincial Magistrate was asked to determine an application for a discharge of the applicant at the close of the State case.

Considerations in such an application centre around the existence of a prima facie case for which the accused person is called upon to answer. Where no such case exists, the accused person is entitled to an acquittal.

I must however pause there a while and mention that, at the moment, I am not sitting in judgment over the review application. The present assignment, however, requires me to take a peep into that application to see whether it is worth staying proceedings for - a process which involves the exercise of a discretion.

It would be an injudicious exercise of a discretion were I to stay unterminated criminal proceedings where the court is unlikely to exercise its review powers in favour of the applicant.

I have quoted the judgment of the Provincial Magistrate above to demonstrate that he appears to have allowed his mind to wander off the field of discourse. In the end, he did not address the application before him at all.

In criminal proceedings, it is a salutary principle of our law that the accused person bears no onus to prove anything.

The trial court appears to want him to come to court and account to the complainant how he used the money that he received. Yet, it is common cause that he was entitled to receive the money and was also entitled to use it.

This lends weight to the argument that this may well be a civil dispute where no criminal case may have been established.

It is also common cause that the dispute between the parties was also pending in this court as a civil matter, in HC1722/12, and that the parties signed an agreement resolving the same dispute.

In my view, the reasoning of the magistrate, in response to the application for discharge, goes beyond mere faultiness or otherwise of the decision. It also relates to the method of the trial, where an accused person is put to his defence not because a prima facie case has been established but merely to account to his partner.

It is prejudicial to an accused person to perpetuate a trial for that reason.

In light of that, I am prepared to exercise my power to interfere with the criminal proceedings, even though un-terminated, in order to afford the applicant the opportunity to explore a review of the validity of that decision.

As stated in Mukwemu v Magistrate Sanyatwe N.O. and Another HH765-15…, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors.

What the trial court did in this matter, in requiring the applicant to render an account, equates to what confronted MAFUSIRE J in S v John 2013 (2) ZLR 154 (H) where the accused person was put to his defence in order to “clear” his name.

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

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY
Ruled By: MATHONSI J

It is becoming fashionable for accused persons appearing before a magistrate who have their applications made in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] for a discharge at the close of the State case to approach this court on an urgent basis seeking an order interdicting the continuation of the trial while they pursue a review of the decision dismissing the application for a discharge at that stage.

The net effect of such an approach is really to render ineffectual the jurisdiction of the Magistrates Court to try offenders and to sit in judgment over such matters.

There can be no doubt that while it is a necessary feature of every adversarial system of justice that there should be a higher court in the hierarchy of the courts to correct judicial errors - that procedure should not be abused: see Mukwemu v Magistrate Sanyatwe N.O. and Another 2015 (2) ZLR 417 (H)…,.

It does not detract from the time honoured principle of our law that this court will only exercise its discretion to interfere with unterminated criminal proceedings where there were gross irregularities in the proceedings or where it is apparent that an injustice may occur if this court does not intervene. Otherwise, this court is generally loathe of exercising its powers of review before the termination of a criminal case.

The applicant was arraigned before a magistrate in Gweru on an assault charge in contravention of section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged, that, on 13 February 2017, she had assaulted her 70 year old neighbour, Emely Moyo, at the gate of her plot, being Plot 10 Treetops, Gweru over a boundary dispute. She pleaded not guilty to the charge and stated, in her Defence Outline, that she had not assaulted the complainant as alleged. Instead, it was the complainant, a woman 22 years her senior, who had assaulted her. She is only 48 years old.

The State led evidence from six witnesses, including three eye witnesses and the complainant, who testified as to how the applicant had caused the complainant to be summoned to the gate before dragging her out causing her to fall. While on the ground, she allegedly punched the complainant in the face twice before onlookers came to her rescue. The medical doctor who attended to the complainant later that day, but compiled a report two days later, also testified. So did the attending police detail who received a report of assault and arrested the applicant.

At the close of the State case, the applicant made an application for discharge on the basis that the State had failed to establish a prima facie case for her to answer. This was because the State witnesses had given “different versions on factual narrations”. Simply put, the basis of the application was that the witnesses were unreliable and had been discredited during cross examination to an extent that no reasonable court could act upon their evidence.

The trial court was un-impressed.

In dismissing the application, the trial magistrate kept her eyes on the ball. She stated:

“It is common cause that there are discrepancies in the testimonies of the State witnesses. The question, however, is whether or not those discrepancies are material or fatal such that one can safely say the State did not manage to prove a prima facie case against the accused. The complainant stated that the accused spat saliva on her face, grabbed her by the collar, pushed her, and she fell down. She also stated that the accused then assaulted her with clenched fists. That evidence was corroborated by the second State witness who stated the same. Not only that, the third and fourth State witnesses stated that the accused grabbed the complainant by the collar, pushed her, and she fell down. They also stated that the accused assaulted the complainant with clenched fists. This is what is material (to) the charge of assault that the accused is facing. The court was convinced that the State has managed to prove a prima facie case against the accused and she has a case to answer.”

The applicant would not accept that outcome.

In HC959/17 she made an application for the review of the magistrate's ruling on exactly ten grounds - none of which are real grounds for review. For instance, she would want the decision set aside on the ground that;

(i) The magistrate “erred on both the law and facts in failing to discharge” her;

(ii) The magistrate “erred both on law and facts and exercised (her) discretion incorrectly”;

(iii) The court erred in ruling that the discrepancies in the State case were not fatal and that the court erred in ruling that the State had proved a prima facie case when it had not.

It occurs to me that the applicant simply does not agree with the decision of the magistrate and has sought to have it reviewed on what are essentially grounds of appeal as opposed to review.

She is clearly entitled to approach this court on appeal but cannot be entitled, on that basis alone, to halt unterminated criminal proceedings which is what she seeks to do in the present application.

Pending the review application, the applicant has come before me on a certificate of urgency seeking interim relief, the stay of the criminal trial in case no. GWP263/17. This is to enable her to prosecute the review of the decision dismissing her application for discharge at the close of the State case.

The second respondent conceded the application.

Counsel for the second respondent submitted that the complainant was not a credible witness because she had admitted, under cross-examination, that she had previously been convicted of assaulting the applicant in respect of the same fight. In addition, it was common cause that there was bad blood between the two of them arising out of their business competition. The other State witnesses are known to the complainant and therefore could not be relied upon.

Christmas having come quite early in the year for counsel for the applicant, he submitted that the applicant has a reasonable apprehension that the trial magistrate is biased against her because;

(i) Firstly, she decided the matter without regard to the submissions made in the written application for discharge.

(ii) Secondly, when an application for review was made to this court, the magistrate refused to postpone the trial proceedings sine die to enable the applicant to prosecute the review application. She elected, instead, to postpone the matter to 21 April 2017 threatening to continue with the trial in the absence of a court order stopping it.

I have already commented on the reasoning of the trial magistrate in rejecting the application. To her, there was sufficient evidence led by the State on the alleged assault to establish a prima facie case for the applicant to answer.

The applicant wanted no other outcome of the application except a discharge because the witnesses were discredited. She simply did not agree with that finding, and, for that reason, the trial should be stopped and the matter taken to be tried by this court.

Regarding the alleged bias, it is significant to note;

(i) Firstly, that this is not relied upon as a ground for review in HC959/17 but appears to be an afterthought.

(ii) Secondly, it is common cause that there has been no application made to the judicial officer for her recusal on the ground that she has exhibited traits of bias.

It means, therefore, that, one can scarcely ignore the possibility that it is being thrown in here out of desperation by a person who cannot accept, that, in the duel obtaining in adversarial criminal proceedings a decision may be made for or against a party.

You do not throw the judicial officer out through the window for arriving at a decision adverse to you. A judicial officer is not biased merely because he or she has made a decision against one party in favour of the other.

I did not accede to the concession made by counsel for the prosecution because I was of the view that it was made without thorough and due consideration of the facts of the matter.

HB08-09 : LUNGISANI DUBE vs THE STATE
Ruled By: CHEDA J

In addition, I am extremely concerned by the lack of diligence, and cavalier attitude, of counsel for the respondent in this matter.While, as an officer of the court, he is expected to be fair in his representation of an accused, or suspect's, interests, such “fairness” should not leave the court ...

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

If it had not been that it goes to the very root of the Declaration of Rights contained in Chapter 4 of the Constitution of Zimbabwe, in particular the right of every person to choose and be represented by a legal practitioner of their choice before any court of law, tribunal, or forum, it would have been comic indeed.

On 17 July 2015, at about midday, a commuter omnibus was making its way to Guruve along Mvurwi-Kanyemba road after allegedly picking up a passenger at an undesignated zone, when the applicant, a Municipal Police Officer at Mvurwi Town Council, pounced.

He allegedly emerged from the tall grass wielding some spikes which he threw in front of the moving commuter omnibus.

Sensing danger, as the spikes no doubt would have slit his tyres into smithereens, the driver is said to have swerved but lost control of the vehicle which overturned and was extensively damaged.

For his troubles, the Municipal Police Officer was charged with contravening a section of the Road Traffic Act [Chapter 13:11] and enlisted the services of Charles Warara, a legal practitioner, to conduct his defence.

After a false start, the trial was set to commence on 18 August 2015 before the first respondent sitting at Guruve Magistrates' Court. Charles Warara could not attend court for some reason or the other but sent his associate, Raymond Wenyeve, to appear in court and apply for a postponement to enable the accused person's lawyer to attend.

The magistrate would have none of it.

Although Raymond Wenyeve had been recalled from leave to do the honours and had no prior knowledge of the case, the first respondent dismissed the application for a postponement and directed that the trial commence immediately.

He would not hear of a referral of the matter to the Constitutional Court on the ground that the applicant's right to a fair trial and to be represented by a legal practitioner of his choice was being violated.

And commence the trial did - even under those circumstances; and, at the end of the day, it was remanded to 25 August 2015 for continuation of trial - a date unilaterally set by the first respondent.

As it turns out, the lead counsel for the accused person, Charles Warara, could not attend court on that date as well forcing the unfortunate Raymond Wenyeve to retrace his steps back to Guruve Magistrates Court.

Once at that court, the ubiquitous Raymond Wenyeve launched another bid to have the matter referred to the Constitutional Court on the basis of a violation of the accused person's fundamental right to a fair trial and denial of legal presentation of his own choice.

He also made an application for the first respondent to recuse himself on suspicion of bias.

While making his application, he must have made remarks which infuriated the magistrate, who not only dismissed the application, but also ordered his immediate arrest for contempt of court - even as the legal practitioner was busy addressing the court.

Raymond Wenyeve was handcuffed by a prison officer and detained until his release at lunch time.

Now, that is some piece of work by any standards.

The conduct of the judicial officer brings to contention the remarks of FALI NARIMAN: Judges' Are They Like Emperors, where he said:

“That Judges must have modesty and humility, that they must know their limits, and that they must not behave like emperors is sound advice.”

The learned author concluded, in that article, by saying:

“No, we don't need judges who behave like emperors. What we do need are those; whom the lust of office does not kill; whom the spoils of office cannot buy; who possess opinions and a will; who have honour and will not lie…,.; who live above the fog in public duty and in private thinking.”

A judicial officer must create an environment in his court which is not only conducive to fairness, fair trial, and justice, but also be seen to be upholding the rights of accused persons.

In his court, justice must not only be done - it must also be seen to be done.

Where legal practitioners, performing their duties of representing accused persons in court, no matter how tenacious they are in the pursuit of their client's rights, are arrested while sheltering under court privilege, then all pretensions at fairness are thrown out through the window. In fact, the whole process of the administration of justice is turned into a mockery, and, in its place, is substituted the law of the jungle - that only might prevails.

A judicial officer must always guard against the excesses of power, against the abuse of judicial authority to settle personal scores.

Counsel for the second respondent submitted that she had indeed confirmed with the public prosecutor handling the criminal trial that the first respondent had ordered the arrest of a legal practitioner representing his client in a court of law.

She was also of the view that it was the first of its kind, rendering her powerless to even begin to oppose the application.

As far back as 1859, JOHN STUART MILL had made the point in his book, On Liberty, that:

“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection (…,.); the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others.”

We live in a tolerant society that recognises the Constitutional right of accused persons to be represented by counsel of their choice in defence of criminal charges.

There should never come a time when the business of representing others becomes a hazardous exercise because a legal practitioner may be dragged away from the bar kicking and screaming while conducting a defence at the whim of a judicial officer.

We must be able to draw the line somewhere and say: this cannot be done!

This case also brings into the fore the offence of contempt of court. It is sometimes referred to as “scandalising the court” or “murmuring judges.”

Given its parentage in the 18th Century, it is unsurprising that this form of contempt tends to deny an accused person the usual Constitutional protections that should be guaranteed. It also creates judicial uncertainty and courts have generally found it difficult to articulate the ingredients of the offence. For one thing, one struggles to grasp both the actus reus and mens rea elements of the offence.

