Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

HH185-15 : ITAI MOTSI vs THE STATE
Ruled By: HUNGWE J and BERE J

On 18 May 2012, a team of detectives, led by Detective Inspector Alexander Jachi of the Criminal Investigating Department's Vehicle Theft Squad, investigating some other offences, received a report concerning the appellant and others. That report gave them reasonable cause to believe that they might be able to recover firearms from the appellant. Acting on this piece ...

Acting on this piece of information the team proceeded to Dema. They found the appellant at his uncle's homestead and placed him under arrest. They asked him to take them to his residence which was a single flat-roofed room some 200m away. In the presence of his uncle, a search of the appellant's room yielded a CZ pistol from between the mattress and base bed.

There is dispute as to whether the appellant and his uncle voluntarily signed an acknowledgement of the recovery of the firearm.

This is the pistol handed to Assistant Inspector Innocent Dube on 21 May 2012 by Detective Sergeant Nhokwara. This information was relayed to Detective Sergeant Maigeta (“Maigeta”) who is the investigating officer for the Christon Bank attempted murder report. The appellant and his co-accused were then charged for attempted murder and unlawful possession of firearms….,.

As for the second Count, I am not persuaded by the argument put forward by the appellant. In short, the argument is that he was convicted on the basis of inadmissible evidence.

I disagree.

The evidence shows that the police detectives, upon arresting the appellant, decided to conduct a search of his premises. He indicated the house which was subject of the search. They had no search warrant, but, in terms of section 51(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], the police details were entitled to conduct the search. That section states:

“51 Search and seizure without warrant

(1) A police officer may, without warrant, search any person or container or premises for the purposes of seizing any article referred to in section forty-nine, and, additionally, or alternatively, seize any such article —

(a) If the person concerned consents to the search for, and, additionally, or alternatively, the seizure of the article in question or if a person who may consent to the search of the container or premises consents to such search, and, additionally, or alternatively, the seizure of the article in question; or

(b) If he, on reasonable grounds, believes that —

(i) A warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he applied for one; and

(ii) The delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be.”

See also section 54 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The appellant contends that the police had not properly warned and cautioned him before they asked him to sign the diary in which a “mute confession” in the form of an acknowledgement of the fact of the recovery of the pistol was made.

If I understand this argument, the appellant contests the admissibility of the diary entry by Detective Inspector Alexander Jachi which the court a quo ruled admissible. Even if it were conceded that the procedure required to admit this type of evidence was not strictly followed, I come to the conclusion that the fact of recovery of the pistol is still saved by section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It provides:

“258 Admissibility of facts discovered by means of inadmissible confession

(1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence, notwithstanding that such fact has been discovered and come to the knowledge of the witness who gives evidence respecting it only in consequence of information given by the person under trial in any confession or statement which by law is not admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered and come to the knowledge of the witness against the wish or will of the accused.

The appellant pointed out his residence. A search without warrant followed on the basis that the police had reason to believe that they would recover firearms. (Section 258(2) of the Criminal Procedure and Evidence Act). The search was conducted in his presence. That search yielded a CZ pistol.

The magistrate correctly rejected the claims that police planted the firearm which was recovered. The appellant's witnesses who testified the circumstances surrounding the search at the appellant's residence were correctly ruled unreliable by that court. The fact that the firearm was recovered from the appellant's house is, in my view, by accounts, admissible. Reliance can be placed on the statutory provisions set out above. The irregularity posed by the admission of the police diary cannot, in my view, be said to be so gross as to vitiate the conviction. With or without that piece of evidence, the fact is the pistol was found in appellant's possession. He was, in my view, properly convicted.

In the premises, the appeal against conviction in the second Count fails….,.

1….,.

2….,.

3. The appeal against conviction and sentence in Count 2 is dismissed.

HHH94-12 : ERIC MUSUNDIRE vs OK ZIMBABWE
Ruled By: BERE J

The OK Grand Challenge Jackpot promotion has become an exciting annual national event to many Zimbabweans as it affords many lucky winners a rare opportunity to win various prizes ranging from motor vehicles, residential Stands and an assortment of other items. It is an event which is aggressively advertised both in the print and electronic media. Having responded ...

Having responded to the OK Grand Challenge Jackpot Promotion in 2010, the plaintiff landed himself in trouble. This civil suit is a direct result of the plaintiff's desire to participate in one such a promotion. It caused a nightmare to the plaintiff. Indeed, it earned the plaintiff quite some traumatic experience.

The largely agreed facts in this matter can be summarised as follows:-

The plaintiff is employed as a manager by the Zimbabwe Institute of Public Administration and is based in Darwendale, a few kilometres outside Harare, the capital city of Zimbabwe. His duties entail being in charge of around 100 employees and it is his sole responsibility to oversee the day to day operations of the institute.

In 2010, and pursuant to the irresistible advertisement by the defendant inviting customers to participate in the OK Grand Challenge Jackpot Promotion, the plaintiff went to OK Bazaars Supermarket in Marimba and bought various groceries worth $999=98 as a result of which he got coupons enabling him to participate in the exciting competition.

Exhibit I…, was produced to confirm the transaction made by the plaintiff.

At the conclusion of the OK Grand Challenge Jackpot Promotion, and to be precise, on 9 June 2010, the plaintiff emerged as one of the few lucky winners of the items on offer. The plaintiff's name appeared in the Herald and the Chronicle (two national newspapers) as having won a microwave.

After attending to one or two housekeeping issues with the organizers of the promotion, the plaintiff was confirmed as a winner and invited to attend the prize giving ceremony which was to be held at Rainbow Towers, Zimbabwe on 16 June 2010. Rainbow Towers is one of the leading hotels situated in the capital city of Zimbabwe, Harare. On 16 June 2010 the plaintiff excitedly attended at the Rainbow Towers for the prize-giving ceremony. To demonstrate his excitement in attending the grand occasion the plaintiff went to the Rainbow Towers in the company of his family and some workmates so that they would be witness to his rare exciting moment.

There was a dramatic turn of events at the Rainbow Towers.

The plaintiff was later to regret why he had ever participated in the OK Grand Challenge Jackpot Promotion. The plaintiff, and two of his colleagues (also winners of the OK Grand Challenge Jackpot Promotion), were lured into a car and arrested for having committed fraud in the acquisition of the coupons which they had used in participating in the competition….,.

The plaintiff stated he gathered that this docket had been opened as a result of the report made to Braeside police station by Osborne Tariro Mawere. For the first time, the plaintiff and his co-suspects were advised of the fraud charges allegedly committed against the defendant and accused of having fraudulently acquired competition coupons. The plaintiff protested his innocence to both Osborne Tariro Mawere and the Braeside police officers but to no avail. It was the plaintiff's further testimony that when he told the police and Osborne Tariro Mawere that he had legitimately acquired the coupons, Osborne Tariro Mawere responded by saying that, that would be established later.

For the next four days, the plaintiff and his colleagues were shoved from one police station to the other starting with Braeside Police Station, Ahmed House, and Harare Central Police Station. They were made to endure extremely difficult and painful experiences as they were forced to sleep in squalid conditions, being routinely transferred from Ahmed House to Harare Central Police Station barefooted and in handcuffs. The plaintiff and his colleagues were treated as criminals. To the ordinary onlooker, they were indeed criminals on parade….,.

The plaintiff and his co-accused were only released after Osborne Tariro Mawere (Mawere) had submitted an affidavit which outlined the plaintiff's innocence in the whole exercise.

They were, after all, innocent….,.

Under cross examination, Osborne Tariro Mawere disclosed that other than the 13 years of his work as a Risk and Control Manager for the defendant, he had, prior to his engagement with the defendant, been a senior police officer with the rank of Senior Assistant Commissioner, and well versed in police operations. He said he knew that once he had received an anonymous call concerning the alleged fraud involving competition coupons, it was imperative for him to carry out investigations first.

It was quite revealing that, during cross-examination, the witness conceded that, at the time he masterminded the arrest of the plaintiff, he had himself not carried out investigations on behalf of the defendant.

The witness further told the court, under cross examination, that he was surprised to see the police officers detaining the plaintiff and that he could not remember seeing the plaintiff being handcuffed at the time of his arrest.

Mr Mawere further revealed, under cross-examination, that he had escorted the plaintiff from the podium at Rainbow Towers to where the police were - 200 metres away from where the winners function was being held, transported the plaintiff and the other suspects to Braeside police station using his motor vehicle.

He said it was him personally who conducted the investigations which eventually led to the release of the plaintiff and his co-suspects. He also confirmed that he was present at all times when the plaintiff was being interviewed or questioned by the police.

It was quite revealing that when questioned by the court the witness conceded that he had not acted diligently in rushing to have the plaintiff arrested before carrying out internal investigations not only to verify the so-called tip off from the defendant's informant, the anonymous caller, but to also check on the explanation given by the plaintiff. Mr Mawere conceded that, with the benefit of hindsight, the plaintiff's detention could have been avoided….,.

It was quite clear from the plaintiff's testimony that his misfortune was triggered by the extremely reckless manner in which Osborne Tariro Mawere handled the alleged fraud in the acquisition of coupons for the defendant's business promotion. In the court's view one does not blindly or religiously act on information from an anonymous source without first doing basic or elementary investigations to establish the credibility or otherwise of such a report.

The position of Mr Mawere in this case was compounded by the undeniable fact that Mr Mawere was not a lay person. The evidence showed that he is quite a sophisticated individual. He projected himself as an experienced former police officer who retired from the force holding the rank of a Senior Police Commissioner. In addition, he holds a Bachelor of Commerce in Risk Management, backed by 13 years experience as the Risk and Services Manager for the defendant.

It is further noted that at the time Mr Mawere received information concerning the alleged fraud, he had all the means at his disposal to carry out investigations to verify the correctness or otherwise of such potentially very serious allegations. He chose not to do so, but, to set in motion, and in a meticulous and callous manner, the events leading to the arrest of the plaintiff despite the plaintiff having protested his innocence from the very beginning.

To start with, Mr Mawere invited the plaintiff to the Rainbow Towers under the pretext that he was required to collect his prize won in the competition yet he knew that he was setting a trap for the arrest of the plaintiff. Mr Mawere himself masterminded the arrest of the plaintiff in a typical movie-style, used his motor vehicle to “deposit” the plaintiff at Braeside Police Station. Mr Mawere actively participated in interviewing or questioning the plaintiff. To demonstrate his malice, it is quite significant, that Osborne Tariro Mawere never bothered to question the plaintiff about the alleged fraud before the latter was arrested.

Osborne Tariro Mawere's reckless conduct went beyond maliciously causing the plaintiff's arrest. The uncontroverted evidence was that even before the plaintiff had been brought to the police station Mr Mawere had caused the plaintiff's docket to be opened at Braeside police station. Not only this, but it was also made clear to the plaintiff that he would only be released if Osborne Tariro Mawere brought an affidavit to that effect, and, indeed, it was Osborne Tariro Mawere's affidavit which led the plaintiff to regain his liberty after Osborne Tariro Mawere himself had masterminded the snatching away of that liberty.

I have no doubt in my mind that at the time the police officers detained the plaintiff they had nothing on them to show there was reasonable suspicion that the plaintiff had committed the alleged criminal offence. The plaintiff's case would have been neater if he had jointly sued the police with the defendant.

HMT01-18 : THE STATE vs LUKE MUNGOZA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and CHAGONDA

The State also tendered in evidence the sketch plan, exhibit 2, depicting the scene of crime as indicated by the witnesses and the accused….,. In mitigation, are the circumstances surrounding the commission of the offence. For over a long period the accused had been subjected to harassment, assault and humiliation at the hands of the deceased. On ...

HH558-15 : THE STATE vs BLESSING CHIMBIRAI
Ruled By: BERE J and ASSESSORS: MUSHUKU and DHAURAMANZI

The deceased…, was a police officer based at Bikita Police Station…,.On the fateful day, the deceased gathered that the accused person, who was on the police wanted list, was at Chihowa Bar at Baradzanwa Business Centre. On approaching the accused, the deceased then took the accused outside the bar and ...

HH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

The accused, Madalitso Ranchi, a male adult, was charged with murder in that on the 25th of July 2015, at B37 Beatrice Location, Beatrice he had unlawfully, and with intent to kill, murdered his wife, Pamela Muzondo, or realising that there was a real risk or possibility that death might result, had struck the deceased with an unknown object thereby causing injuries from which the said Pamela Muzondo died.

The accused pleaded not guilty. The essence of his defence was that he never intended to kill the deceased, but had lost control after finding her with a lover.

The State led direct evidence from two persons in its line of witnesses. The direct evidence came from Susan Unati Moyo the deceased's daughter and step-daughter to the accused. Stanford Bonde, the alleged paramour, also gave evidence.

The witnesses whose evidence was accepted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] included that of Laina Muzondo, the mother of the deceased, Ganizani Ranchi, the brother of the accused, Kudakwashe Hwari, a cousin of the deceased, and Dzingarai Brighton Mozorodze, a member of ZRP stationed at CID Beatrice.

The post-mortem report sworn to by Dr Mauricio Gonzalez was also admitted into evidence by consent.

It was not in dispute that the accused had killed the deceased. The core issue for determination at the trial was whether he had indeed done so out of provocation from discovering his wife's infidelity.

The State's evidence

Susan Unati Moyo: She is 11 years old. She told the court that the day in question was a Saturday morning (25th of July 2015), when her mother had been washing plates outside but had not finished. She had also started doing laundry but had not finished when she had been called inside the house by the accused.

She herself was playing outside with her young brother.

Whilst at the sink outside she had heard her mother cry out “maiwee”. She had not seen her mother come out of the house again. Her brother, who was feeling hungry, had gone to knock at the door. The accused had come to the door and had given them $50 to go and purchase food. They had bought biscuits and drinks. They had returned and had eaten outside. Thereafter, the accused had told both of them to go to their grandmother's house with specific instructions that they were to say that they had been sent there by Stanford Bonde. The accused told them that their mother had gone to work and had given them 50 cents to use on their way to their grandmother's. They had arrived towards sunset and she had told her grandmother as instructed to say.

In cross examination, she said she knew Mr Bonde as an elder at their church. He had not been a visitor at their house on either the Friday or the Saturday. She had last seen him at church the previous Sunday.

Stanford Bonde: His evidence was that he knew the deceased as a fellow parishioner at Living Word Citadel. He also knew the accused as the accused was, at one time, the pastor. The accused had later formed his own church after facing fraud charges for the double sale of Stands. He had elected to form his own church rather than face censor by the church.

On the 27th of July 2015, Laina Muzondo, the deceased's mother, had come to his house looking for him. She had stated her grandchildren had come to her house on his instructions and wanted to know if he had seen the deceased on that day that he had instructed the children to come. He had told her that he had not sent the children at all to her and neither had he seen the deceased on the day in question. He had referred her to the accused's mother's house. She had returned with the accused's mother and two of the accused's brothers. They told him that they had gone to the deceased's residence and had broken the door and what they had found had been a letter purportedly written by Pamela to him. He had told them that it was not possible for Pamela to have a written such a letter unless she had lost her mind.

The contents related to his coming to visit her at night on the pretext of going for prayers. The letter also related how she had had to abort his child and yet he was no longer coming to visit.

He told the court that he had never had any relationship with the deceased and therefore found the letter strange and unlikely to have been authored by the deceased. He had told the relatives as much. He had last seen her on the 19th of July 2015 at church.

When shown the letter he had suggested that the police be contacted instead of wasting time.

On the 28th of July he had been summoned to the police station by the police. That same afternoon he had, again, been visited by Laina Muzondo and the deceased's sister who wanted an explanation regarding the letter and if he knew where Pamela was. He had suggested that, for the sake of progress, it would be best to ask the children, in his presence, who had really sent them since he had never done so. They had advised him that they would return as they needed to go to the house to fetch the children's clothes as the children had come to their grandmother's without carrying any clothes.

He had gone to Laina Muzondo's house later that day and Susan Unati Moyo had been called. When asked where her mother had been on that day Susan had narrated the events of that day which have already been captured. She had then also revealed that they had been sent by the accused and his admonition that they were not to reveal that he was around.

They had proceeded thereafter to file another report at the police station. The police had come to his house the following morning and they had gone with him to the deceased's residence together with the accused's brother. As the place had a foul smell, in tracing its source, the police had requested the bed to be lifted. That is where the deceased's body had been found - in a dish. He had also spent that night in detention under investigation but had been subsequently cleared.

As regards the letter, he told the court that the police had established from the accused, once he had come back into the country and had been arrested, that he was the one who had in fact authored the letter from a page taken from his own diary. It had also been established that it was the accused's handwriting. Asked, in cross-examination, whether he had ever visited the accused's house, he explained that he had done so at the time when the accused was still their pastor, when, as a church elder, he and others used to pass through the pastor's house to collect chairs.

Core issues from the admitted evidence

Of significance, from Laina Muzondo's admitted evidence, was that when she had checked with her neighbours, after learning that the deceased had not gone to work on the 28th of July, they confirmed having last seen the deceased on the 25th of July 2015 which was a Saturday.

Of importance, from Ganizani Ranchi's evidence, was that when they went into the house on the 28th of July, after the deceased had failed to show up for work, the only suspicious thing they had found had been the letter purportedly written by the deceased which was then taken by the accused's brother.

From the admitted evidence of Dzingirai Brighton Mazorodze, from the Criminal Investigation Department, was that after the discovery of the body, on 30 July 2015, he had searched the whole house and observed blood stains on the door wall, drops of blood from the door wall on the floor to the bed, and stains of blood on a cardboard box used as a washing basket.

From the admitted evidence of Dr Mauricio Gonzalez was the crucial fact that the deceased had died from haematoma and head trauma due to assault.

The Accused's evidence

The accused narrated how he had returned home on Friday the 24th of July 2015 from Malawi where he had travelled for three weeks to preach. He would go often to Malawi. He had knocked but had received no answer. The door was unlocked and he had opened. He heard voices inside. The children were sleeping. He had proceeded to the bedroom where he had found a half-clad Stanford Bonde sitting on his bed who had his trousers on but had no shirt. His wife wore a short nightie and no panties. Stanford Bonde had tried to talk to him but he had just stared at his wife in disbelief while Stanford Bonde had taken his shirt and had walked out.

He had checked on the floor and observed a used condom. He had asked his wife what had taken place since he loved her very much. She had insisted on asking for forgiveness.

In anger, he had asked her to leave and go to the dining room. She had insisted on explaining herself and that is when he had pushed her hard through the door opening which had no door frames but sharp brick edges. She had hit her forehead and had fallen backwards but facing upwards. She was bleeding.

He had washed the wound using water from a big green tub that his wife kept in the bedroom. He had also removed her night dress intending to take her to hospital. He had dressed her in her underwear, a black skirt and blue T shirt. He had tried to use a towel to stop the haemorrhage but she had continued bleeding. All the while she had groaned in pain before taking her last breath and falling down dead.

He had thought of waking the children but had realized it was not necessary. Thereafter, he had mopped the blood on the floor so that the children would not see it as they were in the habit of coming to the bedroom. He had taken the body and put it in the green tub because he did not want the children to see the body when they woke up the following morning. He had put the green tub under the bed and had slept in the dining room.

The children had woken up the next morning without noticing what had happened. He had told Susan Unati Moyo that her mom had gone to work.

At around 11am, her young brother had come complaining of hunger and that is when he had given them money to go to the shops. When they came back, and had eaten, that is when he had told them to pack their bags and go to their grandmother's house. He admitted telling them to say they had been sent by Stanford Bonde because their grandmother thought he was in Malawi. He had locked the door after their departure and had proceeded to Malawi.

His father had called him in Malawi to say he should come back as something had happened to his wife but had not told him his wife was dead. By then, of his own volition, he had made up his mind to return and turn himself in so the law would take its course.

Upon his return, on the Thursday night, he had been intercepted by armed police on his way home, at around 1am, to tell his parents what had transpired. He had been locked up and forced to write a statement.

On the Saturday he had been taken for indications all the while with the police telling him what to say.

The accused told the court that they would even stomp on his foot when he refused to do their bidding particularly as regards what they wanted him to say with respect to what he had used to assault the deceased. He had refused to sign the documents.

Suffice it to state they were not part of the record.

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

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

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

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

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

Both accused persons pleaded not guilty to the murder charge.

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

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

The Issues

The following are the issues that fall for determination:

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

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

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

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

The Evidence

The State led evidence from six (6) witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The deceased admitted the charge and was taken to court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He said no identification parade was conducted.

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

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

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

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

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

Under cross-examination, he said;

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

Further, in answer to a question, he said;

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

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

The second accused also gave evidence in her defence.

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

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

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

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

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

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

“I witnessed the recording of the statements.”

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

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

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

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

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

Analysis

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

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

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

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

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

This evidence was not challenged by the accused persons.

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

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

(i) Intracranial haemorrhagic.

(ii) Head injury.

(iii) Assault.

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

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

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

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

(d) The deceased was assaulted indiscriminately.

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

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

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

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

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

The question is; who is telling the truth here?

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

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

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

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

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

Also, in evidence in chief, he said;

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

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

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

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

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

Asked how exactly she assisted Accused 1, she said;

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

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

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

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

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

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

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

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

As regards Accused 2, identification is clearly an issue.

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

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

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

The list is not exhaustive.

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

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

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

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

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

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

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

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

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

A.. I did not know their names.

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

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

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

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

“Q. How many assaulted you?

A. Moyo and Mutema.

Q. How did you get to know them?

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

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

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

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

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

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

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

For these reasons, we make the following findings:

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.Persistence in such conduct, despite such foresight.

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

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

5.The absence of actual intent to kill.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

The accused is charged with the murder of Keniard Doro. The indictment charges that on 20 January 2015, and at Hereford Farm, Centenary, the accused, acting with an intent to kill or realizing the real risk or possibility that his actions may result in death, struck the deceased several times all over his body with a knobkerrie thereby inflicting injuries from which the deceased succumbed to his death.

The accused, when asked whether he understood the charge, confirmed that he understood it.

When asked what his plea to the charge was, he said:

“I do admit the charge although I would like to explain further.”

Counsel for the accused stood up and indicated to the court that the plea by the accused did not accord with his instructions. He requested the court for leave to consult with the accused so that he could fully appreciate the accused's position.

The court granted the leave.

Counsel for the accused advised the court that he had taken instructions and explained to the accused the procedural aspects of plea recording. The court then explained the indictment to the accused and the elements of the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused confirmed that he fully understood the explanation of the indictment by the court.

When asked whether he admitted or denied the charge, in the light of the explanation which he had understood, he responded as follows:

“I will deny the charge because there are certain aspects I will agree to and others which I will deny.”

The court recorded a plea of not guilty, which plea was confirmed as according with his instructions by counsel for the accused. The court also recorded the accused's explanation.

The court is required to record the statements so made in terms of section 180(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.

The material facts alleged by the accused in his Defence Outline were as follows;

1. He denied taking part in any active act which led to the death of the deceased whom he did not know in his lifetime - albeit denying that the remains recovered by the police and said to be those of the deceased were not in fact those of the deceased.

2. He was employed by a certain Amos said to be a serving member of the Zimbabwe Republic Police. His duties were to perform household chores at his employer's home in Gokwe.

3. Sometime in early 2015 his employer, Amos Dube, and the employer's relative, one Ngonidzashe Sithole, directed the accused to accompany the two on a business trip.

4. The two, that is Ngonidzashe Sithole and Amos Dube hired a vehicle. The two disabled the driver of the hired vehicle at some remote place leaving the driver alive but taking the vehicle with them. The accused did not assist Ngonidzashe Sithole and Amos Dube in dispossessing the driver of the hired vehicle.

5. He was later on instructed to go to the home of the owner/driver of the vehicle to obtain the vehicle registration book. He openly went to the driver's homestead and left his phone number. He did not suspect that the driver/owner of the vehicle had died.

6. He was sent on errands using the stolen vehicle, as directed, and these errands linked him to the death of the deceased.

7. He alleged heavy assaults upon him by the police and the police refused to look for his employer, Amos Dube and his friend Ngonidzashe Sithole.

8. He denied that the remains of the deceased were found in consequence of his indications but through a search.

9. He concluded his Defence Outline by averring that he would deny accounts inconsistent with his testimony on the events or facts of the matter.

The State opened its case by tendering a post mortem report as an exhibit in terms of section 278(2)(b) of the Criminal Procedure and Evidence Act.

The report pertained to the examination of the remains of a deceased person noted in the report as Keniard Doro Korekore. The remains were examined by Doctor Gonzalez, a legal medicine specialist employed by the Ministry of Health and Child Welfare. He examined the remains on 14 August 2015 at Harare Hospital after they were identified to him by Zimbabwe Republic Police details from Centenary. The doctors' observations revealed no fractures of the skull, ribs or long bones. He could not ascertain the cause of the deceased's death because only bones remained.

Counsel for the accused consented to the production of the report and it was accepted as exhibit 1.

The State led evidence from the following witnesses whose evidence is summarized hereunder.

Dorothy Simbi: Is the wife of the deceased. She testified that the deceased left home, that is Plot 13 Mukwengwere Farm, Centenary, on 20 January 2015 in the morning. He left driving his motor vehicle, a Toyota Ipsum registration No. ABL 4665. He was in the company of Shongedzai, their daughter. The deceased undertook the journey as part of his routine since he always ferried children to crèche at St Alberts. She said that the deceased relied on commuting passengers with this car for a living.

This was the last time that the witness saw her husband alive.

She last tried to call him on his phone around 10:00am but did not receive any response. The daughter, Shongedzai, who would have returned with the deceased, showed up in the evening - alone. Shongedzai narrated to the witness how she had moved with the deceased that morning. When the deceased did not show up the whole evening, something which he had never done before, she proceeded in the morning to St Alberts to make a report to the police. She also alerted members of the close family about the deceased having gone missing. Searches were carried out but the deceased was not found.

On 13 August 2015 the witness was shown some human remains by the police at Mvurwi police station. She identified the remains as those of the deceased. The remains consisted of a skeleton. She, however, identified the remains as those of the deceased through recognizing his belt and pair of cream trousers. She could not commit herself to saying that she identified the remains through a T-shirt though she mentioned it. The T-shirt had discolored. She also said that the head or skull had a jacked wrapped round it but she did not know whose jacket it was.

Under cross-examination, the witness refuted the suggestion that because the remains were just bones, she could not be certain that they belonged to the deceased. She steadfastly maintained her evidence that she identified the deceased's trousers and belt and also said that the deceased's bones were still intact, in a skeleton shape, and not just single bones.

She also testified that she saw the accused at the police station and he was having a meal. The police told her that the accused was responsible for killing the deceased. She said that it was her first time to see the accused when he was pointed out to her at the police station by the police.

The witness gave a simple narration of how the deceased left home in the morning on 20 January 2015 and was never seen alive again.

Her evidence was largely not contentious save for the issue of how she identified the remains recovered by the police as those of the deceased. She maintained her position the she identified the remains as those of the deceased through the belt which was still wrapped round the trousers which trousers was still downed by the skeleton. She identified the remains through the trousers which she said belonged to the deceased.

The items of clothing were buried together with the remains and were not available to the court. The court noted that the issue of the identification of the deceased's remains did not appear to have been an issue and was not questioned until the trial commenced….,.

The court will record, at this stage, that the witness gave her evidence clearly and in a cool manner. She did not exaggerate anything. The court believed her evidence as credible.

Shongedzai Doro: Is the deceased's daughter and was residing at the same Plot as the deceased. She worked, and still works, as an Early Childhood Development (ECD) teacher at St Alberts Centre, Centenary.

She left home in the company of the deceased on 20 January 2015 in the deceased's motor vehicle. They were headed for St Alberts. As the vehicle got to St Alberts police station, the deceased's cellphone rang and it was on loud. The person who phoned said; 'Wave kupi mudhara (Oldman where are you now?). The deceased responded that he had already left home and that the caller should wait for him at Zororo restaurant. The caller then responded that he was already at the place.

On arrival at Zororo restaurant, the witness saw the accused. He came to the driver's window and spoke to the deceased saying that 'they were late'. The deceased then asked the accused to wait whilst he dropped the children he was carrying in the car at the bus rank. The deceased then gave the witness $100 and asked the witness to give him $10. She did so and retained $90. She disembarked from the vehicle. The deceased then told her that he had been hired by the accused but that the witness should wait for him after work so that they would return home together.

She testified that the accused, whilst sitting in the passenger seat, kept his face down and did not look up nor speak to her. When she finished work she waited for the deceased but he did not show up. Around 4:00pm she telephoned her husband who came to pick her up and they returned home. She narrated to her husband, and mother, how the deceased had left her, on hire by the accused, and taken a direction which she did not notice. This was the last time that she saw the deceased.

She was part of the team which searched for the deceased on the following day. She also sought police assistance and tried to gather information on the deceased's movements at the bus rank to no avail.

The witness identified the remains of the deceased at Mvurwi police as well as the accused whom she saw having a meal. She said that she identified the deceased through his grey hair and T-shirt with a red line which was however no longer visible.

The witness was cross examined on the attire which the deceased had been wearing on the day in question and he said that the deceased was putting on a red T-shirt with a white stripe, grey trousers and a green jacket. When put to her that her mother had testified that the deceased was putting on a cream trousers, she disagreed and reasoned that her mother could have been mistaken on account of her age. She confirmed that the skeletal remains still had a belt round it but could not commit to the belt colour as it was dirty. There was still a little human flesh around the waist line of the skeleton with the rest being bones. Some of the grey hair was on the jacket and some on the head. The witness stated that she was scared when she saw the remains but maintained that her fears were related to her failure to have a second look at the skeleton. She was however satisfied that the remains were those of her father.

Asked by the court whether the deceased had mentioned a name when he spoke with the person who telephoned him to find out how far he was she said that the deceased had mentioned the name Patrick.

The witness's evidence was given in a simple narration. Despite the fact that the deceased was her father, she exhibited a high degree of composure. The court was impressed with her demeanor and accepted her evidence which was not seriously challenged save with respect to the identification of the deceased….,.

Arnaldo Maguina Mussaliva: He resides at 57 St Alberts Business Centre, Centenary. He is the resident pastor at the local church.

The deceased was a member of the church having converted during the Easter holiday in 2014. On 20 January 2015, the witness was on his way to the fields from the Business Centre. When he arrived at the intersection of Mukwengure/Centenary Roads, he saw the deceased's motor vehicle driving fast. The vehicle stopped and he was given a lift by the deceased as the vehicle was headed in the same direction where he was going to; being to the fields at a place called Dhuramandhla.