In the present case, a legal practitioner was making submissions before the court to the best of his ability when he offended the magistrate.

Acting as both the prosecutor, judge, and executioner, the magistrate ordered that the legal practitioner be handcuffed and detained. There was no recourse to any other authority thereby sealing the fate of the hapless legal practitioner.

Indisputably, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors and to curb the excesses of judicial officers like the first respondent. Such errors should be capable of being corrected, reversed or varied at a higher level.

I state the obvious when I say, that, in an adversarial system, litigants should have an unrestricted right of appeal or review to serve as a check on the exercise of judicial power in cases where litigants are aggrieved.

Our system provides the applicant with a remedy, that of seeking a review of the proceedings in this court where the applicant is aggrieved. The applicant chose that route and filed an application for review in HC8260/15 which application is now pending and is yet to be determined.

Even after the drama involving the arrest of a legal practitioner, while discharging his duties in court, the first respondent's attention was drawn to the fact that the proceedings had been brought before this court on review. He was asked to defer the criminal trial until the determination of the review application in HC8260/15.

Predictably, the first respondent refused.

Instead, he has directed that the trial resumes on 24 September 2015 - never mind the pending review application.

The applicant has now been forced to bring this urgent application for a stay of the criminal proceedings before the first respondent who is itching to proceed tomorrow.

In that review application, the applicant argues that he has a reasonable apprehension that the first respondent is biased and that his conduct throughout the proceedings means that there is no way the applicant can have a fair trial. For that reason, before the trial resumes, he deserves to be heard by this court on that application.

In my view, the dispassionate manner in which a judicial officer is supposed to conduct proceedings is missing in this matter.

In fact, the first respondent appears determined to try the applicant without further ado and will pull all the stops to achieve that - as if an accused person has no rights at all and as if life itself depends on the trial proceeding.

This is a criminal matter in which the offence was allegedly committed on 17 July 2015. The trial was ordered to commence on 18 August 2015 - exactly one month later. There has been no delay whatsoever, and, as such, one wonders what informs the decision of the judicial officer to proceed with the trial with indecent haste at the expense of justice and fairness.

In order to succeed in securing a stay of proceedings pending the review application, the applicant must establish those factors which would entitle him to a temporary interdict, namely;

(i) A prima facie right;

(ii) An injury actually committed or reasonably apprehended;

(iii) The absence of similar protection afforded by any other ordinary remedy; and

(iv) A balance of convenience favouring the grant of the interdict.

For interdict, it is when the respondents are barred from proceeding with the trial; Boadi v Boadi & Anor 1992 (2) ZLR 378; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

I am satisfied that all the above requirements have been met and that this is an appropriate case for a stay of the proceedings in the Criminal Court to allow the applicant to pursue the remedy of review which is available to him at law.

Accordingly, the provisional order is hereby granted in terms of the draft order as amended.

HH256-21 : IGNATIUS CHOMBO vs THE STATE
Ruled By: CHATUKUTA J

This is an application referred to by the applicant as “Court Application for the Second Revival of Temporary Variation of Bail Conditions in B1836/19: HH735/19” being made in terms of section 126(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act).The application was initially not opposed....,.The respondent abandoned ...

SC23-21 : SAMUEL UNDENGE vs THE STATE
Ruled By: UCHENA JA

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.FACTUAL BACKGROUNDThe applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the ...

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.

FACTUAL BACKGROUND

The applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the applicant authored a letter in terms of which he directed ZPC to work with an entity known as Fruitful Communications (fronted by Oscar Pambuka and Psychology Mazivisa) until 2018. The engagement was for publicity work relating to the Zimbabwe Agenda for Sustainable Socio-Economic Transformation (Zimasset) programmes.

It is common cause that the letter did not state whether or not there was any payment to be made in respect of services rendered. However, Fruitful Communications approached Zimbabwe Power Company (ZPC) with that letter claiming to have been chosen to do the publicity campaign and then invoiced ZPC for the work it alleged to have done.

Subsequently, the applicant was charged with criminal abuse of duty by a public officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”). His directive was deemed unlawful and contrary to his duties as a public officer as it favoured Fruitful Communications, enabling it to bypass the mandatory internal tender procedures to be followed by any procuring entity.

The applicant pleaded not guilty to the charge. He denied directing Zimbabwe Power Company (ZPC) to improperly engage Fruitful Communications without following tender procedures.

The applicant stated that the letter did not bar Zimbabwe Power Company (ZPC) from engaging with other media companies.

He indicated that the work to be done by Fruitful Communications was for free as it did not involve the expenditure of public funds, thus, it did not require tender approval. He submitted that Oscar Pambuka and Psychology Mazivisa had done free work for the Ministry before and it is in that context that the letter was drawn.

The applicant further submitted that if the issue for payment arose, Zimbabwe Power Company's accounting officer ought to have followed the required procedures.

He contended that Fruitful Communications and its counterparts were the ones who intended to defraud Zimbabwe Power Company (ZPC).

As such, he stated that the charges against him were influenced by a political agenda targeted at perceived political opponents. He also stated that he did not benefit from the letter.

After trial proceedings before a Regional Magistrate, the applicant was found guilty as charged.

The court opined that the determinant factor was that the applicant accepted to have authored the letter. It further held that the letter, taken in its context, was an order meant to govern the operations of Zimbabwe Power Company (ZPC).

In the result, the court sentenced the applicant to four years imprisonment, of which eighteen months were suspended on condition the applicant does not within that period commit any offence involving corruption.

Aggrieved by that decision, the applicant noted an appeal to the High Court against his conviction and sentence.

The appeal was dismissed in its entirety. The court a quo held that the trial court properly found that the applicant was not a victim of political machinations as the conduct giving rise to the charge occurred in 2016, before the change of Government.

Whilst acknowledging that there was no Code of Conduct in place envisaged by section 106(3) of the Constitution governing the conduct of Ministers, the court held that that fact did not absolve the applicant from wrongdoing.

The court a quo referred to section 9 of the Constitution and reasoned that the applicant, as a State agent, had the obligation to foster good governance and to take measures to expose, combat, and eradicate all forms of corruption and abuse of power.

It opined that the applicant's directive curtailed Zimbabwe Power Company's power to enlist the services of other service providers or invite formal bids as is required by law.

The court also found the custodial sentence imposed by the trial court to be appropriate as the crime committed is serious because it undermines public administration and subverts corporate governance.

Aggrieved by the decision of the court a quo, the applicant filed a composite application for leave to appeal and bail pending appeal in the court a quo.

In dismissing the application, the court held, that, the appeal against conviction and sentence had no prospects of success. It held that the letter, which the applicant wrote, directed Zimbabwe Power Company (ZPC) to engage Fruitful Communications for a specific period. It reasoned that had the work been for free, the letter ought to have spelt out that the engagement would be for free as alleged by the applicant.

Dissatisfied by the court a quo's refusal to grant it leave to appeal, the applicant sought leave to appeal to this Court against his conviction and sentence.

The application was struck off the roll because it was premised on the High Court Act instead of the Rules of this Court. The applicant states that, that was an oversight by his legal practitioners.

He then mounted the present application for extension of time within which to apply for leave to appeal to this Court.

He argues that he has high prospects of success as his conviction was wrong and that the sentence imposed by the trial court was unprecedented.

The applicant further contends that the letter of 14 January 2016 was taken out of context in that things he did not say were read into it. He further argues that he was convicted on dereliction of duties which were not spelt out.

The respondent opposed the application and averred that the court a quo's findings in respect of the applicant's conviction cannot be assailed.

The respondent states that the applicant's conduct, of giving directives to his subordinates to work with Fruitful Communications till 2018, without following tender procedures, constituted criminal abuse of office. It avers that the applicant's act, of signing the letter, is evidence that he agreed and associated himself with the contents thereof, and, thus, showed favour to Fruitful Communications.

The respondent also contends that the court a quo properly exercised its sentencing discretion in that the sentence imposed does not induce a sense of shock or outrage.

This application raises two issues for determination:

1. Whether or not the delay was inordinate?

2. Whether or not the applicant has prospects of success on appeal?

The timelines governing the present application are provided for by Rule 20 of the Rules which provides as follows:

“Applications for leave to appeal

20(1) A person who has been refused leave to appeal by a judge of the High Court may, within ten days of the date when leave to appeal was refused, or within fifteen days of conviction, whichever is the later date, apply to a judge for leave to appeal.”

In Chikurunhe and Ors v Zimbabwe Financial Holdings SC10-08…, the court held that for leave to appeal to be granted, one must show that he or she has prospects of success on appeal.

That is the overriding consideration....,.

Counsel for the applicant submitted that the applicant was convicted and sentenced on 20 July 2018. Aggrieved by both conviction and sentence, he appealed to the court a quo which dismissed his appeal in its entirety on 8 June 2020.

He further submitted, that, on 11 June 2020, the applicant made an application to the court a quo for leave to appeal to the Supreme Court which was dismissed.

He averred that the applicant subsequently applied for leave to appeal at the Supreme Court on 28 July 2020 and the application was struck off the roll for being fatally defective as it was made in terms of the High Court Act instead of the Supreme Court Rules, 2018.

Counsel for the applicant submitted, that, on 9 October 2020, the applicant applied for an extension of time within which to apply for leave to appeal to this Court. He avers that the delay was not inordinate as it was predicated on his oversight which he immediately rectified by mounting the present application based on the correct Rule....,.

Counsel for the respondent conceded, during the hearing of the application, that the delay in applying for extension of time within which to apply for leave to appeal was not inordinate....,.

1. Whether or not the delay was inordinate

Taking into consideration the parties' agreement, that the delay was not inordinate, the overriding consideration in an application of this nature is whether or not the applicant has prospects of success on appeal.

The concession by counsel for the respondent is, therefore, noted and I find that the delay was not inordinate.

HB22-15 : THE STATE vs FREDDY SAVANHU
Ruled By: KAMOCHA J

The 31 year old accused was charged with murdering his 19 year old girlfriend on 16 November 2013.

It being alleged, that, on that day, he had a misunderstanding with her and struck her with a stone on the head close to the right ear intending to kill her or realizing that there was a real risk or possibility that his conduct may cause death and continued to engage in that conduct despite the risk or possibility.

It was alleged, that, that took place around 0930 hours along a foot path near Torwood Cemetery, Redcliff, in the Midlands Province.

When the charge was read to the accused he told the court that he admitted it: but, when the court asked him if he intended to kill the deceased his reply was that he admitted causing the death of the deceased without the intention of killing her.

A plea of not guilty was accordingly entered on behalf of the accused and his defence counsel advised the court that the plea was in accordance with the instructions the accused had given him.

The matter proceeded to trial.

The State read and produced its outline as exhibit one which I do not intend to reproduce here. I, however, do reproduce infra the Defence Outline which was also read and produced as exhibit 2. It reads thus:

“The accused will plead not guilty to a charge of murder, but will tender a limited plea. He pleads guilty to culpable homicide.

The accused and the deceased were lovers.

On 16 November 2013, the accused visited the deceased. The deceased asked the accused to accompany her to the bush where she intended to relieve herself. When they were in the bush, it was then that the deceased advised the accused that she was pregnant and that the accused was responsible. The accused questioned the deceased how she was sure that it was his pregnancy when the deceased had another boyfriend who was known to the accused. The deceased insisted that she was going to go with the accused to his residence and stay with him as husband and wife.

The accused then walked away, leaving the deceased behind. The deceased followed him.

This angered the accused who slapped the deceased across her face once with the back of his hand and once again across the face with the inside of his hand. The deceased staggered and started walking away.

The accused, at that point, was consumed with anger, lost his composure, restraint, and proper thinking, involuntarily picked up a stone with two hands and struck the deceased once on the head, and she fell down and it is probably during the fall that she broke her leg.

After falling down, she started to bleed from the nose and the ears, breathing heavily, and having difficulties in breathing. The accused panicked and fled from the scene, and went to seek refuge in Chitungwiza, Harare, from where he was subsequently arrested by police.

The accused will say that he never had had any premeditated intention to strike, or attack, or harm the deceased. He acted on the spur of the moment. He acted out of anger and loss of self control.

Accused accepts the evidence of all State witnesses….,.

Wherefore, the accused prays that he be acquitted of the charge of murder and that his limited plea be accepted.”

The next exhibit was exhibit 3 - the accused's confirmed extra curial statement, which was a confession, read as follows:

“I have understood the caution. I admit to the charge being levelled against me that I assaulted Thandiwe Ndlovu with a stone once on the right side of her head which caused her death. When she fell down that is when I ran away.”

The fourth exhibit was a post mortem report compiled by the doctor who examined the remains of the deceased. The doctor concluded that the cause of death was;

(1) Subarchnoid haemorrhage;

(2) Blunt force trauma to the head;

(3) Homicide.