He sat in the back seat of the vehicle.

The deceased introduced him to the passenger whom he said had hired him and was en route to collect that person's team which intended to go to Mt Darwin to pay lobola. He did not really study or observe the passenger's features and the passenger only looked in the witness's direction once. He heard the two discuss about carrying crates in the back of the vehicle and the two agreeing a hire charge of US$120. He was dropped off at the fields.

On the following day, the deceased's wife reported to him that the deceased had not returned home. The witness told the deceased's wife about his having been given a lift by the deceased the previous day. The witness advised the deceased's wife to report the deceased as missing to the police.

In cross examination, the witness was simply asked to confirm whether the passenger said “he” or “they” would pay the hire charge and he said that the reference was to them.

Nothing really turned on the evidence of this witness save that he confirmed that the deceased had one passenger with him when he left St Alberts Business Centre as testified to by the last witness. His evidence corroborated that of the last witness's as well as regards the deceased's reason for driving away from St Alberts, being that he had been hired. The witness's evidence was straight forward and the court accepted it as such.

Elijah Doro: Is the deceased's son and stays at 61 Avenue Haig Park. He is employed as a Research Officer by the Parliament of Zimbabwe.

On 20 January 2015, he was in Harare when he received a phone call from his mother, the first witness, who reported that the deceased had not returned home after leaving in the morning. He advised his mother to report to the police after 14 days. In the meantime, he took time off work and went to join up with other family members to search for the deceased. The searches were in vain.

On some date in February 2015 he said that the accused came to their rural home i.e. the deceased's Plot or residence. He had with him a file with some papers and a copy of the police outpost magazine. The accused was masquerading as a police officer and introduced himself as Constable Makomo. He purported that he had arrested some people at a road block driving a vehicle which could be or was the deceased's. He requested for the vehicle registration book of the deceased's vehicle so that he could use it to verify the identity of the vehicle.

The witness, and other family members, agreed to release the book to one of them who would then accompany the accused or Constable Makomo, as he had called himself, to Bindura Police Station and verify the vehicle identity.

The accused was treated to some tea with bread which he partook of. After partaking of the tea and bread the accused said that he had some business to attend to at St Alberts Centre. The accused then gave the witness and his young brother, called Farai, a Net-One number for them to call him later.

This was the last time the witness saw or spoke to the accused until after the accused's arrest.

The witness said that he failed to get through to the Net One number and concluded that the visit by the accused, passing as a police officer, was a hoax meant to get the release of the registration book.

The next time that the witness saw the accused was at Mvurwi Police Station, CID offices, in August 2015. The accused was in leg irons. The other members of the deceased's family, who included the deceased's wife, Shongedzai Doro and her husband, were also at the station. The witness reasoned that the accused must have had something to do with the deceased's death which had been reported to him.

The witness identified the deceased by his clothing, namely, a cream trousers and golf t/shirt which he had bought for the deceased in Uganda. He noted that the deceased had a jacket wrapped on his head or skull and the jacket did not belong to the deceased.

The cross-examination of the witness was a non-event. He agreed that when the accused came to the deceased's home, under the guise of a police officer, he conversed with a person in dreadlocks. The dreadlocked person was the witness's uncle. The witness's evidence, not unexpectedly, was not contentious. He gave his evidence with little emotion and exhibited a high level of maturity and impartiality. The court did not hesitate to accept his evidence.

Evans Mupundu: He stays at 75B Chiedza Street, Sanyati. He recalled a day when the accused came to where he was with some friends seated on a trailer. The accused enquired whether the witness knew anyone who washed motor vehicles. He did not know the accused prior to that encounter.

The witness responded that he did not know of anyone who washed motor vehicles. The accused next stated that his vehicle had broken down by the bridge and that his driver, whose licence he produced, was refusing to leave a compound where he was with a girlfriend so that the vehicle could be driven away. He enquired if the witness could drive and the witness confirmed and also agreed to help.

The two then went to where the vehicle was with a 5 litre container of petrol bought by the accused. The vehicle battery was however flat and the vehicle could not start. The accused left the witness by the car saying that he was going to look for a battery. The witness remained by the car until around 1:00am when the accused returned. The witness was by the car in the company of some locals as the vehicle was stopped or parked near a bottle store. The witness then spent the rest of the night in the vehicle with the accused as it was now dark.

Around 5:00am, the witness and the accused waited by the roadside trying to get help from passing motorists but none came. The accused, who was on the phone most of the time, then went away and returned with a battery. They jump started the vehicle and drove to Kuwirirana Business Centre. The accused continued with his telephone calls. The witness noticed that the accused showed little interest in the vehicle and when the witness asked about the registration book, the accused opened the passenger's glove compartment and took out certificates in the name of a certain woman. The accused's behaviour made the witness suspect that something was not right because of his continued phone calls. When the accused went into the bush, whilst on the phone, the witness alerted other persons around about the accused's suspicious behaviour including a member of the neighborhood watch committee.

Upon the accused's return from the bush he was asked about the registration book but failed to produce it. The accused and the witness were later arrested, but, the witness was released after paying a deposit fine for driving without a licence.

Under cross-examination, the witness denied that the accused ever mentioned other persons except his errant driver who had holed up with a girlfriend and refused to continue to perform his driver's duties. The accused told the witness that he was in the business of swapping cars for cattle. He noted that the accused, apart from being unable to drive, could not even play the car radio nor identify the vehicle registration book and produced educational certificates instead. The certificates were in the name of Maidei.

The evidence of this witness, though suspect, had a ring of truth. The court was alive to the fact that the witness's evidence had to be treated with caution because the witness, at one time or another, was in possession of the deceased's vehicle - albeit in the company of or under the instructions of the accused. The witness was treated as a possible accomplice. If not an accomplice in the death of the deceased, he certainly was such in the unlawful possession and use of the deceased's vehicle.

An accomplice, from an evidence perspective, and in its wide meaning, connotes a person who has committed an offence connected with the charge at hand. This includes a person who appears to have some intricate knowledge of the offence charged or is connected with it and would have a reason to shield himself from the consequences of his unlawful conduct. An accomplice, because of his intricate knowledge of the facts, can easily convince the unwary by lying or minimizing his involvement.

See HOFFMAN and ZEFFERT, South African Law of Evidence, 4th ed…,.; Moyo v State SC170-90; S v Mubayiwa 1980 ZLR 477 (A); S v Moyo 1989 (3) ZLR 250; S v Lawrence & Anor 1989 (1) ZLR 29 (S); S v Masuku 1969 (2) SA 315 N.

The court has also been guided in its approach to this witness's evidence, in addition to the guidelines in the above cases, by sections 267-279 of the Criminal Procedure and Evidence Act [Chapter 9:07].

As indicated, it was only after hearing the witness's testimony that the court formed the view that although the witness was not presented as an accomplice by the State, in which case the court would have warned or admonished him to tell the truth, even if such evidence implicated him, it was advisable to approach the witness's evidence as one would do with that of an accomplice.

The bottom line is that the court must be satisfied that it can safely rely on the witness's evidence without being hoodwinked or misled.

In casu, the court was satisfied that it could safely rely on the evidence of the witness and considered a number of facts which strengthened its resolve to accept the evidence as truthful. The considerations are as follows:

(a) The witness's testimony, on material points, was not denied by the accused.

(b) The witness reported the accused's suspicious behaviour to the Neighborhood Watch Committee member leading to the accused's arrest.

(c) The accused, in his testimony, did not implicate the witness in the commission of the offence.

(d) The witness admitted his role of driving the deceased's vehicle without a licence and paid a deposit fine for his misdeed.

The court formed the impression that the witness just got excited by the prospect of being hired to drive a motor vehicle, and other promises of good fortune offered by the accused, like a newly found job, otherwise the witness was not really involved in what befell the deceased.

Tapiwa Maziti: Is a detective sergeant in the Zimbabwe Republic Police and part of the investigating team.

He accompanied the investigating officer, Sergeant Chinyani, to Nembudziya and Kadoma Police Stations following the arrest of the accused and the last witness, Evans Mupundu. This was following the recovery of the deceased's motor vehicle. The team interviewed the accused, and, thereafter, the accused elected to make indications which he did freely and voluntarily.

The accused indicated the route which he took from St Alberts and also how he, Ngonidzashe Dube and Amos Moyo murdered the deceased. The deceased's remains were recovered, on the accused's indications, covered by stones in a shallow cave. The remains were taken to Mvurwi CID and identified by the deceased's relatives. He said that a team was dispatched to Gokwe to investigate the whereabouts of Ngonidzashe Dube and Amos Moyo but the two could not be found or identified.

The accused then gave another address to which police were dispatched. The witness was then transferred to Chiredzi and did not know what the result of the subsequent investigation or follow up revealed.

Under cross examination, he agreed that the accused mentioned the involvement of his accomplices, Amos Moyo, whom he said was his brother, and Ngonidzashe Dube, whom he said was a friend. He denied that the names mentioned by the accused were Amos Dube and Ngonidzashe Sithole. He also denied that the accused mentioned that he was employed by Amos Dube, a policeman.

The indications took one and a half to two hours when the police got to the mountainous areas where the deceased's remains were found. However, the aggregate time from the time the police and the accused left the station was about eight (8) hours because most of the time was spent negotiating the roads and the place was about 150km away from Mvurwi.

The accused indicated a rented place where he said him and his accomplices were camping before meeting with the deceased. He also indicated the place where the deceased was attacked and also where the deceased's body was buried. The witness described the general area where the murder occurred as a newly resettled area, sparsely populated, with the nearest house, though unoccupied, being some 200-300 metres from the place where the deceased's body was recovered. There were also some 10 or so houses some 500m-600 metres away. The area has dense vegetation. The team did not meet any person nor see livestock during indications.

The witness denied that the deceased was assaulted by either him or anyone else.

He denied that he already had an idea of the area where the indications took place. He denied being aware of whether or not the accused's warned and cautioned statement was confirmed nor the reasons thereof. He admitted however that the accused alleged, at court, on 13 August 2015, that he had been assaulted.

He denied that the accused was denied food and said that, as a detainee, the accused was fed by the uniformed section of the police.

He denied the suggestion that he was out to mislead the court.

In re-examination, he said that he was not aware that the deceased was dead prior to indications.

On clarifications by the court, the witness testified that the remains of the deceased were located at Hereford Farm in Centenary being a place which the witness had never previously visited. Despite the suggestion by the accused's counsel that the witness was out to mislead the court, the court did not share this view. On the contrary, the evidence of the witness was clear and easy to believe.

The crux of his evidence related to indications allegedly made by the accused. The indications led to the recovery of human remains identified later as those of the deceased. It was not alleged that the remains were planted where they were found and the accused merely led to the place. It was not shown that the witness knew the place where the recovery of the remains took place prior to the accused's indications.

The witness was also candid enough to admit that the accused mentioned his accomplices although the details of the names differed including what the accused said was the relationship of the trio. The court accepted the evidence of the witness.

Roy Chinyani: Is a Detective Sgt in the Zimbabwe Republic police. He is the investigating officer.

He was allocated a docket concerning the missing deceased and his motor vehicle, an Ipsum, registration No. ABL 4605, on 21 January 2015. The witness interviewed Alexio Manyara and Roderick Chakabuda on 24 January 2015. They alleged that they had been offered employment by the accused as driver and assistant on 24 January 2015 but the accused just dumped them.

Roderick Chakabuda knew the accused. He alleged that he had previously stayed with him in Muzarabani. The witness later received information concerning the deceased's vehicle from Farai Doro. He teamed up with other police details and went to Nembudziya police station where he interviewed Evans Mupundu who narrated how he had been requested by the accused to drive the vehicle, and, later, paid a deposit fine for driving a vehicle without a licence. He recovered the deceased's vehicle and discovered that the accused had been released to go and collect the vehicle registration book before the vehicle could be released to him.

However, the accused did not return.

In August 2015, he was advised of the accused's arrest in Kadoma. He proceeded there and interviewed the accused under warn and caution. He then took the accused to Mvurwi Police Station for further investigations. At Mvurwi, the accused elected to make indications. The accused indicated the place where he was picked up by the deceased, the place where the vehicle failed to cross a stream, and the place where the deceased was attacked, as well the place where the remains were recovered in a shallow cave.

He said that the accused mentioned that he committed the offence with accomplices, namely, Amos Moyo and Ngonidzashe Dube. The accomplices could not be found at places where the accused gave out as their place of abode. The persons were not known.

He went to Chikurubi Prison where the accused gave him names of girlfriends of the said accomplices and where to find them so that they could assist in the location of the accomplices. The girlfriends were not located nor known.

The witness' evidence, as to the recovery of the deceased's remains, was the same as that of the last witness and no purpose will be served by regurgitating it. Under cross-examination the witness said that the belt and trousers were buried with the remains of the deceased and he did not consider it necessary to keep them as exhibits.

He confirmed that the accused had gone to the deceased's residence and left a phone number. The phone number was investigated and belonged to a certain teacher at Mukwenge Primary School and not to the accused. He testified that he interviewed the owner of a hut where the accused said they camped but she could not identify the accused. He denied that the accused had referred to Amos Dube nor that Amos Dube was a policeman. He denied that he did not follow the leads given by the accused which could have led to the arrest of the accused's accomplices.

He admitted that the accused's warned and cautioned statement was not confirmed because the accused alleged that the police had assaulted him.

It was however not put to him that it was him who assaulted the accused or when the accused purported to have been assaulted by the police.

He denied that the accused had told him that the deceased had been handcuffed by Amos Dube and Ngonidzashe Sithole. He said that this was news to him which he was hearing for the first time.

The witness gave his evidence in a straightforward manner. The evidence was not contentious. Again, the materiality of his evidence lies in the indications made by the accused and the investigations made to locate and arrest the alleged accomplices. His evidence stood up to cross-examination well and his evidence remained intact. The court did not have problems accepting the same.

The court took note that although allegations of assault were made at court when it was sought to confirm the accused's warned and cautioned statement, as admitted by the witness, the identity of which police detail(s) assaulted the accused or when were issues that were not developed.

Critically, it was not contended that this particular witness assaulted the accused.

It must be recorded that the accused made admissions of the evidence as outlined in the summary of State case of the following witnesses, viz, Rodrick Chakabuda who knew the accused as someone who had been employed as a herdboy by Mrs Ndigume in Muzarabani.

He saw the accused on 21 January 2015 purporting that he was waiting for his relative who drove a Toyota Ipsum and was looking for him. The accused told the witness that he now stayed in Chinhoyi and was in the business of buying and selling cattle. He engaged the witness as a driver and asked the witness to drive the Toyota Ipsum to Chinhoyi on the pretext that he wanted to have cattle cleared.

From Chinhoyi they drove to Chegutu. The accused dumped the witness and his colleague, Alexio Manyara, in Chegutu and they had to find their way back home. He next saw the accused in August 2015 at Mvurwi Police Station.

Other witnesses whose evidence was admitted were Ronald Mashaymombe, the deceased's son in law, who sold the deceased the Toyota Ipsum in question and identified it at Nembudziya Police Station; Elvis Mangwaira a police officer whose police attire and identity card were stolen on 10 February 2015 whilst he was stationed at a police base in Nembudziya.. The attire and police identity card had been recovered from the accused upon his arrest in Kadoma.

The accused elected to give evidence and he took the oath.

He gave a long story in which a lot of what he stated had little relevance to his defence.

His defence, per his Defence Outline, was basically that whilst he had knowledge of the case, his involvement was peripheral or indirect because he was acting on instructions of Amos Dube, a serving member of the Zimbabwe Republic Police, who was his employer.

The evidence will not be repeated but a summary of the same will suffice.

He said that he had been employed by Amos Dube for three (3) years as a herd boy. He was told by his employer that they were going to buy cattle in Muzarabani and he was surprised. He was given a phone and directed to telephone the deceased. The deceased was known to Amos Dube. Amos Dube told the accused, on phoning him, to say that they would be going to pay lobola and would meet Amos on the way. He did connect with the deceased and met with Amos Dube and Ngonidzashe Sithole at a place called Chinyani.

It was at this place that the deceased was ordered to disembark from the vehicle, grabbed by his hands, and handcuffed. Ngonidzashe Sithole then put the deceased in leg irons. The deceased was tied to two trees whilst prostate. He called out for help but no one assisted him. He was left there.

He said that the handcuffs belonged to Amos Dube. He admitted that the three of them, with Amos driving, left or abandoned the deceased. In short, they robbed the deceased of his motor vehicle.

The rest of the evidence concerned how the trio continued to use the vehicle for their errands.

He admitted being sent to try and retrieve the car registration book from the deceased's place and posing as a policeman there after being given a police uniform by Amos Dube. The trio later returned to where the deceased was. He was still alive. The deceased was asked for the car registration by Amos Dube and Ngonidzashe Sithole. He told them that the book was at his home.

He went to the deceased's homestead. He admitted lying to the deceased's family about the registration book.

He admitted that he again returned to the scene with Ngonidzashe Sithole and Amos Dube and found that the deceased had died. He said that Ngonidzashe Sithole then gave him keys to unlock the handcuffs and leg irons. Amos Dube, however, volunteered to unlock the cuffs and did so. The deceased's body was then placed beside a rock and covered with grass and stones. The deceased's remains were left there and the trio drove away.

The accused testified that after covering the remains of the deceased, Amos Dube drove the vehicle, with him and Ngonidzashe Sithole as passengers, to Centenary. Whilst in Centenary, Amos Dube then said that he was known in the area. He was asked to look for a driver because he (the accused was not known). He then went to the bus rank and looked for a driver to drive his boss. He engaged a driver whose name he does not remember but that driver was in the company of Roderick Chakabuda whom he knew. He said that the driver, him and Roderick Chakabuda then proceeded to Chegutu where Amos Dube and Ngonidzashe Sithole had proceeded in advance. The driver and Roderick Chakabuda were dropped off in Chegutu and Amos Dube took over the driving and the trio, that is, the accused, Amos Dube and Ngonidzashe Sithole then proceeded to Kadoma.

From Kadoma, they drove to Copper Queen where the vehicle ran out of fuel and it was left on the roadside. The trio went to their homes.

On the following morning, the accused was instructed to go and collect the vehicle and he went with fuel. He said that he engaged a driver whom he knew to drive the vehicle but it would not start as the battery was flat. He then returned to Amos Dube's place and collected a tractor battery. The driver was able to start the vehicle. From there, he said that the vehicle, with him and the driver as the occupants of the vehicle, was driven to Kuwirirana Business Centre. He did not tell the driver their exact destination. At Kuwirirana Business Centre, he was instructed by Ngonidzashe Sithole to take the vehicle home. He however never got the opportunity to do so because he was then arrested at that Business Centre and detained by police details from Nembudziya. He was released on the following day to go and collect the vehicle registration book.

He lied to the deceased's family that upon his release he was given the police uniform by Amos Dube. He then masqueraded as a policeman and tried to get the deceased's family to give him the book after lying to them. He gave details of the lies he told the deceased's family about who he was and why he wanted the registration book. He had said that he had business at St Alberts after failing to get the book. He returned to his accomplices and they agreed to abort the efforts to retrieve the book.

The deceased's family members continued to phone on the numbers which he had given them when he lied that he was going to St Alberts. Amos Dube would cut them off.

In terms of sequence of events, the visit to the deceased's homestead occurred before they went back to where they had left the deceased in handcuffs and leg irons to retrieve the same and bury the deceased's remains. He said that he then returned to his workplace in Gokwe and continued with his duties of herding cattle and doing other chores. He then went to Kadoma for some shopping, missed his bus back home and was arrested by police officers patrolling the bus rank. He was detained for four (4) days and was collected by police officers from Mvurwi CID on the fifth day.

He denied having been in police uniform upon his arrest. He said that police assaulted him.

He testified that he told the police to quickly arrest Ngonidzashe Sithole and Amos Dube but the police did not believe his story about the involvement of Ngonidzashe Sithole and Amos Dube. They accused him of lying.

The accused was asked by his pro-deo counsel whether he did anything in the goings on which contributed to participating in the commission of the offence charged. The accused's response was that;

“I was following instructions.”

He said that he was forced to sign a warned and cautioned statement and was thoroughly beaten to a point where the magistrate at Guruve ordered that he be treated as he was coughing and nose bleeding.

The court noted, however, that the statement was no tendered in evidence.

He said that Amos Dube and Ngonidzashe Sithole used to visit him at prison. He further testified that each time he gave the police the correct names of his accomplices, the police would deliberately change the names to fix him because he is an orphan. He said that the police changed the names to Amos Moyo and Ngonidzashe Dube yet he had given them the names Amos Dube and Ngonidzashe Sithole.

The accused was cross examined by the prosecutor.

He was just on the defensive and evaded questions. He however agreed that the person whom he lured on the pretext of hiring him is the same person whose remains were recovered by police. The admission, of course, put paid to his denial, in the Defence Outline, that the remains recovered by the police were those of the deceased in this indictment.

He denied that Shongedzai Doro saw him when he was picked up by the deceased. He denied picking up Arnaldo Maguina Mussaliva, the priest. He denied being in uniform when he went to the deceased's residence to try and get the vehicle log book.

Asked why he impersonated a police officer, he said that he was not educated and had in fact asked Amos Dube and Ngonidzashe Sithole whether, when they sent him to try and get the vehicle log book, he would not meet up with the police.

He denied that he introduced himself to the deceased's family as Constable Makomo of Bindura Traffic.

Asked about the cell number which he gave to the deceased's relatives being that of a teacher he said that the number belonged to Amos Dube.

He said that when the deceased was being tied up, he sat inside the car and did not do anything. Asked what he thought was happening when the deceased was being tied up, he said that he was pre-occupied with his thoughts which were troubling him, in particular, that he no longer wanted to work for Amos Dube. Asked why he did not report the incident to the police, he said that he was not given a chance. As to why he continued associating with Amos Dube and Ngonidzashe Sithole, to the extent of hiring drivers and also accompanying them to Kadoma, Chegutu, Sanyati and Copper Queen, he said that he had nowhere to go.

He agreed that when the trio returned to the place where the deceased had been left tied up, to follow up on the vehicle log book, the deceased was still alive but very hungry. He appreciated that the deceased could die.

Asked if he cared at all what would happen to the deceased, he said that he did care, but that Amos Dube and Ngonidzashe Sithole were hard-hearted or headed.

He agreed that he was 26 years old at the time of the incident, an adult, but that Amos Dube stopped him from helping the deceased. He said that he was illiterate and did not own a driver's licence.

It was put to him that Amos Dube and Ngonidzashe Sithole were an afterthought of his and he said that the police deliberately recorded the names wrongly.

He could not explain the discrepancy between his Defence Outline and his evidence regarding indications and said that the police are the ones who made him indicate the various indications and that he was in leg irons.

He agreed that he stayed with his accomplices in a hut near the place where the deceased was attacked but that he stayed there with his accomplices only once. Asked by the court whether he appreciated that he and his alleged accomplices were committing an offence, he said that he could not do much as he was employed.

Asked why the police would shield criminals by recording wrong names to the ones he gave them, he said that he did not know.

The accused did not impress the court at all as witness in his defence. He failed to present a coherent account of his involvement in the events leading to the death of the deceased. The court was of the view that the accused was making every effort to make a clean breast from blame or involvement in the death of the deceased and sought to portray his role as being on the peripheral.

He sought to convince the court that he was just an unwilling log in a machine being operated upon by his accomplices. Measured against the State witnesses, the accused presented himself as a pathetic witness who did not care to tell even the most obvious lie. Each time that the accused opened his mouth to speak, one expected surprises if not fairy tales. The court rejected the evidence wherever it conflicted with that of State witnesses.

The prosecutor submitted that there were really few, if any, material disputes of fact when one considered or contrasted the evidence of the State witnesses with that of the accused. The only point of disagreement or departure consisted in the accused's involvement of his alleged accomplices whom no one appears to have seen – except, of course, the accused.

The police tried to follow on the leads regarding the accomplices but drew a blank.

The accused's assertion that the police, when given leads and names of the accomplices, deliberately changed the names given to them, is so improbable and unbelievable as to be decidedly false.

Only a gullible court would accept that, in the circumstances of this case, and given the seriousness of the charge of murder, the police would have sought to sacrifice the accused and exonerate the accomplices. No motive for such dereliction of duty or un-professionalism on the part of the police was suggested and the allegation just didn't make sense and must be dismissed.

The objective evidence in this matter clearly established, beyond any reasonable doubt, that:

(a) The accused purported to hire the deceased for purposes of going to pay lobola in Mount Darwin - which was a lie. The motive for the hire was intended to lure the deceased to agree to the hire as he would have wanted to know the purpose of the proposed trip.

(b) At all material times, the accused was in the deceased's motor vehicle and had possession and control of it, either by himself or through third parties whom he engaged to drive the vehicle under the guise that he had employed them only to dump them.

(c) The accused's actions leave the court, and, indeed, any reasonable trier of fact, in no doubt that he intended to deprive the deceased of his motor vehicle and went to the extent of impersonating a police officer and lying to the deceased's family as to his identity in a bid to cause the family to release the registration book. If the registration book had been released to the accused, he would have again hoodwinked the police at Nembudziya to release the deceased's vehicle to him.

(d) The accused could not have remained in the motor vehicle when the deceased was being disposed of his vehicle as he alleged. It is also inconceivable that the deceased would not have offered some resistance. In any event, even if it were accepted that the accused had accomplices who helped him disable the deceased, he, nonetheless, did not dissociate himself from the unlawful acts of the accomplices and thus made common purpose with them. He clearly appreciated what had been done to the deceased, that is, robbing him of his motor vehicle. He then willingly took a ride with his accomplices in the vehicle, that is, if there were any accomplices at all.

(e) The remains of the deceased were found as a result of indications made by the accused.

Whilst section 258 of the Criminal Procedure and Evidence Act provides that facts discovered as a result of an inadmissible statement or confession is admissible in evidence if relevant to the matter before the courts, the court was of the view that there was no need to rely on the provisions of this section.

This is so because the accused did not challenge any confession which was introduced by the State. The accused, despite complaining of assaults by the police, nonetheless testified that it was him who showed the police the murder scene and it was through his indications that the remains of the deceased were recovered. He pointed to the place where the remains were and volunteered the information that the remains were laid against a stone and covered with grass and stones by his accomplices in his presence.

HB169-17 : THE STATE vs EVERTON MOYO
Ruled By: TAKUVA J

Under cross examination, Qoqani was questioned to some length over his statement to the police which seems to contradict his viva voce evidence.He explained that the police wrote the statement in English and simply asked him to sign it without explaining its contents to him....,.Granted, there are some discrepancies in ...

HH43-16 : THE STATE vs ELISHA MLAMBO
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

The accused pleaded not guilty to a charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; it being alleged in the indictment that on 25 July 2014, at Farm 75, Musimbo, Chief Mapungwana, Chipinge, he unlawfully and with intent to kill, assaulted Elcina Makuyana with a stick several times all over the body thereby causing injuries from which the said Elcina Makuyana died.

The State alleged that the assault on the deceased led to injuries from which she died.

In order to prove its case against the accused, the State relied on the evidence of two witnesses who heard an altercation between the accused and the deceased; two police witnesses to whom the accused made certain statements and indications and a medical post mortem report by a doctor.

It is clear that there was no eye witness to the alleged assault on the deceased. The case against the accused was therefore wholly circumstantial evidence.

In his defence, the accused claims that he had not assaulted the deceased as alleged or at all. He however admitted that he had an on-going civil matter which, at the time, was pending at Chief Mapungwana's Court. That case involved accusations of dabbling in witchcraft against the deceased by the accused. The accused claimed that the deceased had caused illness in him by means of witchcraft. The Chief's Court was seized with that matter. He had hoped that the matter will be resolved at the Chief's Court when he received news of the death of the deceased. He denied any involvement in the assault although he had gathered that there were allegations of assault on the deceased.

The evidence led in court established the following facts:

The accused is the owner of Farm 75 Musimbo. The deceased lived on this farm. She was a distant relative of the accused's father. She lived alone. The accused fell ill, and, as a result of his own inquiries, he held the belief that the deceased had caused him to be ill by means of witchcraft. He reported his finding to Chief Mapungwana who summoned the deceased for a hearing. Both the accused and the deceased had attended at the Chief's Court and the matter was not concluded. It is not clear what the terms of adjournment of the matter before the Chief were. What is clear, however, is that the parties were to attend at this court pending the resolution of the matter.

By 25 July 2014 the matter had not been resolved. On that day, James Mhlanga (“James”) had heard the accused and the deceased exchange harsh words over the witchcraft matter. It was an altercation over allegations of witchcraft. According to James, the accused shouted that he did not want to keep witches at his farm. The accused threatened to assault the deceased. The deceased challenged the accused to prove that she was a witch. This altercation lasted about an hour, in James's estimation. He put the time as being between 18:00hours and 19:00 hours. He heard the accused's voice recede in the distance after 19:00 hours indicating that the accused was leaving the deceased's homestead. He did not visit the deceased's residence until after the news of her death reached him.

Another witness, Thomas Maphosa (“Thomas”), had last seen the deceased, his sister, the previous day, prior to 25 July 2014. She was going home after work. On 25 July 2014, as he arrived at Farm 27 Musimbo from a funeral, he overheard the accused's voice recede indicating that he was leaving the deceased's residence. He did not hear what the accused was saying but from the tone of the voices he concluded that there had been an altercation between the two. It had not been a cordial exchange. He knew of the court case between the two which was pending in the Chief's Court.

On 30 July 2014, Dr Makumbe, a medical doctor who examined the remains of the deceased, made the following observations;

“Deceased was assaulted all over the body with stick or log. Died on the spot. External examination indicated multiple bruises on the face, toes, buttocks and thighs. Excessive neck hypermobility in region C2. No other broken bone. Interior examination was not done.”

Dr Makumbe concluded that the cause of death was “cardio-respiratory arrest secondary to C-spine injury.”

Other evidence relied upon by the State include the accused's confirmed warned and cautioned statement; indications made by the accused to the police details during investigations, which were reduced to a sketch plan; a certificate of weight of a stick which the accused gave to the police indicating to the police that it was the stick with which he had assault the deceased; as well as the photographs of the deceased's remains.

The police witnesses involved in the matter, Assistant Inspector Muchanya and Cst Mhuru gave evidence regarding how they gathered evidence in this matter.