Exhibit 5 was the stone which the accused used to strike the deceased on the head.

It is a very heavy stone weighing 12,67kg. It cannot be picked up with one hand due to its shape and weight. It is still blood-stained.

The State then led viva voce evidence from Kelvin Mutangi.

His evidence was common cause and was not contested. He is the one who first saw the deceased shortly after she had been attacked and went to report to the police. When he returned with the police to where she lay groaning she had died.

The evidence of all the other witnesses listed in the State Outline was admitted as it appears in the State Outline in terms of section 314 of the Code.

The accused, in his Defence Outline, had already indicated that he accepted the evidence of all State witnesses.

It must be noted that the accused's Defence Outline amounted to a confession with minute details of what occurred.

It reveals that he was the aggressor right from the onset. He hit the deceased with the back of his hand and with an open hand. As the deceased started to stagger and walked away he picked up the stone, exhibit 5, with both hands and aimed a blow at her head. The deceased was unarmed and defenceless. She posed no danger to the accused.

The accused sought to suggest that he did not know what he was doing as he had been possessed by a certain evil spirit.

That does not need any serious consideration and is hereby rejected as it does not make sense.

Similarly, his suggestion that he was provoked by the fact that the deceased informed him that he had impregnated her is also devoid of any merit and must be rejected.

He admitted, that, as lovers, he and the deceased used to make love. A natural consequence of lovers indulging in making love is pregnancy.

His legal representative, correctly, in my view, advised the court that he did not support the accused's suggestions. He further conceded that he did not persist with the limited plea of culpable homicide and abandoned it.

He then agreed with the State counsel that the accused was, in the circumstances, guilty of murder dolus eventualis.

In the result, I am in agreement with the legal practitioners and find the accused guilty of murder with constructive intent.

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The State consented to the application.

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

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

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

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

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

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

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

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

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

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

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

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

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

The affidavit by Dr Ndekwere was produced as exhibit 1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tawanda Miti

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court also noted that the accused denied the accusations.

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

The deceased was inside the first witness's car.

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

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

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

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

The State closed its case.

Counsel for the accused advised the court of his instructions to make an application for the discharge of the accused person at the close of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Counsel for the accused undertook to file a written application by 5 June 2018 to which the State counsel would respond to by 8 June 2018.

The case was adjourned to 15 June 2018 for ruling on the application.

The State counsel filed his response on 13 June 2018 despite having himself undertaken to file the same by 8 June 2018. The accused's counsel filed his application on 5 June 2018 as undertaken by him.

The court was unable to give a ruling on 15 June 2018 and postponed the matter to 18 June 2018 on which date the accused's application was dismissed. It was indicated that the reasons for the dismissal of the application would form part of this judgment and they are given below.

An application for discharge of the accused person, made in terms of section 198(3) of the Criminal Procedure and Evidence Act, raises an issue of law, and, as such, in terms of section 10(1)(a) of the High Court Act [Chapter 7:06], a determination of the application lies within the jurisdiction of the judge only. Assessors have no voice or input in the decision.

The decision to dismiss the application was therefore made by the judge alone.

The evidence led from State witnesses, and through admitted exhibits, was that the deceased suffered burn injuries in circumstances where the only other person present at the material time was the accused.

Evidence was led that the deceased shouted out for assistance calling out the first State witness names. The deceased made an accusation, in the presence of the first and second State witnesses, that the accused had poured paraffin on her body and set her ablaze.

The accused did not deny that the deceased made those utterances and thus named him as her assailant.

The thrust of the accused's legal practitioner's cross-examination was aimed at establishing that the accused denied the accusation.

In the accused's warned and cautioned statement, exhibit 3, the accused admitted that the deceased informed her neighbours that the accused had burned her. In the same statement, he stated that he did not dispute the accusation.

This position contradicted his line of defence, as shown by the cross-examination of State witnesses wherein he put it to the witness that he disputed the allegation.

Evidence was also led from State witnesses, that, the deceased accused the accused of having subjected her to harassment. Further, evidence led was that the deceased asked the accused as to why he had burnt her and why he had also not poured paraffin upon himself and burnt himself as well.

The defence counsel contended that the affidavits, exhibits 1 and 2, produced by the State, did not certify the deceased dead nor provide details of the cause of death thereof.

The argument, then, was that there was no evidence of murder led in the absence of a postmortem report.

The evidence led did not, however, place the fact of whether or not the deceased passed on, into issue. The same applied to the cause of death. More importantly, section 207 of the Criminal Procedure and Evidence Act provides that:

“…,. Where a court finds that part, but not all, of the facts of an offence charged have been proved; it shall nevertheless convict the accused of the offence if the facts that are proved disclose the essential elements of the offence.”

Further, section 274 of the Criminal Law (Codification and Reform) Act provides that:

“Where a person is charged with a crime, the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he or she committed the crime charged.”

It is therefore clear that a conviction for the offence charged can be grounded where the State has not proved all facts of an offence charged; provided that the facts which have been proven disclose the essential elements of that charged offence.

Equally, an accused can be found guilty of another offence disclosed by proven facts where the originally charged offense has not been proven but some other offence.

Section 198(3) of the Criminal Procedure and Evidence Act cannot be successfully invoked where the facts, on the evidence led, are such that the accused can be convicted on any other cognizable offence on the evidence led by the State.

It is, in my view, critical to note, that, the effect of section 274 of the Criminal Law (Codification and Reform) Act, is that, where evidence led and proven facts are found that another cognizable offence at law was committed, other than the one charged, the accused may be convicted of committing that cognizable proven offence.

In this regard, such other offence does not have to be a permissible verdict as provided for in section 275 of the Criminal Law (Codification and Reform) Act.

Section 275 of the Criminal Law (Codification and Reform) Act provides for competent verdicts in relation to specified offences.

A list of the specified offences appears in the Fourth Schedule to the Criminal Law (Codification and Reform) Act.

For the avoidance of doubt, where murder is the offence charged, the permissible verdicts are listed as -

(a) Infanticide.

(b) Culpable homicide.

(c) Any crime which a person might be convicted of if he or she were charged with a crime specified in paragraph (a) or (b).”

It is noted that paragraph (c) refers to permissible verdicts on charges of infanticide or culpable homicide. Permissible verdicts on a charge of infanticide or culpable homicide are equally permissible on a charge of murder. The permissible verdicts on a charge of culpable homicide are listed as;

“(a) Inciting suicide.

(b) Rape.

(c) Public Violence.

(d) Unlawful termination of pregnancy.

(e) Assault.

(f) Threatening to commit murder.

(g) Any crime of which a person might be convicted if he or she were charged with a crime specified in paragraphs (a) to (f).”

It follows, therefore, that a person charged with murder, as in the present case, may be found guilty of any of the offences listed as permissible verdicts on a charge of culpable homicide.

Section 274 of the Criminal Law (Codification and Reform) Act, has, however, gone further to extend the powers of the court to convict a person of any other offence proved on the evidence.

In this regard, section 275 of the Criminal Law (Codification and Reform) Act, which provides for permissible verdicts on specified offences, is applicable, subject to the rider that it does not derogate or limit the application of sections 273 and 274 of the Criminal Law (Codification and Reform) Act.

It appears to me, therefore, that, because of the provisions of sections 274 and 275 of the Criminal Law (Codification and Reform) Act aforesaid, the cases which may be discharged in terms of section 198(3) of the Criminal Procedure and Evidence Act will be fewer and far in between.

To begin with, it is expected, that, where there is no evidence that the accused committed the offence charged, the Prosecutor General should, in line with the exercise of professionalism, just concede and withdraw the indictment if there is no probable chance that the accused may have committed any other offence which he might be convicted thereon.

I need to make it clear, that, the reference to “any other offence” should not be limited to a permissible verdict but to any other cognizable offence at law.

To this extent, therefore, whilst I accept the principles which the courts are guided by, as set out in S v Tsvangirayi & 2 Ors 2003 (1) ZLR 188, which judgment considered earlier decided cases on the point, the judgments must now be read taking cognizance of the effect of section 274 of the Criminal Law (Codification and Reform) Act aforesaid.

My understanding was, that, in earlier judgments, the reference to any other offence was interpreted as a reference to a permissible verdict. If I am right in my understanding of the old position, as embraced by the courts, then it is necessary that l pronounce that an application made in terms of section 198(3) of the Criminal Procedure and Evidence Act, at the close of the State case, should not be granted in cases where the State evidence prima facie establishes the commission by the accused not only of a permissible verdict offence - but of any or other offence cognizable at law.

In casu, the State evidence, which l have outlined and will not repeat, did, prima facie establish the possible culpability of the accused on the main charge in that the deceased named the accused as the person who had inflicted the burns upon her.

In reasoning that a prima facie case was established in relation to the main charge, I do so mindful of the defence argument that a post mortem report was not produced.

I have however considered that proof of death may arguably be established from the fact that no issue is taken by the accused to the allegation that the accused died of burn injuries as alleged in the indictment.

Further, from the State evidence, it cannot be said, that, assuming that the State evidence is accepted, the facts would not ground a prima facie case of culpable homicide on the reasoning that if the court were to accept that the accused, as alleged by the deceased, did pour paraffin on the deceased and set her alight with matches, such conduct would not be classified as or qualify to be described as an act of negligence as would found a conviction under section 49 of the Criminal Law (Codification and Reform) Act.

Further still, at the very least, the State evidence prima facie established a case of assault as defined in sections 88 and 89 of the Criminal Law (Codification and Reform) Act which is a competent verdict on a charge of murder by virtue of assault being a competent verdict on a charge of culpable homicide, and culpable homicide being a competent verdict on a charge of murder.

In this regard, I refer to my earlier exposition of the provisions of section 275 of the Criminal Law (Codification and Reform) Act.

By definition, assault as an offence is very wide and includes application of any substance to another person's body without that person's consent. Pouring paraffin on someone, constitutes an assault and setting another person on fire constitutes a very serious form of assault.

In my judgment on this application, I determined that the evidence before the court established a prima facie case against the accused.

It was sufficient to raise a presumption which, unless rebutted, pointed to the accused as having been responsible for the injurious assault or injuries suffered by the deceased.

The word prima facie is a latin word which means 'at first view' or 'on the face of it.'

A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.

As already alluded to, it was established, on the evidence, that, the deceased suffered severe paraffin burns which she attributed to the conduct of the accused. To hold that the accused has no case to answer would amount to a finding not supportable on the evidence and a travesty of justice.

It was for the above reasons that I dismissed the application....,.

State counsel's submissions showed a misdirected understanding of the requirements and principles which inform applications made under section 198(3) of the Criminal Procedure and Evidence Act....,.

I was left wondering as to whether counsel for the State was now briefed to argue the defence case as evidenced by how he castigated the veracity of State witness evidence. State counsel argued that the court must hold that the deceased must have suffered “some confusion when she caught fire and mixed up the sequence of events.”

What was astonishing, from the submission, was that the deceased could not have been confused and mixed up the sequence of events because she never testified. The dead do not testify, and, as a matter of logic and common sense, the dead cannot mix up the sequence of events without testifying.

The State counsel also referred to the case of R v Blom 1939 AD 188 on the drawing of inferences from circumstantial events or facts.

His argument or submission was that an inference of guilt could not be drawn as the only reasonable inference from the evidence led by the State.

The reference to the well celebrated case was totally misplaced because it would not be possible for a court to draw conclusive inferences at the close of the State case.

The State's submissions, in support of the concession that the State had not established a prima facie case, were not well taken and showed a lack of appreciation of the concepts involved in such applications.

HB26-20 : THE STATE vs BENJAMIN MPANDUKI
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused has been arraigned in this court on a charge of murder: it being alleged that on 11 July 2017, at Mabhena Village, Mpinda 3, Chief Malisa, the accused unlawfully caused the death of Pamela Mpanduki by striking her all over the body with a fan belt and axe several times intending to cause her death.

The accused pleads not guilty to the charge. He tenders a plea of guilty to the lesser charge of culpable homicide. The state accepts the limited plea.

The agreed facts are as follows:

The accused person was aged 42 years at the time of the offence. The deceased, who was a juvenile aged 15 years, was the accused's daughter.

On the 11th of July 2017, at around 2100 hours, the deceased was at home in the company of her mother and two siblings. The accused person arrived and indicated that he wanted to discipline the deceased. It had been alleged that the deceased was having an affair with a certain young man in the village, one Pride Chando.

The accused took a grinding mill belt made of rubber and invited the deceased into one of the huts.

Whilst inside the hut, the accused assaulted the deceased with the fan belt several times, and indiscriminately, all over the body. The accused subsequently left the homestead and proceeded to his tuckshop where he slept.

The deceased's mother attended to the injured juvenile and observed that she had sustained a cut on the head; had a swollen forehead; and bruises on her back. The deceased proceeded to sleep in her room.