Their evidence was that when they arrested the accused he was properly warned and cautioned and advised of his legal rights. He briefly was silent but then indicated that he was not involved in the death of the deceased. However, upon getting to the police station, he had then admitted that he assaulted the deceased over witchcraft. He went on to give a statement to that effect. That statement was subsequently confirmed by the magistrate in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused explained that the statement he gave was freely and voluntarily made. He had given the statement in order to avoid further ill-treatment by the police. He claimed that they had placed him in handcuffs and leg irons before hanging him, headlong, between two tables in such a manner he was suspended on an iron bar.

I find that his claim of torture not to have been substantially proved as to require this court to inquire into the voluntariness of the giving of the statement. I come to this conclusion on the basis that had he been subjected to such ill-treatment; this would have featured quite prominently in his Defence Outline.

What was quite apparent, however, was that the confirmation proceedings were irregularly conducted in that the magistrate allowed the investigating officer to sit in the proceedings.

As such, the proceedings were a nullity and must be ruled to have been such a nullity. The deceased, in my view, discharged the onus on him to show that those proceedings were irregularly conducted. S v Nkomo 1989 (3) ZLR 117 (SC); S v Ndebele 1983 (2) ZLR 216 (SC).

However, that is not the end of the matter.

The warned and cautioned remained admitted by the accused. It was a detailed one; it touched on matters which only the accused could have known about. It deals with matters of details which are confirmed by the witnesses. The accused does not claim that the police forced him to write or say what is contained in the statement. He maintains he composed it himself - but is all lies.

Whether an admitted extra curial statement given by the accused is false is matter of fact. Whether it was given freely and voluntarily is a question of law.

As I have already stated, the accused gave his statement freely and voluntarily. He was not induced to do so by any threats of harm on his person; nor were other undue influences brought to bear upon him to give that statement; S v Slatter and Others 1984 (3) SA 798 (ZS).

He had proceeded to make indications freely. The indications he made to the police confirm what the State witnesses observed in respect of where the deceased's body was and generally how the scene of the crime looked like soon after the event.

The accused's statement is also corroborated by medical evidence which show that the deceased was heavily assaulted resulting in severe injuries all over the body.

In any event, there is sufficient circumstantial evidence which points to the accused, and the accused alone, as the perpetrator of the crime.

The dangers inherent in relying on circumstantial evidence were highlighted by KORSAH JA in S v Maranga 1991 (1) ZLR 244 (SC) where…, he states:

“Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence. LORD NORMAND observed, in Teper v R [1952] AC 480 at 489, that:

'Circumstantial evidence may sometimes be conclusive, but, it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another.

Joseph commanded the steward of his house 'put my cup, the silver cup, in the sack's mouth of the youngest' and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it.

It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'”

See also S v Chaluwa 1985 (2) ZLR 121 (SC).

Two witnesses independently confirm the following facts:-

1. The accused was heard quarreling with the deceased on the evening of 25 July 2014.

2. In the quarrel, the accused threatened to assault the deceased.

3. The exchange between him and the deceased indicates that the accused had the motive to commit the crime.

4. The accused was the only person who harboured a grudge against the deceased over witchcraft allegations and had a matter pending before the Chief's court on the subject.

There is no basis, in my view, for the court to reject the evidence of these two critical witnesses. That evidence, on its own, does not implicate the accused. It merely provides the motive for the crime.

The indications, to my mind, demonstrate the accused's involvement in the assault of the deceased. He had the motive to do so. The evidence shows that the accused had attended court where the deceased was expected to pitch up, but, on no less than three occasions, she had not done so. This must have angered the accused. He was bitter that the person he held responsible for the illness was not attending the Chief's Court. He had reason to confront her. That confrontation occurred on 25 July 2014. James Mhlanga and Thomas Maphosa confirmed this.

Although they do not state that the altercation degenerated into an assault, the accused confirmed, to the police, that he had assaulted the deceased on that day. Whether he assaulted her between 6pm and 7pm, as the evidence suggests, or later, is best known by him. The fact remains that the deceased was discovered dead two days later.

Who could have killed the deceased?

All the evidence points to the accused.

He is found guilty of section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Appealed HH61-06 : THE STATE vs MUNETSI KADZINGA
Ruled By: PATEL J and ASSESSORS: DANGAREMBIZI and TUTANI

The accused is charged with the murder of a farmer, Charles Anderson, on the 2nd of June 2002 at Norfolk Farm, by shooting him in the head with an AK rifle.The accused denies shooting the deceased and states that it was his accomplice, Benedict Makumbe, who shot the deceased.AdmissionsAt the ...

The accused is charged with the murder of a farmer, Charles Anderson, on the 2nd of June 2002 at Norfolk Farm, by shooting him in the head with an AK rifle.

The accused denies shooting the deceased and states that it was his accomplice, Benedict Makumbe, who shot the deceased.

Admissions

At the trial of this matter, the State produced a forensic ballistics report, prepared by Chief Inspector Jeka on the 21st of June 2002. This was admitted, with the defence's consent, as exhibit 1.

The report confirms that the AK rifle used to shoot the deceased was functional. It also confirms that the five cartridges, one spent bullet, and one bullet jacket, which were uplifted from the scene of the shooting, emanated from that rifle.

The State was unable to locate the postmortem report compiled for the purposes of this case. However, what was made available, at a later stage, and admitted by consent, as exhibit 4, was the relevant Form 231 (application for post mortem examination) which concludes that the cause of death was a rifle shot to the head resulting in brain damage and haemorrhage.

The evidence of the following State witnesses, as outlined in the State Summary, was also admitted with the consent of the defence:

(a) Cindy Anderson.

(b) Edmore Mapuranga.

(c) Jackson Ngandu.

(d) Detective Constable Mandeya.

(e) Detective Inspector Wakatama.

(f) Chief Inspector Jeka.

(g) Doctor Mapunda.

STATE EVIDENCE

Michael Tom

The witness was employed by the deceased as a gardener. On the 2nd of June 2002, he was working in the garden at Norfolk Farm when he was approached by the accused and his accomplice. The accused pointed a firearm at him and told him to raise his hands. (The witness identified an AK rifle, GM 5565/ZA 43271, as being the weapon in question and this was admitted by consent as exhibit 2).

The accused then ordered Michael Tom to follow him to the front of the farmhouse. He was told to lie down and was covered with a blanket. The accused gained entry through an open window while his accomplice remained outside. The accused then returned with the cook, Edmore Mapuranga, and opened the front door.

Inside the farmhouse, all four men proceeded through the passage into various rooms within. Michael Tom and the cook were asked to lie down at various stages while the accused and his accomplice gathered diverse items of clothing; a cash box; a television set; and some cassettes. At one stage, the accused threatened to shoot Tom and the cook but was restrained by his colleague.

When they were about to leave the farmhouse, the deceased arrived in his motor vehicle and called for Michael Tom. The accused declared that he would shoot the deceased if he came into the house. The cook and Tom were again ordered to lie down under blankets in the main passage. They were being watched over by the accomplice while the accused waited with his firearm in a toilet adjoining the passage.

The deceased then came into the house through the front door and entered the passage. The accused emerged from the toilet and shot at the deceased three times. At that point, the deceased fell to the floor. When questioned by his colleague, the accused confirmed that the deceased had probably died.

Michael Tom managed to peep through the blanket covering him and personally witnessed the accused shooting the deceased.

The accused retained control of the firearm at all times and appeared to be in charge of his accomplice. At no point did the accused hand the rifle over to his accomplice.

After the deceased was shot, Michael Tom and the cook were told to carry the bags of loot outside. The deceased's rifle was lying near a hedge and the accused took it and slung it over his shoulder. (The witness identified the rifle, a Parker Hale Safari Deluxe A1075M, and this was admitted by consent as exhibit 3).

The deceased's wife and young children were standing outside. The accused asked the deceased's wife for keys to a motor vehicle. She identified a red pick-up truck with its keys already in it. The bags of loot and the deceased's rifle were placed in the back of the truck. The accused kept his own rifle and proceeded towards the front gate. The accomplice told Michael Tom and the cook to get into the back of the truck. He then drove up to the gate where the accused was waiting. However, he did not stop at the gate but drove on leaving the accused waving and running behind the truck.

At some distance of about 2 to 3 kilometres away from the Norfolk farmhouse, the truck overturned. All three men disembarked from the vehicle and dispersed in different directions.

Ngoni Masoka

This witness was the Permanent Secretary responsible for lands at the relevant time. On the 2nd of June 2002, he was driving in the vicinity of Norfolk Farm when he saw the accused on the road running frantically and holding a firearm. The accused claimed to be a guard at the Norfolk Farm homestead and said that there had been a robbery. He asked whether Ngoni Masoka had seen a red truck and said that this was the truck that had been used by the robber. Masoka confirmed that he had seen the vehicle and asked about the owner of Norfolk Farm. The accused responded to say that the owner was in Bindura.

The accused requested Ngoni Masoka to turn back and ferry him to follow the robbers. Masoka complied and drove along the road for about 3 kilometres until they arrived at the spot where the red truck had recently overturned. After looking around the area, the accused asked Masoka to take him to the Chiweshe area where the alleged robber would be found. When they approached Chiweshe Village, the accused pointed to a hut and said he wanted to accost the robber in that hut and proceeded in that direction.

He did not return.

After waiting for 15 to 20 minutes, Ngoni Masoka drove back to the scene of the accident. Michael Tom had returned to the scene and explained what had transpired at Norfolk Farm.

(In court, the witness identified the AK rifle, exhibit 2, as being the firearm that was carried by the accused. He also positively identified the accused as the person he saw on the day in question. He was wearing blue denim jeans on that day).

Peter Ngandu

On the 2nd of June 2002, at Midzi Village in Chiweshe, he saw a visitor, the accused, talking to his brother, Jackson Ngandu. When questioned as to his identity, the accused became aggressive and assaulted his brother with a rifle magazine. Peter Ngandu intervened and the firearm fell out of the accused's hands. A lengthy scuffle ensued between the accused and the Ngandu brothers. They eventually managed to overpower him and tied him up with a rope. Someone was then sent to call the police from Gweshe Police Post.

(The witness positively identified the accused in court and stated that the latter wore blue jeans on the day in question. He also identified the AK rifle, exhibit 2, and its magazine, as being the firearm in the accused's possession on that day).

Detective Sergeant Joseph Nemaisa

The witness has been an attested member of the Zimbabwe Republic Police for a period of eight (8) years. On the 2nd of June 2002, he received a report of a murder having been committed at Norfolk Farm. He proceeded to the farm in the company of three other police officers.

At the farmhouse, they were first directed to the overturned red truck. At the scene of the accident, he observed the Nissan truck and met and interviewed the deceased's workers, Michael Tom amd Edmore Mapuranga. They said that the deceased had been shot and identified his assailant as wearing a green wet-suit top. Detective Sergeant Joseph Nemaisa recovered the stolen goods and the deceased's rifle from the truck.

At the farmhouse, the deceased's body was identified, lying in a thick pool of blood at one end of the corridor. Detective Sergeant Nemaisa observed two holes, one large and the other small, in the deceased's head. He picked up about four or five spent cartridges and one un-fired bullet and sealed them in a packet.

From what Detective Sergeant Nemaisa observed within the farmhouse, both MichaelTom and Edmore Mapuranga would have been able to witness the shooting of the deceased at the other end of the corridor from where they were told to lie down.

Detective Sergeant Nemaisa then proceeded towards the Chiweshe Communal Area. At Gweshe Shopping Centre, he found the accused being held by the Ngandu brothers and others. They handed over the AK rifle and magazine recovered from the accused. The accused was carrying a green wet-suit top and wore a striped shirt and blue jeans.

The accused said that he and his accomplice had robbed the AK rifle approximately two weeks before from an unknown motorist who had given them a lift. According to Detective Sergeant Nemaisa, this rifle was previously reported as having been robbed from the then Minister of Home Affairs, John Nkomo's, driver. The driver subsequently identified the AK rifle as belonging to him as well as some of the items that he had been robbed of and which had been recovered from the accused.

On the 18th of June 2002, he handed over the two firearms and the spent cartridges for forensic examination. The forensic ballistics report confirmed that the spent cartridges had been fired from the AK rifle recovered from the accused.

(In court, the witness positively identified the AK rifle, exhibit 2, as the rifle handed over to him at Gweshe as well as the relevant ballistics report, exhibit 1. He also identified the deceased's rifle, exhibit 3, as the firearm recovered from the Nissan truck).

Other State Witnesses

At the end of the State case, it was indicated that Cindy Anderson, the deceased's wife, had relocated to Australia and the State was unable to meet the cost of her air travel to and from Zimbabwe for the purposes of testifying at this trial.

As for Edmore Mapuranga, the deceased's erstwhile cook, he was said to be somewhere in the Guruve area but could not be presently located.

Jackson Ngandu was not called to testify, even though he was available, in view of the fact that his evidence would have been substantially the same as that given by his brother, Peter Ngandu.

Counsel for the State noted that the evidence of all three witnesses, as outlined in the State Summary, had been accepted and admitted by consent at the beginning of the trial.

Assessment of State Evidence

Michael Tom was the principal witness for the State. He gave his evidence in great detail and remained clear and consistent throughout his testimony. He was not discredited under cross-examination nor when he was questioned by the Court.

His evidence was amply corroborated by that of the other State witnesses who gave evidence in court. It is also corroborated by the evidence of Cindy Anderson and Edmore Mapuranga, which was admitted by consent as outlined in the State Summary. The Court found Michael Tom to be a very credible and reliable witness.

As regards the evidence of Ngoni Masoka, Peter Ngandu, and Joseph Nemaisa, the Court was also impressed by the clarity and consistency of their evidence. Their testimony was not meaningfully challenged or countered under cross-examination. They too proved to be credible and reliable witnesses.

However, the Court notes that Detective Sergeant Nemaisa's evidence as to the manner in which the accused came to be in possession of the AK rifle, viz. by robbing it from Minister Nkomo's driver, is essentially hearsay. It must therefore be disregarded for present purposes.

DEFENCE EVIDENCE

Munetsi Kadzinga (the accused)

On the 2nd of January 2002, he was at his home in Bindura. He was approached by his friend, Benedict Makumbe, who was carrying a black bag. Makumbe asked the accused to accompany him to his mother's house in Chiweshe to collect some maize.

En route to Chiweshe, Makumbe opened his bag and produced a firearm. He said that it had no bullets and that he had obtained it from Minister Nkomo's driver. He also said that the Minister and other “superiors” had assigned Benedict Makumbe and the accused to threaten and frighten away the white farmers in the Chiweshe area.

The accused did not refuse to comply because he thought that Benedict Makumbe would use the firearm against him.

At a later stage, along the way, Benedict Makumbe told him that they were going to Norfolk Farm in order to rob the homestead. The accused assumed, and believed, that Minister Nkomo had instructed Makumbe to carry out the planned robbery.

Upon arrival at Norfolk Farm, they found the gardner outside the farmhouse. Benedict Makumbe told the accused to hold the rifle and smashed a window pane to gain entry into the house. All three men went into the house through the broken window. Once inside, Makumbe demanded the rifle back from the accused. They then found the cook and both he and the gardener were ordered to lie down. Makumbe told the accused to collect blankets, items of clothing, and a television set. The accused proceeded to do so.

Whilst the accused was in one of the rooms where the workers had been ordered to lie down, he heard Benedict Makumbe shout “hands up” and he then heard three gunshots. A short while later, Makumbe came into the room carrying two rifles. He handed over the second rifle to the accused. Makumbe said he had shot the deceased because he had failed to put his hands up. The accused did not see the deceased's body.