The following morning, the deceased's mother found the deceased dead in her room. She had succumbed to the injuries sustained during the assault.

The matter was reported to the police. The accused was arrested.

The accused denies intentionally causing the death of the deceased.

A post mortem report, compiled by Doctor S Pesanai, at United Bulawayo Hospital, on 17 July 2017, following an examination of the remains of the deceased, reveals that the cause of death was:

(a) Asphyxia;

(b) Bronchoaspiration;

(c) Subarachnoid haemorrhage;

(d) Assault;

On internal examination, the postmortem report reflects that the deceased suffered a scalp haematoma on the left parietal and occipital regions.

It is clear that the assault on the deceased was severe.

We are satisfied, that, on the evidence placed before the court, the accused negligently caused the death of the deceased. There is no evidence that the accused's intention was to bring about the death of the deceased.

In the result, and accordingly, the accused is acquitted on the charge of murder. The accused is found guilty of culpable homicide.

HB67-15 : THE STATE vs QINISO SIBANDA
Ruled By: MAKONESE J

The accused was arraigned in this court on a murder charge. The State alleges, that, on 29 December 2014, at Chitete 1, Lusulu, Binga, the accused did wrongfully, unlawfully, and intentionally kill and murder Linda Bongiwe Manyathela, a female juvenile aged six (6) years at the time of her death.The ...

HB127-17 : THE STATE vs GLADYS MUTOPA
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

The accused, who was aged 56 years at the time of this offence, appears in this court on a charge of murder: it is alleged, that, on 30 November 2008, and at village Matavire, Chief Chireya, Gokwe, the accused did wrongfully and unlawfully kill and murder a female juvenile, Linda Mutopa, then aged eight (8) years.

The accused pleads not guilty to the charge and tenders a limited plea of guilty with respect to culpable homicide.

The State accepts the limited plea.

The brief facts of the case, as contained in the Statement of Agreed Facts (exhibit 1) are, that, on the date in question, the accused resided with the deceased, who was her granddaughter, at her homestead. In the early hours of the day, the accused left her home to fetch some water, leaving the deceased and her siblings behind.

Later in the day, the accused returned home and learnt that the deceased had consumed groundnut seed which had been reserved for planting. The accused confronted the deceased and demanded to know why she had consumed the groundnuts. The deceased remained silent and the accused slapped her in the face. The accused proceeded to hold the back of the deceased's hand, hitting the head against the kitchen wall.

The deceased fell to the ground unconscious.

Despite attempts to render assistance to the deceased, she died as a result of injuries sustained in the assault. The matter was reported to the police, leading to the arrest of the accused.

The accused's body was ferried to Mpilo Central Hospital for a post mortem examination.

A report compiled by Dr I. Jekenya, under report number 548/543/2008, reveals that the proximate cause of death was:

(a) Brain haemorrhage;

(b) Head injury;

(c) Assault;

On external and internal examination, the pathologist observed, that, the body was in an advanced state of decomposition. The postmortem report has been marked as exhibit 2.

We are satisfied, that, from the evidence presented to this court, the accused negligently caused the death of the deceased. The accused, however, did not have the requisite mens rea to bring about the death of the juvenile.

We accordingly find the accused not guilty in respect of the charge of murder. The accused is found guilty of culpable homicide.

HB129-17 : THE STATE vs AGNES CHIPIKA
Ruled By: MAKONESE J

The 14 year old Nobert Majoni died at the hands of his mother on 10 December 2015.

The accused was upset that the deceased had consumed a certain quantity of rice which had been reserved by Sibongile Chipika for consumption the following day. The accused struck the deceased all over the body with switches and throttled him leading to his death.

The accused pleads not guilty to the charge of murder and tenders a limited plea of guilty in respect of the lessor charge of culpable homicide.

The State has accepted the limited plea and a Statement of Agreed Facts have been tendered into the record of proceedings as exhibit 1.

In brief, the facts of this matter are as follows:

The deceased was aged 14 years at the time he met his untimely death. The accused is his biological mother. The accused was aged 36 years at the relevant time. On 9 December 2015, and in the evening hours, the accused person, her sister, Sibongile Chipika, the deceased, and two other children gathered for supper where rice was served. Sibongile did not finish her portion and reserved it for the following day.

On 10 December 2015, Sibongile Chipika discovered that her rice had been consumed. The deceased was the prime suspect. The deceased was quizzed over the missing rice and he failed to proffer an acceptable explanation.

This led to Sibongile Chipika roping in Eunita Sibanda and Shyline Chipika to fetch some switches. The deceased was then subjected to a prolonged assault on the head, hands, and legs using switches. The assault was sustained and was indiscriminate and resulted in the deceased falling unconscious. At some stage, the accused throttled the juvenile with her bare hands.

The deceased died as a result of injuries inflicted in the assault despite efforts by the accused, and others, to administer first aid by pouring water over the injured juvenile.

The post mortem report, compiled by Dr Ivian Betancourt, on 14 December 2015, has been marked as exhibit 2. The cause of death was undetermined due to the advanced state of decomposition of the remains.

On the evidence placed before this court, we are satisfied that the limited plea has been properly made and conceded by the State. There is no evidence that the accused intended to cause the death of the deceased. The accused is accordingly found not guilty and acquitted on the charge of murder.

The accused is however found guilty of culpable homicide.

HH133-17 : THE STATE vs NAISON CHAYAMBUKA and MOSES MUSUSA
Ruled By: TSANGA J

The two accused were arraigned before this court on a charge of murder; it being alleged, that, on 1 January 2016, around 00:30 hours at Home Plus Bottle Store in Bromley, NRZ Quarters, they unlawfully and intentionally murdered Blessing Tondodza by head butting, kicking, and assaulting him with a jacaranda ...

HH435-16 : THE STATE vs WESTON MOMBESHORA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully ...

HB119-20 : TINASHE KAMBARAMI vs THE STATE
Ruled By: MAKONESE J and MABHIKWA J

The appellant appeared before a Magistrate sitting at Tredgold, Bulawayo facing a charge of contravening section 113(1)(a) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He pleaded guilty to the charge and was convicted and sentenced to pay a fine of $80, in default of payment 18 days imprisonment. The appellant was not legally represented at the trial.

He now appeals both against conviction and sentence.

The State does not support the conviction and sentence and concedes that the conviction and sentence cannot stand.

It is our view, that, the concession is indeed proper.

Background

The brief facts surrounding this matter, as gleaned from the State Outline, are as follows:

In August 2017, the appellant assigned the complainant to undertake some work at his business premises. The appellant advised the complainant to leave his tools inside his offices in a safe, under lock and key.

When the complainant turned up to resume work at the appellant's premises the following day he discovered that an electrical extension cord was missing.

The appellant admitted having taken the extension cable and promised to return it.

The appellant apparently failed to replace or return the extension cord. The complainant reported the matter to the police leading to the arrest of the appellant. The extension cable was valued at $74.

It is on these facts that the appellant was arraigned before the court a quo facing a theft charge.

In his Notice of Appeal, the appellant argues that the court a quo erred in returning a guilty verdict when the appellant had raised triable issues in the process of the recording of the plea.

In this regard, the appellant contends, that, he alerted the trial Magistrate that he had permission to take the complainant's property.

This issue was never explored by the trial court.

The appellant further argues, that, the court a quo misdirected itself by returning a verdict of guilty without satisfying itself on the genuineness of the plea of guilty that was being tendered by an unrepresented accused.

The learned Magistrate, it has been argued, did not comply with the peremptory provisions of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It is necessary to indicate, that, the provisions of 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] are to be followed in all cases to ensure that, before a guilty plea is entered, the court is satisfied that all the essential elements of the charge have been put to the accused and that he understands them.

This provision must not be taken lightly or casually by trial magistrates as this is the whole purpose of the plea recording procedure.

For the avoidance of doubt, the court shall restate the provisions of section 272 of the Criminal Procedure and Evidence Act which are in the following terms:

“If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed:

(a) Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

(b) Is not satisfied that the accused has admitted or correctly admitted the essential elements of the offence or all the facts or omissions on which the charge is based; or

(c) Is not satisfied that the accused has no valid defence to the charge;
the court shall record a plea of not guilty and require the prosecution to proceed with the trial.”

In the present case, the appellant had this exchange with the trial Magistrate before the guilty plea was entered:

“Q. Correct that you took one extension code without his permission?

A. Yes.

Q. What was your intention in taking it?

A. To use it, my employee needed it.”

The court put the further question to the appellant:

“Q Any right to take it without his permission?

A. Yes.”

The responses by the appellant should have triggered the court into enquiring further into the genuineness of the appellant's plea.

The court ought to have observed that there were material contradictions in the answers which were being given by the appellant. The court needed to satisfy itself that the admission of guilt was unequivocal, genuine, and unqualified.

The court, clearly, in our view, erred in taking a cursory approach to the plea recording procedure, resulting in the conviction of the accused.

It must be noted, that, even during mitigation, the appellant raised something which should have alerted the Magistrate to the fact that the plea was not genuine. The appellant stated the following:

“We ended up using the cable since accused left his tool box behind. I had requested to replace the cable. But the complainant kept changing the price.”

The explanation given in mitigation of the appellant left a lot of unanswered questions as to what had really transpired.

It is our view, that, the trial Magistrate ought to have assisted the unrepresented accused as he appeared to have been raising a defence to the charge.

It is trite law, that, when an accused person pleads guilty to an offence and then goes on to deny an essential element of the offence charged, the court must proceed to alter the plea to one of not guilty. The matter must proceed to a full trial in order to canvass the issue of criminal intent: see State v Chirodzero HH14-88.

In the case of State v Chirodzero HH14-88 REYNOLDS J emphasized that the court must constantly bear in mind the dangers inherent in convicting persons upon guilty pleas. Magistrates must do everything in their power to ensure that injustice does not occur. A trial Magistrate must ensure that the guilt of the accused is established both in fact and law. The accused must admit all the essential elements of the charge before a plea of guilty is entered.

In State v Samson Phiri HB133-17, this court remarked that:

“It was therefore unnecessary and totally uncalled for and indeed inappropriate for the learned trial Magistrate to extract an admission of guilt from the unrepresented accused. Once the accused has given answers that show that the plea of guilt is not unequivocal, then, the matter is supposed to end there. The matter must proceed to trial.”

These remarks apply with equal force in this matter.

The appellant indicated that he believed that he was authorized to take the electrical cable or that he had the right to take it.

In essence, the accused's responses to questions put to him by the court clearly revealed that he was proffering some defence.

His mental intention to steal the property and to deprive the owner permanently was not established.

In any event, the State has made a further concession that the trial magistrate did not comply with the provisions of section 163A of the Criminal Procedure and Evidence Act.

A perusal of the record of proceedings indicates that the magistrate recorded the following;

“Right to legal representation explained and understood in terms of section 163 of the Criminal Procedure and Evidence Act.”

It is important to note, that, the requirements of section 163A of the Criminal Procedure and Evidence Act are made peremptory by the use of the term “shall” in the relevant section.

The record reflects, that, no response was recorded from the appellant.

Failure to explain an accused person's right to legal representation amounts to a misdirection. It is an irregularity in the conduct of the proceedings.

For this reason, alone, the conviction could not be allowed to stand.

In the result, we conclude, that, the trial Magistrate erred in convicting the appellant in the absence of an unequivocal plea of guilty, and by reason of the failure to comply with the peremptory provisions of section 163A of the Criminal Procedure and Evidence Act.

We accordingly order as follows:

1. The appeal succeeds.

2. The conviction and sentence of the court a quo is set aside.

CCC05-16 : PITTY MPOFU and SAMUKELISIWE MLILO vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

This matter is brought by way of referral in terms of section 24(2) of the former Constitution of Zimbabwe (“the former Constitution) which provides as follows:“24 Enforcement of protective provisions(1)…,.(2) If, in any proceedings in the High Court or in any court subordinate to the High Court, any question arises ...

This matter is brought by way of referral in terms of section 24(2) of the former Constitution of Zimbabwe (“the former Constitution) which provides as follows:

“24 Enforcement of protective provisions

(1)…,.

(2) If, in any proceedings in the High Court or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and, if so requested by any party to the proceedings, shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The questions referred for decision concern the constitutionality of section 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

The applicants claim, that, section 79 of the Criminal Law (Codification and Reform) Act violates their right to protection of the law as well as their right not to be discriminated against in terms of sections 18 and 23, respectively, of the former Constitution.

THE BACKGROUND

The first applicant is a 42 year old male. On 5 September 2012, he was arrested and subsequently charged with contravening section 79 of the Criminal Law (Codification and Reform) Act (the Code), briefly “deliberate transmission of HIV/AIDS.”

It was alleged, that, the applicant had deliberately infected his wife, Geziwe Ncube, with HIV.