Benedict Makumbe then ordered the gardener and the cook to carry the loot and load it into a red Nissan truck. The accused placed the second firearm into the back of the truck.

Benedict Makumbe and the accused sat in the front of the vehicle, while the two workers sat in the back. At the front gate, Makumbe gave the accused the AK rifle and told him to open the gate. Once the accused had opened the gate, Makumbe did not wait but drove off and the accused gave chase.

Whilst he was giving chase, he encountered a green motor vehicle being driven by one man (Ngoni Masoka). The latter agreed to pursue the red truck which they soon found overturned about 3 to 4 kilometres away. There was no one at the scene of the accident. The accused told Ngoni Masoka that the thief usually frequented his mother's house in Chiweshe. The accused then walked towards Chiweshe on his own.

At Gweshe Village, he was confronted by two men who asked where he was going. The accused was holding the rifle covered beneath his jacket. The two men asked him to show what he was holding. As he was about to uncover the rifle, they began assaulting him. A struggle ensued and the accused was felled to the ground. The two men then tied him up with a rope and took him to Gweshe Police Base at the Gweshe Shopping Centre.

At the Shopping Centre, the accused was handed over to the police. One of the police officers (Joseph Nemaisa) struck the accused thrice on his head with the AK rifle butt. He was then restrained by one of his colleagues. The accused was subsequently handcuffed and taken to Bindura Hospital to treat the head injuries he had sustained.

At Bindura Police Station, the following morning, the accused told the police officers that Benedict Makumbe had killed the deceased. The officers threatened and assaulted the accused and tortured him with electric rods. The accused eventually succumbed and admitted to killing the deceased because he was in great pain.

Under cross-examination, the accused accepted that when he was first shown the firearm by Benedict Makumbe they were still about two to three hours away from Norfolk Farm. However, he did not attempt to escape because he was afraid of being shot by Makumbe - even though the latter was his childhood friend.

Again, when Benedict Makumbe handed the AK rifle to him at Norfolk Farm, both before and after the robbery, he did not take flight because he was afraid of Makumbe and of being reported to Makumbe's superiors.

For the same reasons, he did not think of reporting the robbery to the nearest police station, either in Gweshe or in Bindura. He also did not tell Ngoni Masoka the truth because he panicked at that time.

When questioned by the Court, the accused stated that he had lied to Ngoni Masoka in order to obtain his assistance to look for Benedict Makumbe. At that stage, he said he was no longer afraid of confronting Makumbe. As regards Makumbe's conduct at Norfolk Farm, the accused was totally unable to provide any satisfactory explanation as to why Benedict Makumbe should have handed the AK rifle to him, initially, when they arrived at the farm, and, later, when they were leaving through the front gate.

Assessment of Accused's Evidence

The accused contradicted himself in several crucial respects, particularly under cross-examination and when questioned by the Court. Equally significantly, he failed to provide the Court with any credible explanation as to his state of mind, motivation, and conduct before, during, and after the admitted robbery.

Throughout the trial proceedings, the accused gave the impression of a witness who had fabricated his version of events beforehand and who was constrained to modify it as his testimony progressed in response to probing questions. The Court found the accused to be a thoroughly unsatisfactory witness and rejects his version of what transpired on the day in question as being extremely implausible and incredible.

Uncontested Evidence

As already indicated, the State was unable to locate the postmortem report compiled in respect of the deceased. However, the fact of his death and the cause thereof are not in dispute and were admitted by consent in terms of section 314(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. These facts were also established by dint of the contents of exhibit 4 (the relevant Form 231 application for postmortem examination which concludes that the cause of death was a rifle shot to the head resulting in brain damage and haemorrhage) and the evidence of Detective Sergeant Nemaisa.

Similarly, there is no dispute as to which firearm was used to shoot the deceased. The AK rifle, exhibit 2, was clearly identified as being the weapon in question through Detective Sergeant Nemaisa's evidence and the findings contained in exhibit 1. It was further identified through the chain of evidence given by Michael Tom, Ngoni Masoka, Peter Ngandu and Joseph Nemaisa.

The evidence of Cindy Anderson, Edmore Mapuranga, and Peter Ngandu, as set out in the State Summary, was also admitted by consent. Their evidence, as outlined, must therefore be taken as being un-contradicted.

As appears from the State Summary, the evidence of Cindy Anderson corroborates that of Michael Tom as regards the events that took place outside the farmhouse when the deceased was shot and immediately thereafter. The evidence of Edmore Mapuranga would have been materially similar to and corroborative of Michael Tom's evidence, while the evidence of Jackson Ngandu is virtually the same as that of Peter Ngandu.

The Court's Findings

It is clear from the evidence adduced at the trial that the accused and his accomplice, Benedict Makumbe, went to Norfolk Farm on the fatal day with the common purpose of committing a robbery at that farm. It is also clear that the accused was armed with an AK rifle loaded with ammunition.

As already stated, the accused's version, that he was coerced into this enterprise by Benedict Makumbe, who was acting on so-called superior instructions, is exceedingly difficult to accept.

If what the accused alleges were true, he had ample opportunity to escape from Benedict Makumbe not only on their way to Norfolk Farm but also at the farm itself when he was allegedly given the AK rifle by Makumbe on two separate occasions. Again, after the robbery, instead of charging in hot pursuit after Makumbe and lying to Ngoni Masoka as to his reason for so doing, he could have reported the incident to the nearest police authorities at the earliest opportunity. However, he did none of these things and was unable to proffer any persuasive explanation as to why he did not. In the event, the Court concludes that his version of events is wholly unbelievable and must therefore be rejected.

The Court finds that it was the accused, and not Benedict Makumbe, who was in charge of their joint venture. Although both of them might have planned and agreed to commit the robbery, it was the accused who dictated and directed their common purpose. More significantly, the accused retained full control of the AK rifle in question throughout the period under consideration and he was clearly prepared to use it in the event that they met any resistance.

Having regard to all the evidence before the Court, it is abundantly clear that it was the accused who fatally shot the deceased.

The clear and unequivocal testimony of Michael Tom, that he personally witnessed the accused shooting the deceased, is entirely credible. The Court is unable to perceive any reason why Tom should fabricate his firm and unwavering identification of the accused as the person who shot and killed the deceased. There was no suggestion or indication before the Court of the possibility of false incrimination and defence counsel quite properly conceded this point.

The Court accordingly finds that the accused shot and killed the deceased in the course of committing an armed robbery.

It appears that the deceased might have carried his firearm with him when he approached the farmhouse. However, it is not at all clear from the evidence as to whether or not the deceased had his rifle in hand when he was actually shot. What is unquestionably clear is that the accused was armed with a lethal weapon. He waited in hiding for the deceased to enter the farmhouse, fully prepared to shoot him as and when he appeared. He did not attempt to warn or stop the deceased. He deliberately shot the deceased in the head in what can only be described as an act of cold-blooded murder.

Verdict

On the evidence before it, the Court is satisfied that the accused's guilt has been proven beyond any reasonable doubt. Accordingly, the Court finds the accused guilty of murder with actual intent.

HH17-18 : STATE vs JAMES CHISHAKWE
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHAGONDA

Despite the fact that in the Defence Outline it is stated that the accused did not hide the murder weapon, that weapon was not produced in Court. Although the accused described the weapon to police and maintained that the police took possession of it, the iron bar was not produced ...

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

The State tendered in evidence the post-mortem 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.

HHH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

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

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

“A. TERMS OF THE FINAL ORDER SOUGHT

It is ordered that:

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

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

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

B. PROVISIONAL ORDER GRANTED

Pending the confirmation of the provisional order;

It is ordered that;

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

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

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

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

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

C. SERVICE OF THIS ORDER

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

I will now deal with the merits of the application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) He was unlawfully deprived of such possession.

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

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

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

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

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

I do not agree with that submission.

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

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

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

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

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

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

Appealed SC65-13 : NKANYEZI MOYO vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

The accused, Nkanyezi Moyo, aged forty-six (46) years at the time, appeals against the judgment of the High Court of 17 January 2013, in terms which he was convicted of murder with actual intent, and sentenced to death. The victim was Samson Ndobha Moyo, aged eighty-two (82).It was alleged that ...

It was alleged that on 6 August 2011, the appellant met the deceased near Moza River in Mangarame Area, Tsholotsho. Some words were exchanged between the two over a previous confrontation, resulting in the appellant dispossessing the deceased of the axe he had been carrying and striking him several times on the head and once on the back between the shoulder blades. On realising that his victim had died as a result of the assault, the appellant dragged the body into a nearby bush and buried it in a shallow grave in Moza River. He went on to hide the bloodstained axe and its broken handle as well as the deceased's right gumboot in an anthill. He then hid the deceased's left gumboot in a bushy area near Simotsi River, and his bloodstained green tracksuit in Manzanyama River.

A search, the next day, by the deceased's family and villagers, during which they followed a spoor they had seen, resulted in the discovery of the deceased's nearly naked body buried in the shallow grave. A report was made at Plumtree Police Station and the body was exhumed from its shallow grave and later ferried to United Bulawayo Hospital for a post mortem examination. Although the post-mortem report indicated that the cause of the death could not be ascertained due to the body's state of decomposition, the doctor noted in the same report that the body had injuries to the head and back. These observations were consistent with the injuries described by the various witnesses, including the police and the deceased's relatives, who had viewed the body after its exhumation.

It is not in dispute that after receiving information of bad blood between the appellant and the deceased the police arrested the former and charged him with the murder of the latter. At the subsequent trial, the appellant pleaded not guilty to the charge.

There were no eyewitnesses to the events that resulted in the death of the deceased, Samson Ndoba Moyo, nor was there any evidence placed before the court a quo which directly linked the appellant to the killing. The conviction of the appellant, of murder with actual intent, and after a full trial, rested solely on the indications that he made to the police and which led to the recovery of personal items belonging to the deceased. The items had been hidden in scattered places around the scene of the killing.

The appellant alleged that he had not freely nor voluntarily made the indications since he had been severely assaulted by the police. He further alleged that the items that were allegedly discovered following his indications, and which were dug out of their hiding places while he was being photographed by the police photographer, had actually been previously retrieved by, and at the direction of the deceased's brother, Sikwamula Filias Moyo. Such items, he averred, had then been 'planted' in the various locations with the objective of framing him for the death of the deceased. His evidence hinted at some collusion between the police and the said Sikwamula Filias Moyo, in retrieving the said items from where they had been hidden and then putting them back before directing him to make indications. He went further and alleged that the said Sikwamula Filias Moyo could have killed the deceased.

From the record, it is evident that three sets of indications were made following the discovery of the deceased's body. The first indications were made by the deceased's brother, Sikwamula Filias Moyo, on 8 August 2011. These indications, according to Sergeant Trust Tamusenga, who was present and made a sketch plan, were limited to the identification of -

(1) The place where the deceased's spoor was spotted;

(2) The trail of the spoor to where the deceased's right gumboot was found in a hole in an anthill; and

(3) The place where the body was discovered.

These indications were witnessed by some villagers, who included the then suspect - i.e. the appellant.

The second indications were made the following day by the appellant, after his arrest and therefore as a suspect in the killing. Again, these indications were witnessed by some villagers, who included Chibutu Mashwana, a witness who gave evidence for the prosecution. It was the evidence of Chibutu Mashwana that the deceased's brother, Sikwamula Filias Moyo, was not present when these indications were made. Sikwamula Filias Moyo's evidence that indeed he had not attended the scene where these indications were made was further confirmed by Sergeant Tarusenga. The Sergeant stated that after the retrieval of the deceased's blood-stained axe, following indications by the appellant, he and his team went to the deceased's homestead and found Sikwamula Filias Moyo there. They then asked if he could identify the axe, which he did.

During the indications, the appellant pointed to the same hole from which the deceased's right gumboot had been retrieved by Sikwamula Filias Moyo on the day the body was discovered. It was from this hole that the appellant then retrieved the axe and its broken handle, which was later identified as belonging to the deceased. The axe was buried deeper in the hole than had been the deceased's right gumboot. It had bloodstains on it and was taken to have been the weapon used in the killing of the deceased.

The police sergeant and Chibutu Mashwana gave consistent evidence to the effect that the appellant complained about not feeling well during the process that led to the retrieval of the axe. The exercise was then suspended and the appellant was taken back to Plumtree.

The third and last indications were done the following day, this time in the absence of any villagers. Only the police team and photographer witnessed the events. During these indications, the appellant led the team and pointed to a location from which, this time, the deceased's left gumboot was retrieved. This location was said to be some eight hundred (800) metres away from where the axe had been retrieved. After that, the appellant led the team to a location said to have been 1,6 kilometres away from where the right gumboot had been retrieved. At this location, the deceased's green tracksuit top and pants were retrieved.

The court a quo, in our view, correctly dismissed the evidence of the appellant that the police had colluded with Sikwamula Filias Moyo in executing what could only have been an elaborate plot to implicate him in the killing of the deceased. His evidence, despite the valiant effort by his counsel on appeal…, to persuade us otherwise, was far from credible.

It was also contradicted by other evidence before the Court.

The appellant did not explain how, when nor why the police would have chosen to collude with Sikwamula Filias Moyo in the manner suggested. Sikwamula Filias Moyo and Chibutu Mashwana both said they had no reason to lie against the appellant. There, is in our view, no reason to fault the trial court's finding that it credibly established that Sikwamula Filias Moyo's indications on 8 August 2011 were made solely for the purpose of showing the police how and where the deceased's body and one of his gumboots had been found. The appellant, it appears, had difficulty in separating the events surrounding, as well as the witnesses to, the different indications referred to above. This is borne out by his evidence, which was effectively discredited, that Sikwamula Filias Moyo was present and witnessed the indications that he, the appellant, made and which led to the retrieval of the axe. His reference to the said Sikwamula Filias Moyo having retrieved some items belonging to the deceased in all probability refers to the indication by Sikwamula Filias Moyo, to the police, of the location of the deceased's right gumboot. The indications which led to the retrieval of the deceased's axe, his left gumboot and tracksuit from locations scattered some considerable distance from each other were done by the appellant in the subsequent two (2) days. It is difficult to conceive when and how Sikwamula Filias Moyo could have colluded with the police to stage the scene that the appellant alleges.

Counsel for the respondent referred us to section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] which states as follow:

“It shall be lawful to admit that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such a person notwithstanding that such pointing out of information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

Counsel further referred us to S v Nkomo 1989 (3) ZLR 117 (SC) where it was held that indications leading to the recovery of the murder weapon are admissible as they are external from the accused. It was stated as follows in that case:

“When a man points out a thing his act proves that he had knowledge of some fact relating to the thing.”

On the basis of the law and authority cited, it is argued for the respondent that the court a quo correctly accepted the indications made by the appellant, which led to the recovery of the murder weapon. Further, that since the admission of that evidence was 'lawful', as contemplated by section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], a trial within a trial was not a prerequisite to the admissibly of such indications.

We are persuaded by these submissions.