On 27 September 2012, the applicant appeared before the magistrate for a remand hearing and requested that the matter be referred to the Supreme Court (formerly the Court which determined constitutional matters) on the following grounds:

1. Section 79 of the Criminal Law (Codification and Reform) Act (the Code), with which he is charged, is too wide, broad, and vague so as to render the law uncertain thereby infringing his right to protection of the law as set out in section 18 of the Constitution.

2. Section 79 of the Criminal Law (Codification and Reform) Act (the Code) violates the applicant's fundamental right guaranteed under section 23 of the Constitution, not to be discriminated against on any basis (including his HIV/AIDS status).

The second applicant is a woman aged 34 years. She was customarily married to one Joseph Marozva during the period 2008 to 2010. It was alleged, and proved, at her trial, that, in 2009, she fell pregnant and had to undergo routine HIV testing. Although the result was positive, she did not disclose this fact to her husband but continued to have unprotected sexual intercourse with him until he stumbled upon her antenatal card which disclosed she was taking medication for HIV/AIDS.

She was convicted of contravening section 79 of the Criminal Law (Codification and Reform) Act (the Code) and remanded for sentence.

At the resumption of the trial, on 9 July 2012, an application was made, and granted on 10 July 2012, referring the matter to the Supreme Court on the two grounds set out above as well as the following additional grounds:

(3) Whether or not the criminalization of consensual sexual conduct whereby the complainant voluntarily engaged in a sexual encounter with the accused amounts to a violation of the applicant's right to protection of the law as enshrined in section 18 of the Constitution.

(4) Whether or not the remand and prosecution of the accused, on the criminal charge under section 79 of the Criminal Code are not, on the facts, a violation of the applicant's fundamental right to personal liberty and the protection of the law.

These additional grounds were, however, not pursued by counsel for the applicants who confined himself to the first two questions. Accordingly, this judgment will deal with the two questions set out above.

THE LEGISLATIVE PROVISIONS

Section 79 of the Criminal Law (Codification and Reform) Act:

“79 Deliberate Transmission of HIV

(1) Any person who -

(a) Knowing that he or she is infected with HIV; or

(b) Realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.

(2) It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned —

(a) Knew that the accused was infected with HIV; and

(b) Consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”

Section 15 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]:

“15 Realisation of real risk or possibility

(1) Where realization of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components:

(a) A component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that;

(i) His or her conduct might give rise to the relevant consequence; or

(ii) The relevant fact or circumstance existed when he or she engaged in the conduct; and

(b) A component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a) the person whose conduct is in issue continued to engage in that conduct.

(2) If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that;

(a) The words describing the component of awareness are omitted, the component of awareness shall be implicit in the word 'recklessly' or any derivatives of that word; or

(b) The words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression 'realize a real risk or possibility' or any derivatives of that expression.

(3) Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that:

(a) The relevant consequence actually ensued from the conduct of the accused; or

(b) The relevant fact or circumstance actually existed when the accused engaged in the conduct; as the case may be.”

Section 18 of the former Constitution:

“18 Provisions to secure protection of law

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

Section 23 of the former Constitution:

“23 Protection from discrimination on the grounds of race, etc.

(1) Subject to the provisions of this section -

(a) No law shall make any provision that is discriminatory either of itself or in its effect; and

(b) No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(2) For the purposes of subsection (1), a law shall be regarded as making a provision that is discriminatory, and a person shall be regarded as having been treated in a discriminatory manner, if, as a result of that law or treatment, persons of a particular description by race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability are prejudiced -

(a) By being subjected to a condition, restriction, or disability to which other persons of another such description are not made subject; or

(b) By the according to persons of another such description of a privilege or advantage which is not accorded to persons of the first-mentioned description; and the imposition of that condition, restriction or disability or the according of that privilege or advantage is wholly or mainly attributable to the description by race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability of the persons concerned….,.”…,.

THE QUESTIONS TO BE DECIDED

The questions referred for determination, namely:

1. Whether section 79 of the Criminal Law (Codification and Reform) Act (the Code) with which the applicants are charged is too wide, broad, and vague so as to render the law uncertain thereby infringing on their right to protection of the law as set out in section 18 of the former Constitution; and

2. Whether section 79 of the Criminal Law (Codification and Reform) Act (the criminal Code) violates the fundamental right of the applicants, guaranteed under section 23 of the Constitution, not to be discriminated against;....,.

At the outset, it must be noted, that, the right afforded by section 23 of the Constitution is not a right not to be discriminated against on any basis.

The underlined portions of subsection (2) of section 23 of the Constitution…, show that discrimination on grounds of HIV/ AIDS or other status is not listed therein as a constitutionally enshrined right.

In that connection, the following observations by McNALLY JA in Kombayi v Registrar General 2001 (2) ZLR 356 (S) (see also S v Banana 2000 (1) ZLR 607 (S)…,.) are pertinent:

“There are two reasons why this argument is fallacious. The first is that section 23 of the Constitution protects the individual from discrimination on a number of grounds, but, lack of education is not one of them. The types of discrimination that are prohibited are discrimination by 'race, tribe, place of origin, political opinions, colour, creed or gender…,.'”

The argument advanced on behalf of the applicants is that section 79 of the Criminal Law (Codification and Reform) Act (the Code) infringes their right protected by section 23(1) not to be discriminated against in that it discriminates against those persons who are HIV positive by imposing on them restrictions which other members of the community are not subjected to and exerts on them a higher standard of social interaction not exerted on other citizens.

The section, so the submission went, negates the ability to conduct normal human relations, in that, a person infected with the HIV virus, or one exposed to it, would have to educate every potential sexual partner on the 'biology of HIV and ensure that they have fully understood and appreciated the nature of HIV before indulging.'

It was submitted, that, the defence of disclosure to the intended partner, afforded to persons charged under section 79 of the Criminal Law (Codification and Reform) Act was 'too burdensome' for any human being.

It was accordingly submitted, that, the limitations imposed on the applicants Constitutional rights by section 79 of the Criminal Law (Codification and Reform) Act (the Code) are not reasonably justified in a democratic society.

The fallacy of this argument lies in the fact, that, as stated above, the Constitution does not deal with the right claimed by the applicants.

Not all discrimination is proscribed by section 23 of the former Constitution.

What is proscribed is discrimination on the grounds underlined above. These are: “race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability.”

Discrimination on the basis of HIV status is not prohibited by section 23 of the former Constitution.

Thus, while section 79 of the Criminal Law (Codification and Reform) Act targets only persons infected with or exposed to the HIV virus, which can be regarded as discriminatory of those persons, such discrimination is not unlawful in that it is not proscribed by section 23 of the former Constitution.

I must accordingly disagree with the submission on behalf of the respondent, that, section 79 of the Criminal Law (Codification and Reform) Act (the Code) infringes the applicants right not to be discriminated against in terms of section 23(1) of the former Constitution.

HB52-15 : LEVISON MHOSVA and TAZVITYA MUDZINGWA and LUCKSON KWANGWARI vs THE STATE
Ruled By: KAMOCHA J and MOYO J

The second appellant is the one who is properly before court in this matter. The rest of the appellants are out of court as the Notice of Appeal filed of record only relates to the second appellant.

The second appellant was charged and convicted of extortion as defined in section 134(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations leading to the conviction of the second appellant stemmed from the fact, that, the body of the deceased, Senzeni Mhosva (appellant's relative), had been deposited at Chigombe homestead. The body was deposited as a means to compel the Chigombes to pay damages prior to burial as a condition for her burial.

He was sentenced to $400 or 3 months imprisonment. In addition, the accused persons were ordered to return the three beasts, goats, and cash to the Chigombe family.

Dissatisfied with both conviction and sentence, the second appellant approached this court.

The sum total of the grounds raised in the notice of appeal were, that, the learned magistrate erred in convicting the second appellant as no evidence linked him to the commission of the offence.

On sentence, the second appellant averred, that, the sentence was excessive in the circumstances.

PROFESSOR G FELTOE, in his Commentary on the Criminal Law (Codification and Reform) Act 2004, states as follows with regard to the offence of extortion as defined in section 134(2) of the Criminal Law (Codification and Reform) Act (the Code):

“Where, for the purpose of inducing or compelling the payment of any money or property as damages, or as marriage compensation in respect of a deceased person, X leaves or deposits the deceased person's body on any land or premises occupied by another person, or hinders or prevents the burial of the deceased person's body, he or she shall be guilty of extortion, or, if he or she failed to induce or compel the payment of any money or property, attempted extortion.”…,.

It is clear from this phrase, that, the offence is not only committed upon leaving or depositing the body, but, the offence is also committed where an accused prevents or hinders the burial of the deceased prior to certain conditions being met.

In the case of S v Ncube 1993 (1) ZLR 286 (SC), a member of the appellant's family was killed during an altercation with a member of another family. The appellants took the body of the deceased to the home of the other family, threatening that if agreement for compensation for the death was not reached the body would be left there. The other family then paid compensation. The appellants were convicted of extortion. The appeal against conviction was dismissed.

The Supreme Court ruled, that, what the applicants had done was to unlawfully subject the complainant to pressure that induced them to submit to the taking from them of an advantage in the form of compensation.

This constituted extortion - even if the compensation was made under customary law.

It is important to note, that, at the time S v Ncube 1993 (1) ZLR 286 (SC) was decided, in 1993, the legislature had not yet expressly provided for extortion in relation to matters regarding the dumping of bodies prior to burial in a bid to derive compensation from such conduct.

The legislature subsequently crafted section 134(2) of the Criminal Law (Codification and Reform) Act (the Code), which, in my view, is now specific as to the exact conduct that qualifies as extortion in such instances at law.

This offence, according to FELTOE's Guide to Criminal Law in Zimbabwe 2005 edition…, has the following essential elements:

(1) X must intend his words, express or implied, to operate as threat or pressure;

(2) He must intend the pressure to induce the complainant to submit and to hand over the advantage; and

(3) He must know that he is using illegitimate or improper pressure, eg knows money not due or knows demanding money under guise of authority to extract when he knows he has no such authority or obtains what he believes is due to him by use of illegitimate pressure….,.

In the facts before us, the deceased, who is a relative of the second appellant, died, and, at the time of her death, she was with the appellant's side of the family. She was, nonetheless, married to the complainant's side of the family during her lifetime. Upon her death, the appellant's side of the family took her body and ferried it to the complainant's side of the family and left it there.

Aynos Chigombe was the first to testify and he said, that, he had been phoned whilst he was in Masvingo and he was told that “a corpse had been left at our homestead.”…,.

He then instructed the people to inform the police so that the corpse would be taken to a mortuary (obviously the police were involved because the situation obtaining was abnormal). He also told the court that they later went to their in-laws, accompanied by three police officers; they talked and agreed. They asked what should happen, and they (inlaws) said they needed five beasts and $500 in order to bury the deceased…,.

He said they asked to go back to their elders to consult them on whether what the in-laws needed could be found; (this shows that they were not even ready with the form of compensation that was needed).

They then gathered the beasts from different relatives who chipped in with different things ie in the form of beasts and money. He said that the contributions were to pave way for the burial….,.

They did not make a report to the police, but, were later informed that the deceased's relatives had been arrested as the agreement the parties had reached, that burial would not take place before the beasts arrived, was an offence.

He said that the deceased's body had been left by a kombi and another black car, but he did not know who exactly left the corpse.

He then said that: “we did not volunteer to pay because we had nothing; we all wanted to please our inlaws with the things we did not have.”…,.

The second appellant, in his cross-examination of this witness, asked if whether the witness came with the police, they were pressurised or ill-treated, to which the witness replied in the negative.

The cross examination of this witness, by the second appellant, shows that he was part and parcel of the crew that discussed the issue of payment prior to the deceased being buried as he asked such questions as:

“Q: Does that not show that we were understanding each other?

Q: Did you not request us to bring our daughter?”

The second State witness, Mukungunugwa Esau, told the court, that, Accused Two, who is the appellant, was the spokesperson for the group and that they had said they wanted to see payment first before burial….,.

The prosecutor, in examination in chief, asked him the following question:

“Q: What were the consequences if you paid nothing?

A: The deceased was not going to be buried.”

This witness further told the court that:

“We did not voluntarily pay them. If that was the case, the deceased should have been buried on a Wednesday.”

Accused Two (who is the second appellant), in cross-examination of this witness, asked the following question:

“Q: Is it correct that we forced you to pay?

A: Yes. This is because you gave a condition that we have to pay before burial takes place.”

Samuel Munyuki told the court that Accused Two (who is the second appellant in this case) came with a commuter omnibus and another black car - they were carrying the deceased.

He further continued, that, the accused persons had a group of about fifteen with them and that four people carried the corpse and left it on the passage, covered with a metal sheet.

He also said that they then came to his homestead carrying an infant that was left behind by the deceased and that the three accused persons were part of this group.

Under cross-examination by the second accused person (who is the second appellant) the witness was adamant that he had seen the second appellant and, that, in fact, he knew him well and that he is a police officer who he came to know when he was staying at Ross Camp in Bulawayo. He also confirmed that they had met before at Madamombe Township. He confirmed that he saw the three dumping the corpse (including the second appellant).

Gracious Hwera was the next State witness and she told the court that she saw Accused One and Two ferrying the corpse from the kombi. She told the court that the small vehicle was being driven by Accused Two who is the second appellant.

Nothing much turned on the cross-examination of this witness by the second appellant.

Although Onias Machida, the next State witness, seemed to be hostile, he, nonetheless, confirmed that the beasts arrived before the corpse and also that the deceased's body had gone bad.

Joshua Chigova, another hostile witness, told the court that the burial occurred at 11pm.

From the aforestated contents of the court record, it is clear that the deceased's body was taken to the Chigombes and left there. It is also clear that payment was a condition for the burial to take place, causing the Chigombes to run around and put together, from different relatives, beasts and some money so as to please their in-laws.

It is also clear, that, the second appellant was part and parcel of this whole transaction and that he was present at all material times. It is also evident, that, he championed the negotiations that were held to the effect that payment should be made upfront prior to burial.

In our view, the essential elements of the offence of extortion, as defined in section 134(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], were satisfied by the facts of this case, as against the second appellant, beyond any reasonable doubt.

We say so because section 134(2) of the Criminal Law (Codification and Reform) Act gives two series of conduct that constitute extortion;

(i) Its either the accused deposits a corpse in premises occupied by another; OR

(ii) Hinders OR prevents the burial of the deceased person's body so as to induce payment.

The action of depositing the corpse to induce payment prior to burial is in itself extortion. Also, the action of hindering burial so as to induce payment is also extortion.

Also, the action of preventing burial so as to induce payment is also extortion.

Not only did the appellant partake in the deposit of the corpse, as per the State witnesses testimony, but, he also hindered or prevented burial prior to payment as he clearly was heading the delegation that did the payment negotiations prior to burial.

Aynos Chigombe and Esau Mukungunugwa told the court, clearly, that, they did not pay voluntarily and that they did not even have the beasts and cash demanded, but that they had to pay to pave way for the burial.

There is no volition here; whatever “agreement” was reached under such circumstances is no agreement at all.

The Chigombes had a corpse dumped at their homestead; they had to comply with the conditions that were set by the Mhosvas prior to the burial; what choice did they have? What freedom did they have?

None.

It is our finding, that, the second appellant, and others, by conduct, did cause the Chigombes to comply with their demands through pressure.

Pressure can be by conduct.

The conduct of dumping the corpse, in itself, would pressurize the Chigombes into action. The condition that payment had to be made prior to burial did exert pressure on the Chigombes.

It is accordingly our view, that, all the essential elements of the offence of extortion, as defined in section 134(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were met by the evidence on record - even as against the second appellant.

It is for these reasons that we did not accept the concessions made by the State counsel as we were of the view that they were not properly made.

The sentence given does not warrant any intervention by this court.

We accordingly dismiss the appeal in its entirety.

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

The accused, who is a female juvenile aged 17 years, appeared in this court on a charge of murder.The State alleged, that, on 4 January 2014, and at B17 Turkmine Compound, Inyathi, in the Province of Matabeleland North, the accused wrongfully, unlawfully, and intentionally killed and murdered Polite Muduneko, a ...

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

This matter proceeded on the basis of a Statement of Agreed Facts after the accused, who was facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], pleaded guilty to the charge of contravening section 49 of the same Act relating to the charge of culpable homicide.

This is a bad case of domestic violence which resulted in a fatality wherein the thirty-three year old wife died at the vicious hands of her thirty-six year old husband.

The brief and agreed facts are as follows;

Both the now deceased and the accused were residing in Nyamayevhu Village, Chief Nyajena, Masvingo and were wife and husband respectively. In fact, the accused was in a polygamous marriage with the now deceased, Molline Ellias, as the senior wife and one Alice Ellias as the junior wife. Each of the wives has three minor children born out of the marriage. They all resided at the same homestead.

On 15 July 2018, the accused arrived home from a beer drink. He was confronted by the now deceased over the proceeds of a bovine the accused had sold and squandered the money. The accused would have none of that inquiry and resorted to brutal violence.

The accused proceeded to drag the now deceased from home.

At some place, away from the prying eyes of other family members, the accused brutally assaulted the now deceased with switches. As a result, the now deceased sustained bruises on lower limbs and face, haematoma on left temporal area, and bled from the left ear. Her neck was hypermobile as a result of assault.

The now deceased collapsed and the accused called the junior wife, Allice Ellias, to ferry the now deceased back home.

At home, the accused tried to resuscitate the now deceased with the help of Allice Ellias - to no avail.

The now deceased passed on that same night and the accused fled from home only to be arrested some days after.

As per the post mortem report, the now deceased died from the injuries inflicted upon her resulting in the head injury and fracture of the cervical spine.

Indeed, this is a borderline case between the offence of murder with constructive intent and that of culpable homicide.

In assessing the appropriate sentence, we have considered submissions made by both counsel.

In mitigation, we have taken into account the accused's personal circumstances. As already pointed out, the accused had two wives and six minor children. As he is unemployed, the family survives on his manual labour and has no meaningful savings. As at now, he only owns one donkey and a scotch cart.
His family would be greatly prejudiced as a result of his incarceration.

We were advised that the accused suffers from chronic pain arising from a hip problem where he was injured while employed by Triangle Limited. The severity of this injury could not be ascertained as no further medical details were availed.

It is in the accused's favour that he has no previous criminal record. We are therefore inclined to exercise some leniency with the hope that he would reform and desist from further crime.

This matter has been finalised in a very short time simply because the accused decided to accept his wrongful conduct. A plea of guilty should therefore be seriously considered as a mitigatory factor.

This matter had been set for two days but was finalised within a few minutes. The witnesses who were present were excused and saved the trauma of facing the accused while testifying as most of them are the accused's relatives; like his brother, son, and second wife. The scarce State resources have also not been wasted.

For all these reasons, we are obliged to reduce whatever sentence we are inclined to impose and/or to suspend part of the overall sentence to give effect to the plea of guilty.

The accused has suffered from a pre-trial incarceration of six months and has not been granted bail pending trial.

While in custody, the now deceased's relatives caused the accused's relatives to surrender some of the accused's assets as compensation. These included nine cattle, twelve goats, four bales of cotton, two (2) tonnes of maize and R5,000.

While this can never be compared to the loss of life, we cannot close our eyes to the fact that the accused has somehow atoned for his criminal conduct.

Indeed, the accused, through counsel, profusely apologised for his conduct.

It is worth noting, that, the accused shall forever live with the stigma that he is responsible for the demise of his wife. Worse still, he will have to explain this also to the children he had with the now deceased.

It is however unfortunate and very saddening that many couples are losing their lives at the hands of their spouses who are expected not only to love them but to protect them. The sanctity of human life can never be over-emphasised and human blood is sacred.

Another worrying issue is that such cases are very prevalent hence the need for deterrent sentences if we are to tame this tide.

Domestic violence should not be condoned at all.

This explains why the State has specifically enacted the Domestic Violence Act [Chapter 5:16] to specifically address this scourge.

The dispute in this matter was minor and could have been amicably resolved. In fact, the accused is the one who was at fault as he had squandered the money realized from disposal of a family asset. The now deceased, being a responsible wife and mother, was entitled to question the accused and rebuke him for his selfish conduct. The now deceased should not therefore have been battered and lose her life for this.

It is aggravating that the assault itself was indiscriminate and brutal.

The now deceased was injured on the head, limbs, and her cervical spine was broken. Severe force was therefore exerted against this defenceless housewife. The accused's degree of negligence is clearly very high. This elevates the accused's moral blameworthiness.

Despite the mitigatory factors alluded to, the accused deserves a fairly lengthy custodial sentence.

In the result, the accused is sentenced as follows;

“Ten years imprisonment of which two years imprisonment is suspended for five years on condition the accused does not within that period commit any offence involving the use of violence upon the person of another and for which the accused is sentenced to a term of imprisonment without the option of a fine.

The effective sentence is eight years imprisonment.”

CCC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicant sought an order in terms of the draft. The applicant and the fourth respondent (the Prosecutor General) consent to an order of the Court in terms of the draft order, as amended.

The third respondent's position (the Commissioner General of Police, Zimbabwe Republic Police) is that he will abide by the decision of the Court.

The first and second respondents (Sergeant Chacha and the Zimbabwe Anti-Corruption Commission) persist in their opposition to the granting of the original draft order and the order by consent.

When asked by the Court to provide the legal basis for their attitude, they were not able to advance any legal basis for their continued opposition to the granting of the order consented to by the applicant and the fourth respondent.

This quite clearly evinces an attitude of: “Why be difficult when one can be impossible?”

The papers before the Court clearly reveal that there is a real possibility that due process was not complied with in the handling of this matter.

In the light of that, the concession by the Prosecutor-General is based on sound legal considerations in this matter.

Quite clearly, a definitive decision on whether or not there was failure of due process in the handling of this matter can only be determined by the Constitutional Court, as opposed to a Judge sitting in Chambers. It is for the Constitutional Court, if it so finds that there were procedural failures of due process in this matter, to decide what remedies are available to the applicant.

The first and second respondents have no locus standi to drive this process forward without the fourth respondent, who is the dominus litis in all criminal prosecutions. Their continued and persistent opposition to the application is driven by something other than legal considerations.

I accordingly grant an order in terms of the consent draft order between the applicant and the fourth respondent. The consent draft order reads as follows:

“1. The Registrar is directed to set the matter down for hearing on an urgent basis.

2. Pending the determination of the case action in case no. CCZ73/2016, the criminal proceedings envisaged against the applicant, in terms of the charges levelled against him by the first respondent, are stayed.”

The timetable for the set down of the main Court application will be agreed between the applicant and the fourth respondent in consultation with the Registrar of this Court.

The applicant and the fourth respondent have now agreed on the timetable, and the agreed timetable is hereto attached.

“AGREED TIMETABLE FOR THE SET DOWN OF THE MAIN APPLICATION

1. The respondents shall file and serve their notices of opposition by 15 November 2016.

2. The applicant is to file an answering affidavit by 18 November 2016.

3. The applicant is to file and serve heads of argument by 25 November 2016.

4. The respondents shall file their heads of argument by 2 December 2016.

5. The Registrar is to set the matter down for hearing on the first available date thereafter.

6. Should any party find the need to file supplementary heads of argument, the same shall be filed not later than four days before the date of set down.”

Costs will be costs in the cause.

HMT01-20 : STATE vs GEORGE PFUMBWA
Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and RAJA

The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the State alleged, that, during the period between 18 and 19 August 2018, and at Plot 47 Zunidza Ressettlement, Nyazura, the accused unlawfully caused the death of Patricia Makoni by assaulting her all over the body using an un-identified object intending to kill her, or realising 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 resulting in injuries from which the said Patricia Makoni died.

The accused admitted to causing the deceased's death but qualified his admission by stating, that, he was mentally challenged when he committed the offence.

We hence entered a plea of Not Guilty to the charge of murder.

The State and the defence produced a Statement of Agreed Facts which was admitted by this court and marked Annexure “A”.

According to the Statement of Agreed Facts, the accused is a male adult who resides at Plot 47 Zunidza Resettlement Area, Chief Makoni, Nyazura. The deceased, Patricia Makoni, was a female adult who resided at the same address with that of the accused - she was the accused's wife.

During the period between18 and 19 August 2018, at the said Plot 47 Zunidza Resettlement Area, the accused assaulted the deceased all over the body using an identified object. The deceased died on the spot.

On 23 August 2018, Dr. Aisa Serrano Gomez carried out a post mortem examination of the deceased's body and concluded that the cause of death was due to:

(i) Hypovolemic shock;

(ii) Severe haematoma in both thighs; and

(iii) Multiple injuries and contusions.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself, such that he lacked criminal responsibility. Dr. P. Mavunganidze, a psychiatrist, formulated the expert opinion that the accused was mentally challenged at the time of the alleged offence, and further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following exhibits by consent of the defence:

(i) The psychiatrist report, exhibit 1.

(ii) Post-mortem report, exhibit 2.

Having looked at the evidence led, and exhibits produced by the State, and further looking at the Statement of Agreed Facts, we are of the agreed view that this is a suitable case for the return of a special verdict to the effect that the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:02] the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

HMT05-20 : TELLMORE MANWERE and SEBASTINE TANAKA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellants were convicted and sentenced for contravention of section 78(1) of the Forest Act [Chapter 19:05]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from the Forestry Commission of Zimbabwe.The appellants were sentenced to 24 months imprisonment of which ...