The appellant pointed to the place where the axe was buried so deeply that some digging was necessary to retrieve it. He could not have done this unless he had knowledge of some fact relating to the item concerned. The appellant then led the police to two other locations from where other items belonging to the deceased were retrieved. It can, in our view, and by parity of reasoning, be assumed that the appellant had knowledge of some facts relating to these items. The locations from which the items were recovered were so spaced as to reasonably suggest a deliberate effort to conceal and prevent their random discovery. All this leads to the inevitable conclusion that the appellant buried the items in the places that he indicated. The items having been identified as belonging to the deceased, all reasonable doubt was, in our view, removed that the appellant had caused the deceased's death. That is so because the deceased's body was discovered without the clothes and gumboots in question. His body bore signs of injuries consistent with those inflicted from the use of an axe.

Counsel for the appellant cited authorities regarding the proper use of circumstantial evidence. She referred to R v Bloom 1939 AD 188…, where the cardinal rules of logic governing the use of such evidence in a criminal trial are set out as follows:

“1. The inference sought to be drawn must be consistent with all the proved facts; and

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

We are satisfied, on the basis of the evidence assessed above, that the inference that the appellant killed the deceased was properly drawn. From the indications that the appellant made it is evident that he had knowledge of the facts pertaining to the killing. The proved facts and manner of death of the deceased, in our view, exclude any other reasonable inference except the one drawn.

We find, in the result, that the appellant was properly convicted of the murder, with actual intent, of Samson Ndoba Moyo. The sentence of death was accordingly appropriate….,.

Accordingly, the appeal against conviction and sentence is dismissed.

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014.

Upon conviction, the penalty of death was imposed.

After hearing argument from counsel, this Court made the following order:

“It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons for the order would follow. These are the reasons....,.

FACTUAL BACKGROUND

The appellant was 27 years old when he was arrested and charged with the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”).

The State contended that on 22 September 2013 the appellant proceeded to Msoreka Mavengano Bushe's (“the deceased”) homestead in Village 10A Zviuma, Chief Nhema, Shurugwi at night. He found the 85 year old deceased having supper. The deceased lived alone. It was alleged that the appellant attacked the deceased with a metal axe and metal rod inflicting fatal injuries to the head, face, and left leg from which the deceased died instantly.

It was the State's case that after the death of the deceased, the appellant ransacked his house and took with him several items of property which he hid in order to conceal the offence.

The deceased's body was discovered in a pool of blood the following morning by one Itayi Melusi who made a report leading to the arrest of the appellant.

Following his arrest, the appellant made indications to the police which led to the recovery of a black suit, a metal rod, a big knife, and a salt shaker belonging to the deceased.

The appellant also gave a warned and cautioned statement to the police but the magistrate at Shurugwi refused to confirm the first statement when it was taken to her for confirmation. This was after the appellant had alleged that he had been assaulted by the police to induce him to make a confession.

Subsequent to that, the police officers investigating the matter booked the appellant out of Hwahwa Remand Prison for purposes of recording a second warned and cautioned statement from him. They took the appellant to the same magistrate at Shurugwi Magistrates Court for confirmation of the second statement. The magistrate confirmed the statement as this time the appellant did not raise a complaint against the police.

At the trial, the appellant pleaded not guilty to the charge.

The State produced the appellant's second warned and cautioned statement in terms of section 256(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], among other evidence.

It also relied on the evidence of one Evia Matura, the Provincial Magistrate who conducted the confirmation proceedings and Detective Vumindaba Mpofu, the investigating officer, among other witnesses.

The appellant's defence, although he had submitted two diametrically different Defence Outlines, was that he had been assaulted by the police forcing him to confess having killed the deceased and robbing him of his property. He had also been assaulted to force him to make indications which led to the recovery of property - some of which belonged to the deceased.

He was not involved in the murder of the deceased. He had only been given a bag with clothes by Tulani Rukwe who had proceeded to the deceased's homestead on the fateful night with Victor Nzombe. The two had been panning for gold with the appellant at Dopota gold mining area. He later sold some of the clothes given to him in his village.

THE COURT A QUO'S FINDINGS

The court a quo found the State witnesses, particularly the investigating officer, credible. It accepted the evidence of Vumindaba Mpofu in its totality especially when relating to the recording of the confession made by the appellant and the statement of indications, as “the demeanour of (the) witness and the narration that he gave as well as the manner in which he answered the questions” suggested truthfulness.

On the admissibility of the warned and cautioned statement, the court a quo embraced the evidence of the Provincial Magistrate who confirmed it as truthful without questioning how the same court, which had refused to confirm an earlier confession, found nothing wrong with the appellant being brought back to confirm a confession in respect of the same matter. The remarks of the trial court in that regard are pertinent:

“Nothing much turns on her (Evia Matura) testimony and she appeared to the court to be telling the truth. Moreso she is a judicial officer who was not shown to have an interest in the matter. In fact, she had refused earlier on to confirm a statement that the accused person had said he had given under duress. So the court believes that indeed even when she did the confirmation for the second time she adhered to the proper procedure.”

The court a quo concluded that the appellant had failed to discharge the onus placed on him by section 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] to show, on a balance of probabilities, that the confirmed warned and cautioned statement was not made freely and voluntarily. In the court a quo's view, the statement was properly confirmed.

Significantly, the court a quo found that even were the confession and the statement of indications found to be inadmissible, the appellant would not escape conviction by reason of the deceased's property found in his possession.

In doing so, the court a quo found ample evidence that the appellant committed the offence of murder in the course of a robbery. It returned a verdict of guilty of murder with actual intent.

After the verdict, the court a quo went on to enquire into the existence of extenuating circumstances as would preclude the imposition of the death penalty. After finding none, the court a quo sentenced the appellant to death.

The appellant enjoyed an automatic right of appeal owing to the penalty imposed.

GROUNDS OF APPEAL

The appellant raised three grounds of appeal in his appeal against both conviction and sentence. They are:

“1. The court a quo grossly misdirected itself in finding the appellant guilty of murder based on a warned and cautioned statement which was obtained through duress by the investigating officers. The court failed to consider that a warned and cautioned statement obtained through duress is inadmissible and cannot form the basis of a conviction.

2. The court a quo grossly misdirected itself in finding the appellant guilty on the basis of circumstantial evidence which did not lead to the inescapable conclusion that the appellant had committed the crime. There was evidence from the appellant of where he got the deceased person's items but the court a quo erroneously disregarded such evidence.

3. The court a quo grossly erred in considering the absence of extenuating circumstances in passing the death penalty. The Constitution stipulates the sentence of death should be passed only if the existence of aggravating circumstances is established and the court failed to consider these circumstances.”

ISSUES FOR DETERMINATION

This appeal raises only two (2) issues for determination by the court, namely:

1. Whether the appellant was properly convicted; and

2. Whether the sentence was proper in the circumstances.

WHETHER THE APPELLANT WAS PROPERLY CONVICTED

This is a case in which the State did not have any direct evidence of the commission of the offence. It relied entirely on the confession of the appellant and circumstantial evidence strewn all over the record. For that reason, there was a pressing need for the trial court to carefully and meticulously test the evidence before arriving at a verdict of guilt or otherwise.

It is common cause that the appellant made a statement to the police on 30 October 2013 in which he admitted having planned to kill the deceased who was rumoured as having sold a beast and had money. He confessed having executed his plan on the evening of 22 September 2013 using an axe with a metal handle while in the company of an accomplice who was armed with a metal rod. He also admitted having robbed the deceased of his belongings.

It is, however, the reliability of that confession which presents some legal challenges given the circumstances under which the statement was recorded and confirmed by the Provincial Magistrate at Shurugwi.

It is common cause that the appellant initially gave a statement to the police, under caution, which, upon being taken before the Provincial Magistrate for confirmation in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07] was not confirmed after the appellant alleged duress.

It is also common cause that after that failed attempt at confirmation, the investigating officer who had recorded the statement, booked the appellant from remand prison. He set about recording a second statement from the appellant, which statement was again witnessed by the same police officer who had witnessed the unconfirmed statement. The statement was taken to the same Provincial Magistrate for confirmation.

On the second occasion, the appellant did not raise a complaint and the second statement was confirmed.

Once the statement was confirmed by a magistrate, the provisions of section 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] set in. It provides:

“A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without any further proof. Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without him having been unduly influenced thereto, and if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The above provision places the onus on an accused person whose statement has been confirmed in terms of section 113 of the Criminal Procedure and Evidence Act to prove that it was not made freely and voluntarily.

The statement itself, once confirmed, is admissible in terms of section 256(1) of the Criminal Procedure and Evidence Act upon its mere production by the prosecution.

It is however the confirmation itself which was questionable.

It is trite that a statement induced by duress in the form of torture, physical beating, or mistreatment of an accused person would not be made freely and voluntarily.

An accused person should not be threatened, harassed, or even offered some benefit if he or she makes a confessionary statement. A statement made under those circumstances is clearly unreliable, and, for that reason, is in-admissible as evidence.

This court has, in the past, gone to the extent of holding that even the denial of access to legal representation to an accused person renders a statement made thereafter inadmissible. See S v Woods & Ors 1993 (2) ZLR 258 (S).

The procedure for confirming extra-curial statements is designed to curtail proceedings in a criminal trial by reducing prospects of trials within trials. The confirmation proceedings however should not be a mere formality because the statement, once confirmed, can be admitted in evidence at the trial on mere production. It is therefore imperative that the presiding magistrate not only adheres strictly to the procedure for confirmation, but also thoroughly investigates the freeness and voluntariness of the statement.

Where possible, an accused person must be made to identify those he or she accuses of applying undue pressure on him or her to make a statement. Where an accused person has identified them resulting in the magistrate refusing to confirm the statement, it certainly does not make sense for the culprits to be allowed to return to the same accused person and record another statement and have it confirmed.

Indeed, in confirmation proceedings, it is critical that the presiding magistrate be on guard and closely look out for suspicious factors tending to point to undue influence having been brought to bear on an accused person to make a statement or confession. These include the lengthy delay in recording the statement or in bringing it to court for confirmation.

Confirmation proceedings must always be held in camera in order to allow an accused person the freedom to raise any complaints against his or her police handlers. The investigating officer and his or her team should never be allowed anywhere near the court room where the proceedings are being conducted. Their presence tends to intimidate the accused person preventing him or her from reporting any mistreatment to the magistrate.

In the present case, it may well be, as attested by the presiding magistrate, that the accused person did not raise any complaints against the police and that he admitted having made the statement freely and voluntarily.

However, alarm bells should have chimed in the mind of the magistrate the moment she saw the same accused person whose confession she had refused to confirm a few days earlier, being brought back for confirmation of another confession in respect of the same offence.

Having said that, it occurs to me that it is wholly in-appropriate for the police, who would have had the confirmation of a statement recorded from an accused person rejected by a magistrate, to go back and seek to record another statement and to have it confirmed.

It renders the whole exercise a farce.

To my mind, once confirmation of the recorded statement has been rejected, the investigators must live with that outcome. The matter should end there. After all, the prosecution is not precluded from placing reliance on the statement at the trial. Only that it bears the onus of showing that it was made freely and voluntarily.

In my view, the court a quo fell into grave error when it accepted and relied on the confession of the appellant which was confirmed in such circumstances. This is more so regard being had that the appellant had proffered an explanation for the two statements and why he had not objected to the confirmation of the second one. He said that he had been assaulted to induce a confession and that when the statement was taken for confirmation, the investigating officer and his team he accused of assaulting him were allowed into the courtroom. They had threatened that if he prevented confirmation they would assault him further.

It is trite that where an accused person has given an explanation, the court is not at liberty to reject it unless satisfied, not only that the explanation is improbable, but that it is, beyond a reasonable doubt, false. See R v Difford 1973 AD 370…,; S v Mapfumo & Ors 1983 (1) ZLR 250.

In my view, reasonable doubt existed as to the reliability of the appellant's confession, it being common cause that the same officers who had recorded and witnessed the unconfirmed statement undertook the same exercise for the second time.

It is important to note, that notwithstanding, the confession was not the only evidence linking the appellant to the commission of the offence....,.

The evidence is essentially that the appellant was found in possession of property belonging to the deceased after his arrest. In fact, it is him who made indications leading to the recovery of the property in question. Exhibit 6 is a black suit belonging to the deceased. The jacket was recovered on top of a mountain while the trousers was found at the appellant's home in a room used by the appellant.

The appellant also led the investigating team to a cave where a metal rod, exhibit 7, and a big knife, exhibit 9, were recovered. The knife was identified by Shepherd Bushe as belonging to the deceased.

Also recovered following the appellant's indications, at another cave at Boman Kopje, was the deceased's salt shaker.

It is true that the appellant tried to challenge the admissibility of the indications which he made, stating that the indications were conducted the same day that he made the statement to the police under duress. According to him, those indications were inadmissible by reason that he had been assaulted.

In my view, the challenge to the indications was of no moment at all.

The trial court did not have to rule on their admissibility by reason of the provisions of section 258(2). It reads:

“It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

This provision was applied in Moyo v The State SC65-13 where the court stated:

“The appellant pointed to the place where the axe was buried so deeply that some digging was necessary to retrieve it. He could not have done this unless he had knowledge of some fact relating to the item concerned. The appellant then led the police to two other locations from where other items belonging to the deceased were retrieved.

It can, in our view, and by parity of reasoning, be assumed that the appellant had knowledge of some facts relating to those items. The locations from which the items were recovered were so spaced as to reasonably suggest a deliberate effort to conceal and prevent their random discovery.

All this leads to the inevitable conclusion that the appellant buried the items in the places that he indicated. The items having been identified as belonging to the deceased, all reasonable doubt was, in our view, removed that the appellant had caused the deceased's death.”

The same reasoning is applicable to the present case.

Even if the indications were not admissible, the evidence of the recovery of the items of property belonging to the deceased, could lawfully be admitted.

Indeed, when a person points out an item, his or her act proves that he or she had knowledge of some fact relating to the thing. See S v Nkomo 1989 (3) ZLR 117 (S)…,.

Clearly, possession placed the onus on the appellant to explain his possession.

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

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

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

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

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

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

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

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

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

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

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

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

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

After a short while he was seen to have died.

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

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

The grounds of appeal are the following:

AD CONVICTION

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

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

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

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

We were not persuaded by this submission.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Intending to kill the other person; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

The applicant applies for bail pending trial on allegations of committing four (4) Counts of robbery and one count of attempted robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] between the period 19 April 2018 and 14 May 2018.

The applicant, a 28 year old female adult, is a resident of Epworth, Harare. In the four (4) Counts of robbery charged, the applicant allegedly committed the robberies acting in concert with two accomplices, namely, Thulani Ndlovu and Last Sithole who are residents of Epworth as well. The robberies, which were committed using the same modus operandi around Harare and Chitungwiza, involved robbing complainants of their motor vehicles by use of threats and violence.

In Count 5, where the applicant is co-charged with the same two accomplices, the complainant successfully resisted being robbed of her money and other property.

In two of the Counts, the applicant was the one who would take to the steering wheel of the vehicle following the robberies, and, in the other two counts, she would be an active participant.

The State vehemently opposed bail on the main basis that there was overwhelming evidence against the applicant in that she was heavily linked to the offence.

In particular, the applicant was alleged to have been the one who jumped into the driver's seat and drove away the motor vehicles in two (2) of the Counts following the robbery of the complainants of their vehicles.

The applicant was arrested whilst driving one of the vehicles. The police alleged that the applicant made indications leading to the recovery of one of the vehicles, subject of one of the robberies.