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

HMT30-19 : THE STATE vs JONES GUVHEYA
Ruled By: MUZENDA J and ASSESSORS: SANA and CHAGONDA

The accused was arraigned before us on a charge of murder and attempted murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged, that, on 20 December 2017, and at Guvheya homestead, Nyatsanza Village, Chief Mutasa, the accused unlawfully caused the death of Eugenia Guvheya by assaulting her with an axe handle all over the body intending to kill her 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 thereby causing severe injuries from which the said Eugenia Guvheya died.

On the second Count, it is alleged, that, on the same fateful date, the accused unlawfully attempted to cause the death of Christina Chidhakwa by assaulting her with an axe on the left side of the head thereby causing severe injury from which the said Christina Chidhakwa could have died.

When the two (2) charges were put to the accused, he indicated to court that he admits what happened but that it occurred when he was mentally challenged. As a result, pleas of not guilty were entered.

The State and defence counsel advised the court that they had taken a position informed by the nature of the accused's plea and the affidavit of Dr Patience Mavunganidze, a psychiatrist, to proceed in terms of section 29 of the Mental Health Act [Chapter 15:12].

The affidavit of Dr P Mavunganidze was tendered as evidence and was accepted by the court as exhibit 1 by consent.

A statement of agreed facts was tendered as an exhibit, it summarises the events as follows:

On 20 December 2017, at Guvheya homestead, Nyatsanza Village, Chief Mutasa, the accused assaulted the deceased with an axe handle all over the body. The deceased sustained severe injuries which caused her death.

The accused went on and attempted to cause the death of Christina Chidhakwa by assaulting her with an axe on the left side of the head thereby causing severe injuries from which the said Christina Chidhakwa could have died.

Christina Chidhakwa was rushed to Bonda Mission Hospital for treatment and a medical report was compiled.

The deceased's body was conveyed to Parirenyatwa Hospital Mortuary where a post-mortem examination was conducted by Dr Roberto Trecu. He concluded, that, the cause of death was due to -

(a) Traumatic shock;

(b) Spine and ribs fractures haemoperitaemic;

(c) Multiple traumas due to assault.

At the time of the commission of the offence, the accused was mentally disordered and unable to control himself such that he lacked criminal responsibility.

The account given in the summary of the State case reflects a horrendous, unprovoked assault consistent with a mental disorder in view of the fact, that, the deceased was the accused person's grandmother.

The complainant, Christina Chidhakwa, is her mother.

The State further produced the following, by consent of the defence counsel:

(i) Post mortem report.

(ii) Medical report.

(iii) Certificates of weight.

(iv) Sketch plan.

(v) Axe handle and the axe.

Given the Statement of Agreed Facts, the psychiatrist medical evidence, and the circumstances under which the offence was committed, the court agreed with the State and defence counsels that the matter be handled in terms of the Mental Health Act.

The circumstances call for the return of a special verdict of Not Guilty because of insanity.

It was also agreed between the State and the defence, that, the accused still requires management, treatment, and rehabilitation; and, in our view, it would be improper to prematurely release him.

Institutionalisation of the accused is ideal for his recovery.

Accordingly, it is ordered that:

(a) Accused is found Not Guilty because of insanity.

(b) The accused be returned to prison for transfer to Chikurubi Psychiatric Unit or such other appropriate institution for treatment and management until discharge therefrom by a competent body.

HMT44-19 : NDIKIYANA MUGADHUYI vs THE STATE
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention, that, on and at Canlebury Farm, Chief Mutasa, the accused unlawfully caused the death of Diana Sithole by assaulting her with an unknown object on the forehead and face intending to kill her or realising 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 resulting in the injuries from which Diana Sithole died.

Both defence and State counsel proposed that we proceed with the matter in terms of the Mental Health Act.

Their decision was informed by the medical evidence as expressed by Dr Patience Mavunganidze who examined the accused and compiled an affidavit in which she opinioned, that, at the time of commission of the offence, the accused was mentally disordered.

The doctor further gave opinion, that, after the accused's admission and treatment for mental illness he was now fit to stand trial as he is now of a sound mind and able to appreciate the criminal proceedings.

The State and defence counsel prepared a Statement of Agreed Facts which outlined how the accused, on the day in question, the fateful day, assaulted the deceased on the head and face.

From the summary and Statement of Agreed Facts, the attack was an unprovoked and horrendous one. That manner of attack also informed the State and defence counsel's decision to proceed with the matter in terms of the Mental Health Act.

We found no basis not to agree with the State and defence's informed decision and thus proceeded with the matter in terms of section 29 of the Mental Health Act [Chapter 15:12].

The offence of murder, which the accused is charged of, consists of the actus reas and mens rea.

The actions of physically assaulting are not in contention, but, the intention cannot be proved where it is a fact that the accused was mentally disordered and therefore was incapable of formulating the requisite intention.

The essential elements would consist of unlawful and intentional killing.

The requisite intention is absent because of the mental disorder which the accused suffered at the time of the commission of the offence.

Accordingly, as prayed for by both the State and defence counsel, we return a special verdict of not guilty by reason of insanity.

Both counsels have recommended, that, the accused still requires further management and care and that both his parents are late, as such, there is no one to assist him till he fully recovers.

It is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi psychiatric unit, or any other psychiatric unit, for further management till released by a competent tribunal in terms of the law.

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA
Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

Both accused appeared before the court facing murder allegations as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 12 October 2015, at around 0300 hours, and at Chemushowe Business Centre, Chief Chitsunge, Buhera, the two accused persons interchangeably assaulted the now deceased using switches all over the body several times. The deceased sustained serious injuries from which he died.

The body was examined by Doctor Tendayi Mutsvayi who concluded that cause of death was haemathorax (in simple terms, collection of blood between chest walls and lungs due to blunt trauma causing shock to the body).

Both accused pleaded not guilty to the charge.

The first accused denied assaulting the deceased with an intention to kill the latter. He admitted assaulting the deceased while in the company of the second accused and admitted his conduct was negligent and thus proffered a plea of guilty to culpable homicide.

The second accused denied assaulting the deceased although he was at the scene. He blamed Accused 1 for assaulting and occasioning the death of the deceased.

The State adduced the following evidence:

(i) The post-mortem report by Doctor Tendayi Mutsvayi outlining the cause of death, exhibit 1, by consent

(ii) The first accused's confirmed warned and cautioned statement, exhibit 2, by consent;

(iii) The sketch plan of the general layout of the scene, exhibit 3, by consent;

(iv) Certificate of weight of sticks, exhibit 4 and 4(a) and bundle of sticks, exhibit, 5 by consent.

Fanuel Muchengeti gave oral evidence while the rest of the witnesses, namely, Joyce Masunda, Mateya Tawanda Patson, Sophia Dhenya, Lloyd Jonhera, George Chematumba, Timothy Kapesu, Tendayi Mutsvayi and Marazi Liberty's evidence was formerly admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Fanuel Muchengeti was apparently the only eye witness.

His evidence was to the effect, that, he witnessed both the accused assault the deceased with switches - especially at the front of the second accused's shop. The witness, who was an employee of the second accused, told the court, that, he proceeded to raise alarm with the second accused's wife, Joyce Masunda, the second State witness.

According to the witness, Fanuel Muchengeti, the deceased was now lying down when the second accused's wife came and restrained her husband.

The witness also took away the stick which Accused 2 was holding as he restrained further assaults by switches.

The witness told the court, that, the switches used were plucked from nearby trees.

He later heard that the deceased had passed on behind a grinding mill at the same shopping centre.

The assaults were perpetrated in the early morning hours, around 0300 hours, and he learnt of the death around 1000am on the same day.

The witness appeared to have been shocked by the events of the day on question as he appeared to be in a state of fright when he testified on the actual assault and eventual death. The fear, however, did not cloud his evidence as clearly what prompted him to go and call the second accused's wife was the attack on the deceased.

His evidence, in so far as the two accused both assaulted the deceased, tallied with the first accused's version to a great extent.

The witness generally gave his evidence in a straight forward manner. He was economical with detail but was sincere with the court that both the accused assaulted the deceased who was very drunk compared to the two accused persons.

The first accused maintained his plea of guilty to culpable homicide.

He pointed out that Accused 2 alerted him that he suspected the deceased was a thief who wanted to steal from him. He was invited to assist in handling the thief and he responded and assaulted the deceased with switches.

According to the first accused, the second accused also assaulted the deceased with switches tendered as exhibits in court.

The first accused, as outlined in his confirmed warned and cautioned statement, Defence Outline and evidence in chief was consistent in his narration of what transpired on the fateful day.

The first accused, together with Accused 2, suspected that the deceased wanted to enter into the second accused's shop to steal hence they unleashed the assaults on him causing injuries from which the deceased passed on.

The first accused was generally viewed as being genuine with the court given the manner he testified. He was candid with the court.

The second accused was adamant that he did not assault the deceased but that it was the first accused who assaulted the deceased.

He stated that he was, throughout the assault, not involved at all.

Despite this denial, it was clear the second accused, as the shop owner, had more to protect and could not fold his arms on a suspected thief.

In fact, during cross examination by both counsel for the first accused and the State, the second accused was exposed as being economical with the truth. He was exposed as a man bent on exploiting the economically weaker for his own benefit.

He portrayed the first accused as an overzealous, violent person. He sought, unconvincingly, to portray himself as an innocent bystander while at the same time admitting that he suspected that the deceased was a thief.

The second accused was holding a switch when his wife arrived.

He accepted that the sticks produced in court were used to assault the deceased by Accused 1 and that the other three (3) sticks he did not see them being used.

He was exposed as an untruthful witness for clearly he also used switches to assault the deceased.

The sticks he said he did not observe Accused 1 use are sticks he used to assault the deceased.

His answer, that, he did not observe them being used, was a flimsy excuse for not telling the court his role in the assault.

Generally, the second accused fared badly under cross-examination. He presented an unbelievable account of events which exposed him as a stranger to the world of truth.

The denial by Accused 2 was exposed as merely designed to mislead the court.

Moreso, when one considers that the assault of the deceased only stopped after the intervention of Accused 2's wife when she retorted words to the effect, that, the accused should stop so as to avoid inviting an avenging spirit on their family.

The first State witness's evidence was very clear on both the accused's participation in assaulting the deceased and we found no reason why he would falsely incriminate the second accused.

At the close of both the State and defence cases it was clear, that, on the fateful morning at Chemushore Business Centre, Chitsunge, Buhera the deceased succumbed to assault-induced injuries and died.

Both accused persons participated in assaulting the deceased using switches thereby causing serious injuries.

There is apparent evidence that both accused persons are liable for causing injuries from which the deceased died.

The question that has to be determined, given the charge of murder the accused are facing, is as regards the degree of liability.

It is settled, murder consists of both the unlawful and intentional killing of another.

In their closing submissions, the State and defence counsels correctly assessed, that, from the circumstances of this matter, and evidence adduced, the accused persons cannot be said to have set out with an aim to kill the deceased and proceeded to achieve the goal.

Given the nature of sticks used in assaulting the deceased, one cannot deduce that death was substantially certain.

To that extent, therefore, the accused persons cannot be held liable for murder with actual intention.

See S v Lloyd Mukukuzi and Another HH577-17 and also Mungwanda v S SC19-02 on the definition of actual and legal intention.

Having discounted murder with actual intention, the second question is whether or not the State has proved, beyond reasonable doubt, that, the accused unlawfully and with legal intention caused the death of the deceased.

The question is whether the accused subjectively foresaw the possibility of his act causing death and was reckless of such result.

If, from the circumstances, the accused has the dolus eventualis, then, they should be found liable for murder with legal or constructive intention. The legal intention emanating from subjective foresight, just like any other factual issue, may be proved by inference.

In this case, both accused interchangeably struck the deceased severally with switches plucked from nearby trees. The accused unreasonably suspected the deceased, a person they were drinking with, to be a thief. They sought to chastise the suspected thief by assaulting him with switches.

Going by the manner of assault, and the smallness of the switches used, even though the assault was prolonged one cannot infer that the accused foresaw that death would ensue and foresaw that there was a real risk or possibility that death would occur.

In this case, the accused cannot be convicted of murder with legal intention: see S v Mema HB143-13.

It remains a fact that the accused assaulted the deceased occasioning injuries from which he died.

The next question is: would a reasonable person in the circumstances which the accused found themselves in have realized that death may result from their conduct and persisted with that conduct?

If the answer is in the affirmative, then, the accused should be held liable of culpable homicide.

In this case, the accused, severally and interchangeably, assaulted the deceased using sticks indiscriminately. The deceased fell to the ground and was not retaliating in any manner. The assault caused injuries around the pleural cavity occasioning accumulation of blood leading to the fatal results.

Considering the deceased's posture upon being assaulted, would a reasonable person in the circumstances of the accused have realised that death may result from his conduct?

In this case, when the accused persons continuously, for a prolonged period, assaulted the helpless deceased, they were negligent in failing to realize that serious injury or death may result from their conduct.

The facts of this case are indeed similar to the circumstances of the case of State v Gumbo HB19-18.

In State v Gumbo HB19-18 the accused, who used sticks to assault the deceased all over the body, was convicted of culpable homicide.

Clearly, as in this case, the nature of the sticks used cannot be viewed as lethal or life-threatening in the context of death being substantially certain, but, teaming up to assault, several times, a defenceless person is certainly carelessness on the part of the accused.

A reasonable man in the circumstances of the accused would have realised that serious injuries or death may result from their conduct.

The first accused admitted to culpable homicide.

Accordingly, both accused are found not guilty of murder and are found guilty of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act.

HMT51-19 : THE STATE vs VIOLET KUDOMA
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and CHIPERE

The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 24 June 2017, at Kanyangira Village, Chief Makoni, Rusape, the accused unlawfully caused the death of Emily Kudoma by striking her with two bricks on the head, twice, intending to kill her or realising that there was a real risk or possibility that her conduct might cause death and continued to engage in that conduct despite the risk or possibility resulting in injuries from which Emily Kudoma died.

The brief facts informing the charge are that the deceased and the accused were mother and daughter, respectively. They were staying together at Kanyangira Village.

On 24 June 2017, the accused struck the deceased with two half bricks, on the head, leading to the deceased sustaining head injuries which caused her death.

The State and defence counsel prepared a Statement of Agreed Facts in which they lay out how the accused struck the deceased.

The Statement of Agreed Facts revealed, that, at the time of the commission of the offence the accused was mentally disordered and thus unable to control herself such that she lacked criminal responsibility.

Both counsels proposed that the matter proceeds in terms of the Mental Health Act [Chapter 15:12] and sought a prayer of a special verdict of Not Guilty by reason of insanity to be considered.

The affidavit of evidence by Dr Patience Mavunganidze, a medical practitioner and psychiatrist, was tendered as exhibit 5 by consent.

The doctor expressed opinion, that, at the time of the commission of the office, the accused suffered mental disorder which made her unable to appreciate the wrongfulness or otherwise of her actions. The doctor further opinioned, that, after undergoing treatment and management, the accused was fit to stand trial.

Also tendered in evidence was the post mortem report, exhibit 1, refers by Doctor Thomas Nyamudya who concluded that cause of death was intracranial haemorrhage.

The certificate of weight of the bricks used to strike the deceased, weighing 4,35kg, was tendered as exhibit 3 by consent, and also the bricks tendered as exhibit 4.

The sketch plan showing the general layout of the scene of crime, as observed by attending police details, through indications from witnesses, was also adduced in evidence as exhibit 2 by consent.

Having considered the evidence adduced, and the Statement of Agreed Facts, we reached a conclusion, that, the accused was mentally challenged at the time of the alleged commission of the offence. She could thus not have the capacity to appreciate and formulate the requisite intention to commit murder.

In the premises, a special verdict of not guilty by reason of insanity has to be returned.

The defence and State counsel made further submissions as regards the fate of the accused after the special verdict.

We must comment, that, the fate of an accused after the special verdict, in terms of the Mental Health Act [Chapter 15:12], is to be considered. The consideration of the fate, after the special verdict, is, in our view, important as an administrative measure to ensure protection of not only the accused but the community at large.

In this case, counsel for the accused, with the concurrence of the State counsel, urged the court to consider retention of the accused to a psychiatric unit for further management and treatment as there is no one readily available to accept and assist the accused with regular intake of her medicine. The accused's deceased mother was the guardian of the accused.

In the circumstances, it is desirable that, for the accused and the community protection, the accused gets special assistance at the appropriate institution.

Accordingly, it is ordered that:

1. The accused is not guilty by reason of insanity.

2. The accused be returned to Chikurubi Psychiatric Unit, or any other such suitable institution, for further management and treatment till she is released by a competent tribunal in terms of the law.

HMT52-19 : STATE vs PATRICK MAFAKE
Ruled By: MUZENDA J and ASSESSORS: MAWONEKE and CHIPERE

The accused was charged with the crime of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where the State alleges, that, on 29 May 2017, at Dzingire Village, Chief Muusha, Chimanimani, the accused unlawfully caused the death of Loyce Mafake by assaulting her several times all over the body using a log intending to kill her resulting in injuries on the chin, left cheek, and on the side of the left eye from which she died.

The accused pleaded guilty, but, a plea of not guilty was entered; he added and qualified the plea by stating that he was not mentally stable when he committed the offence.

The State and defence prepared and produced a Statement of Agreed Facts which were admitted by the court and labelled exhibit 1.

According to the agreed facts, the accused is a male adult who resides at Dzingire Village, Chief Muusha Chimanimani in Manicaland Province. The deceased, Loyce Mafake, was his mother residing with the accused during her lifetime.

On 29 May 2017, the accused assaulted the deceased with a log all over the body resulting in the deceased sustaining severe injuries on the chin, left cheek, and on the side of the left eye.

The deceased died on the spot.

Her body was conveyed to Chipinge mortuary. On 31 May 2017, Doctor K. P Guvheya carried out a post-mortem examination and concluded that the cause of death was due to basal skull fracture due to severe head injury. He compiled a post mortem report.

At the time of the commission of the offence, the accused person was mentally disordered and unable to control himself such that he lacked criminal responsibility.

The account given in the summary of the State case reflects a horrendous, unprovoked assault consistent with mental incapacitation in view of the fact that the deceased was the accused's mother.

Doctor Patience Mavunganidze, a psychiatrist, formulated the expert opinion, that, the accused was mentally challenged at the time of the alleged offence; she further pointed out, that, the accused is now fit to stand trial.

The State proceeded to produce the following as exhibits by the consent of the defence:

(a) The psychiatric report, marked exhibit 2.

(b) Postmortem report No.114363 C, marked exhibit 3.

(c) Weight certificate of the wooden log, marked exhibit 4.

(d) The sketch plan, marked exhibit 5.

(e) The wooden log weighing 1.5kg, marked exhibit 6.

Having looked at all the evidence led and produced by the State and also looking at the position taken by both the State and the defence, we are of the unanimous view, that, this is a suitable case for the return of a special verdict to the effect, that, the accused is not guilty by reason of insanity as contemplated in section 29(2) of the Mental Health Act [Chapter 15:12].

The accused has not yet fully recovered, and, in consultation with the father of the accused, Mr Wilson Mafake, it was also concluded that the accused needs further medical treatment.

Accordingly, the following order is returned:

In terms of section 29(2)(a) of the Mental Health Act [Chapter 15:12], the accused person is committed to Chikurubi Psychiatric Unit until he is discharged by a competent authority.

HMT60-19 : THE STATE vs GEDION DHLIWAYO
Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

The accused pleaded not guilty to a charge of murder as defined in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is alleged, that, on 1 February 2018, and at Plot Number 63 Nafaton Farm, Chipinge, the accused unlawfully caused the death of Nyashadzashe Maphosa by using unknown means and disposed the body, which was later eaten by dogs, intending to kill her 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 resulting in injuries from which the said Nyashadzashe Maphosa died.

The brief facts are that on the day in question, the accused picked the five (5) month old deceased and went away with her to a bush.

The accused used unknown means to kill the deceased and disposed of the body.

The body was eaten by dogs, leaving some body parts which were recovered in an advanced state of decomposition.

On 5 February 2018, the recovered remains were examined by Doctor Joel Tapi who compiled a post mortem report in which the cause of death was indeterminate because of decomposition and missing parts. The postmortem report was tendered as exhibit 2.

Both State and defence counsel proposed that we proceed with the matter in terms of the Mental Health Act [Chapter 15:12].

This decision was informed by the manner the offence was allegedly committed and the medical evidence by Doctor Fungisai Mazhandu, a psychiatrist.

The affidavit of evidence, by Doctor Fungisai Mazhandu, opinioned, that, the accused is now fit to stand trial, but, however, at the time of commission of the offence, the accused was mentally unwell.

The State further adduced evidence, by consent, the sketch plan, exhibit 3, showing the general layout of the scene; the confirmed warned and cautioned statement by the accused, exhibit 4; indications by the accused, exhibit 5; and three (3) photographs of the remains of the deceased, exhibit 6.

From the Statement of Agreed Facts compiled by both counsels, the accused, who was mentally disordered, took his five (5) month old child to the bush. The accused used unknown means to kill the deceased and then disposed of the body.

The charge the accused is facing consists of both the unlawful conduct and intentional killing of another.

In light of the medical evidence, the accused was thus not capable of formulating an intention to kill.

Accordingly, therefore, as prayed by counsels, this is a case in which the circumstances cry loud for returning of a special verdict of not guilty by reason of insanity.

The accused is stable, and, both counsels have submitted that he is not a danger to himself or the community. The relatives, inclusive of the mother and brother, have expressed willingness to have him released in their custody.

Accordingly, it is ordered that:

1. The accused is not guilty by reason of insanity.

2. By consent, the accused is released in the custody of his biological mother, Mrs Senyani Masvosva Muhlauri and brother, Senyani Admire Dhliwayo.

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Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements

HMT18-18 : THE STATE vs JUDITH MUPELEFURAHA MULUMBA Ruled By: MWAYERA J and ASSESSORS: MAWONEKE and MUDZINGE

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

HMT20-18 : THE STATE vs ROBSON CHILANGA and SAINI ASIDI Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HB126-17 : THE STATE vs LANDELANI TSHUMA Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

SC67-20 : PROSECUTOR GENERAL OF ZIMBABWE vs INTRATEK ZIMBABWE PL and WICKNELL CHIVAYO and L NCUBE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O. Ruled By: PATEL JA

HH15-20 : MARY MUBAIWA vs THE STATE Ruled By: KWENDA J

HH74-18 : THE PROSECUTOR GENERAL OF ZIMBABWE vs SHMUEL KLEIN Ruled By: CHITAPI J and MUSHORE J

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

CCC03-15 : BERNARD MANYARA vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE Ruled By: MATHONSI J

HB100-17 : ELIZABETH SHAVA vs PRIMROSE MAGOMORE N.O. and NATIONAL PROSECUTING AUTHORITY Ruled By: MATHONSI J

HB08-09 : LUNGISANI DUBE vs THE STATE Ruled By: CHEDA J

HH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL Ruled By: MATHONSI J

HH256-21 : IGNATIUS CHOMBO vs THE STATE Ruled By: CHATUKUTA J

SC23-21 : SAMUEL UNDENGE vs THE STATE Ruled By: UCHENA JA

HB22-15 : THE STATE vs FREDDY SAVANHU Ruled By: KAMOCHA J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB26-20 : THE STATE vs BENJAMIN MPANDUKI Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB67-15 : THE STATE vs QINISO SIBANDA Ruled By: MAKONESE J

HB127-17 : THE STATE vs GLADYS MUTOPA Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HB129-17 : THE STATE vs AGNES CHIPIKA Ruled By: MAKONESE J

HH133-17 : THE STATE vs NAISON CHAYAMBUKA and MOSES MUSUSA Ruled By: TSANGA J

HH435-16 : THE STATE vs WESTON MOMBESHORA Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

HB119-20 : TINASHE KAMBARAMI vs THE STATE Ruled By: MAKONESE J and MABHIKWA J

CCC05-16 : PITTY MPOFU and SAMUKELISIWE MLILO vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

HB52-15 : LEVISON MHOSVA and TAZVITYA MUDZINGWA and LUCKSON KWANGWARI vs THE STATE Ruled By: KAMOCHA J and MOYO J

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA Ruled By: MAKONESE J

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

CCC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CCC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ

HMT01-20 : STATE vs GEORGE PFUMBWA Ruled By: MUZENDA J and ASSESSORS: MAGOROKOSHO and RAJA

HMT05-20 : TELLMORE MANWERE and SEBASTINE TANAKA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT08-20 : LIKANI SITHOLE vs THE STATE Ruled By: MUZENDA J and MWAYERA J

HMT30-19 : THE STATE vs JONES GUVHEYA Ruled By: MUZENDA J and ASSESSORS: SANA and CHAGONDA

HMT44-19 : NDIKIYANA MUGADHUYI vs THE STATE Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT50-19 : THE STATE vs CRIPS MUPATIKI and MINDLAW MASUNDA Ruled By: MWAYERA J and ASSESSORS: MUDZINGE and MAGOROKOSHO

HMT51-19 : THE STATE vs VIOLET KUDOMA Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and CHIPERE

HMT52-19 : STATE vs PATRICK MAFAKE Ruled By: MUZENDA J and ASSESSORS: MAWONEKE and CHIPERE

HMT60-19 : THE STATE vs GEDION DHLIWAYO Ruled By: MWAYERA J and ASSESSORS: MAGOROKOSHO and MUDZINGE

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