In her application, the applicant averred that bail is a right in terms of the new Constitution. She surmised that the seriousness of the offence was not a bar to the admission of an applicant to bail. She quoted the case S v Tsvangirai (no citation given) and gave it as an example in which Tsvangirai, who faced a treason charge, which the applicant perceived as more serious than the charges she is facing, was admitted to bail.

There is no gainsaying that the grant or denial of bail is not informed solely by the seriousness of the offence. A serious offence, however, invariably attracts a stiffer or heavier sentence compared to a less serious offence. The prospects of a heavy penalty is viewed as a factor more likely to induce in the accused an incentive to abscond to avoid such sentence if convicted. The fact of the offence being a serious one is, therefore, taken together with other relevant considerations - a factor of great impact in considering whether or not compelling reasons to deny the applicant bail have been established.

The applicant denied that she was arrested whilst driving the motor vehicles as alleged by the State counsel in his response which was supported by an affidavit sworn to by the investigating officer. She averred that she had recently acquired a driver's licence, in September 2017, and did not have any experience to “drive off at a vehicle high jacking” (to use her words).

She also denied that she had recently been released from prison under the Presidential Amnesty as alleged by the State. She challenged the State counsel to provide proof of the fact that she was a beneficiary of the Presidential Amnesty of March 2018.

The applicant submitted that she operated a flea market, was a mother to two minor children and did not have any pending cases. She offered to abide by the most stringent bail conditions which the court considered proper to impose.

Since the applicant was a self-actor, I exercised the court's duty to assist an unrepresented applicant to ensure that such applicant is not prejudiced through a lack of ability to properly present his or her case.

I also considered that it was necessary to have the issue of previous convictions properly ventilated because the State alleged that the applicant had been freed on Presidential Amnesty meaning that she had a previous conviction.

Since the offences which she is facing were committed in May 2018, if, in fact, she had been freed on amnesty in March 2018, it would mean that she allegedly committed the present offences hardly two months after benefitting from the amnesty.

An applicant in a bail application is compelled, in terms of section 117A(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], to disclose previous convictions and pending cases. A wilful failure to do so grounds an offence in terms of section 117A(8) of the Criminal Procedure and Evidence Act punishable with a fine of up to Level 7 or imprisonment of up to two (2) years or both.

The offence is equally committed where the applicant supplies false information in regards to previous convictions and pending cases.

In terms of section 117(2)(d) of the Criminal Procedure and Evidence Act, the judge or court presiding over a bail application is required to take into account, inter alia, whether or not the applicant supplied false information on arrest or during bail proceedings.

In casu, if the applicant was being untruthful, to deny that she was a beneficiary of the Presidential Amnesty, which fact would mean that she had a previous conviction(s), it meant that she fell foul of section 117A(5) of the Criminal Procedure and Evidence Act. It also meant that the court would be required, in terms of section 117(2)(d), to take into account that the applicant had supplied a false denial that she had previous conviction.

Obviously, an adverse inference would have to be drawn against her being a proper candidate for release on bail given her untruthfulness considered together with other relevant factors.

An adverse inference can only be properly drawn where the court is considering proven facts.

I therefore directed the State counsel to provide proof of the applicant's release on Presidential Amnesty and postponed the hearing.

At the resumed hearing, State counsel…, capitulated on the issue of the applicant's alleged release on Presidential Amnesty. He submitted that the police had supplied wrong information on the Remand Form 242 when they endorsed on the form that the applicant and her accomplices were beneficiaries of the recent Presidential Amnesty.

The court expressed its disquietude at such despicable and abhorrent conduct by the police in endorsing untruthful information on the Request for Remand Form. The conduct of the police, in this regard, was detestable because the false information was intended to portray the applicant as an incorrigible criminal or repeat offender who is given to crime, and would, if released on bail, be likely to commit further offences.

Police are exhorted not to mislead the court because courts justifiably end up not taking the word of a policeman for objective fact and this can result in dangerous criminal suspects being released on bail because the courts will have a negative perception of the professionalism of the police.

The court therefore accepted that the applicant did not mislead it when she denied that she was a beneficiary of the recent Presidential Amnesty of March 2018.

CCC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution.

The applicant had to show that it is in the interests of justice for an order for direct access to be granted.

FACTUAL BACKGROUND

The applicant was employed by the Zimbabwe Republic Police as the Officer-In-Charge of Guruve Criminal Investigation Department.

On 24 October 2014 he was arraigned before the Magistrate's Court facing a charge of bribery, as defined in section 170(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was the respondent's case that on 3 April 2014 the applicant unlawfully and intentionally received $200 from one Biggie Chipfunde in order to influence investigations in a criminal case involving the latter as an accused. The criminal case was pending before the Magistrates Court.

The applicant denied the charge of bribery. He said that he received the money from Biggie Chipfunde, genuinely believing that it was a donation to a fundraising campaign.

After a full trial, the applicant was convicted of bribery. He was sentenced to twelve months' imprisonment, of which four months were suspended for a period of five years on conditions of good behaviour.

The applicant noted an appeal to the High Court against the conviction and sentence. The grounds of appeal against conviction were that the trial magistrate ignored glaring inconsistencies in the evidence of the respondent's witnesses; that the respondent failed to prove its case beyond a reasonable doubt; and that the authority to organise entrapment had not been properly obtained.

The ground of appeal against sentence was that a non-custodial sentence was more appropriate given the circumstances of the case.

The High Court upheld the conviction. The appeal against sentence was also dismissed by the High Court.

The applicant noted an appeal to the court a quo against the judgment of the High Court. The court a quo found that the appellant's grounds of appeal, against conviction, did not emanate from the High Court's ratio decidendi. It held that no proper grounds of appeal had been placed before it. The court a quo also upheld the sentence, after finding no misdirection on the part of the High Court. The appeal was dismissed in its entirety.

It is against this background that the applicant filed the application for leave for direct access to the Constitutional Court. He alleged that the court a quo breached his fundamental right to a fair trial.

The contention was that the proceedings in the Magistrates Court were tainted with gross irregularities which resulted in a substantial miscarriage of justice. He alleged that the trial magistrate “deliberately ignored analysing and evaluating the defence case and its documentary exhibits which rebutted all essential averments in the State case.”

The applicant further alleged that the subsequent upholding of the trial magistrate's decision, by the High Court, was irregular, as that court relied on section 170(2) of the Criminal Law (Codification and Reform) Act (the Criminal Law Code) as the basis for dismissing the appeal when the trial magistrate did not rely on the provision in question to convict him.

He alleged that section 170(2) of the Criminal Law (Codification and Reform) Act (Criminal Law Code) is invalid. He argued that the section is an unconstitutional provision which casts a reverse onus on the applicant to prove his innocence, thereby breaching section 70(1)(a) of the Constitution which guarantees an accused person the right to be presumed innocent until proven guilty.

Lastly, the applicant averred that the court a quo omitted to exercise its review powers provided for under section 25(2) of the Supreme Court Act [Chapter 7:13]. He contended that failure to exercise the powers provided for by law was an infringement of his right to have the case reviewed by a higher court, guaranteed under section 70(5)(a) of the Constitution.

The applicant averred that granting leave for direct access to the Constitutional Court would be in the interests of justice as it would vindicate his right to a fair trial guaranteed under section 69(1) of the Constitution.

The application was opposed by the respondent.

Counsel for the respondent submitted that the court a quo properly evaluated the evidence adduced by the State and concluded that the High Court had reached the correct decision in dismissing the appeal against conviction and sentence. The applicant was not happy with the manner in which the evidence was assessed by the court a quo. That does not mean that the decision of the court a quo is in violation of the applicant's fundamental rights.

DETERMINATION OF THE ISSUES

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT LEAVE FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT BE GRANTED

The jurisdiction of the Constitutional Court is provided for under section 167(1) of the Constitution.

The Constitutional Court is the highest court in all constitutional matters. It decides only constitutional matters and issues connected with decisions on constitutional matters. The Constitutional Court has the power to make the final decision on the question whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Direct access is an extraordinary procedure which is granted only in deserving cases and has been sparingly granted. Before a party can be granted leave to approach the Constitutional Court directly, in terms of section 85(1)(a) of the Constitution, he or she or it has to satisfy all the requirements set out in Rule 21(3) of the Constitutional Court Rules. The requirements are as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

It is peremptory for an applicant to set out facts or grounds in the founding affidavit, the consideration of which would lead to the conclusion that it is in the interests of justice to have the matter placed before the Constitutional Court directly.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18, the Court had occasion to deal with the requirements to be satisfied in an application of this nature. It held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied.

The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

Where the jurisdiction of the Constitutional Court is sought to be invoked on the allegation that the decision of a subordinate court, on a non-constitutional matter, violated a fundamental human right, the applicant must show that the violation was a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary decision.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18 the Court held as follows…,:

“The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.”

What amounts to a constitutional matter is defined in section 332 of the Constitution as meaning a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

In Moyo v Sergeant Chacha and Ors CC19-17, the Court explained the import of section 332 of the Constitution in the following words…,:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”…,.

The mere allegation that a fundamental human right enshrined in Chapter 4 of the Constitution has been infringed does not mean that a constitutional issue has arisen from a decision of a subordinate court.

A decision of a subordinate court, on any matter within the ambit of its jurisdiction, would not be found to have given rise to a constitutional matter on the basis of a founding affidavit complaining about an alleged incorrectness of the decision of the subordinate court.

The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution.

A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, was violated.

In General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23 it was held as follows…,:

“The apparently incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue. This is because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.”

Du PLESSIS, PENFOLD and BRICKHILL, Constitutional Litigation, 1edn, Juta & Co Ltd, Cape Town, 2013 state as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter.

For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt.

The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter', or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the [Supreme Court of Appeal].'”…,.

No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court.

The Constitutional Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues. The remedy of an appeal is available to a litigant who is dissatisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal.

This is a clear remedy which was available to the applicant.

In defining his appeal before the court a quo, the applicant raised five grounds against the conviction and one ground against the sentence.

The judgment of the court a quo shows that three of the grounds of appeal against conviction were abandoned. The abandoned grounds attacked the correctness of the High Court's decision on the allegation that proof beyond a reasonable doubt had not been led by the respondent. The abandoned grounds of appeal also raised the issue regarding the lawfulness of the entrapment authority.

At the hearing of the application, the applicant sought to argue that the court a quo should have detailed the reasons why he abandoned some of the grounds of appeal. The allegation was that the grounds were not voluntarily abandoned by his legal practitioner.

The legal practitioner acted in the interests of his client.

Having abandoned some of the grounds of appeal, the applicant could not seek to revive those grounds of appeal in an application to the Constitutional Court, alleging that there are irregularities which amounted to a substantial miscarriage of justice.

Once a party abandons some of the grounds of appeal, he or she or it cannot seek to attack the Appeal Court for accepting the abandonment.

On the basis of the grounds of appeal that remained, the court a quo made a finding that the applicant was properly convicted on the basis of the evidence that was led in the Magistrate's Court. The court a quo held that the High Court upheld the conviction of the applicant for the offence charged on the basis of the assessment of the evidence which was adduced in the Magistrates Court.

This is contrary to the applicant's averment that the High Court relied on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9;23] (the Criminal Law Code) as a yardstick to validate his conviction.

In Mukondo v The State HH277-17…, the High Court said:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above.”

It is apparent that the ratio decidendi applied by the High Court, in dismissing the appeal, was that there was sufficient direct evidence adduced by the prosecution to prove the guilt of the applicant beyond reasonable doubt. Reference to section 170(2) of the Criminal Law (Codification and Reform) Act is not evidence of the factors which the court took into account and which influenced its mind in making the determination it made. Reference to section 170(2) of the Criminal Law Code was made after the court had reached the conclusion, based on the analysis of the evidence adduced by the State, that the applicant had been properly convicted of the offence of bribery, as the evidence had proved his guilt beyond reasonable doubt.

The court a quo was also alive to the issue of the effect of the reference by the High Court to section 170(2) of the Criminal Law (Codification and Reform) Act.

The court a quo noted that the High Court commented on section 170(2) of the Criminal Law Code. The court a quo found that the issue regarding the section in question was a red herring because the conviction was not predicated on that provision.

At p5 of the cyclostyled judgment in Mukondo v The State SC44-19 the court a quo said:

“It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2). Finally, and more importantly, the remarks by the court a quo, on section 170(2), were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him.

Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an obiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law.”

The Constitutional Court does not interfere with non-constitutional findings of the lower courts, which findings are arrived at after a careful assessment of the evidence as a whole.

Even if it is assumed that the court a quo erred in the assessment of the evidence before it, that would not amount to a violation of the right to a fair trial. The Constitution could not possibly have sought to protect litigants against 'wrong decisions'.

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the Constitutional Court of South Africa held…,:

“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair justice']. The Constitution does not, and could hardly, ensure that litigants are protected against wrong decisions. On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.”

In Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…, the Supreme Court, sitting as a Constitutional Court, said:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment.

It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision.

Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong. See Maharaj v AG of Trinidad & Tobago (No.2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205I–206B.”

A reading of the judgment of the court a quo shows that it did not make any determination on a constitutional issue.

The court a quo held that the constitutional question which the applicant purportedly intended to raise in his grounds of appeal had no basis. The reason was that the High Court had not confirmed the applicant's conviction on the basis of section 170(2) of the Criminal Law (Codification and Reform) Act. The court a quo also noted that the constitutionality of section 170(2) of the Criminal Law Code was not an issue before the trial court. Neither had the presumption of a contravention of section 170(2) of the Criminal Law Code, upon proof by the State of the fact of obtaining, accepting or soliciting a gift or consideration, been relied upon in convicting the applicant.

Counsel for the applicant conceded, in the court a quo, that the provision had not been relied on.

The court a quo correctly held that there was no basis for seeking to raise, as a question of any relevance in the hearing and determination of the appeal against the decision of the High Court, the applicability of the provisions of section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9;23].

A perusal of the papers before the Constitutional Court shows that the applicant is basically dis-satisfied with the manner in which the evidence was assessed and evaluated by the trial court. He is further dissatisfied by the fact that the court a quo did not set aside the conviction and sentence on account of alleged irregularities.

The Court finds the application for an order for direct access to be a disguised appeal against the decision of the court a quo which upheld the conviction and the sentence. This can be gleaned from the applicant's founding affidavit, where he states that:

“…, if leave for direct access is granted, I seek for a relief to set aside the proceedings conducted under case number B1361/14, and the subsequent upholding of the foregoing proceedings under case numbers HH935/14 and SC820/17 as being inconsistent with the right to a fair trial guaranteed under section 69(1) of the Constitution of Zimbabwe.

I further pray for remittal of the case for trial de novo to Guruve Magistrate Court before a different magistrate.”

The relief sought is the same as the relief that was sought on appeal to the Supreme Court.

In Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC)…, the Constitutional Court said:

“…, while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated.

He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment…,.'”

The applicant is seeking to appeal against the dismissal of the appeal by the Supreme Court.

DISPOSITION

The application is hereby dismissed with no order as to costs.

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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

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

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

Two grounds were used to justify the request:

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

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

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

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

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

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

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

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

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

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

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

THE ORDER OF THE COURT

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

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

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

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

THE FACTS

The reasons for the order are now given.

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

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

The evidence is to the following effect:

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

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

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

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

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

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

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

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

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

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

She did as ordered.

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

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

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

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

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

Rodrick was taken out of the room.

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

She remained in that position for one hour.

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

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

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

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

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

She did as told.

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

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

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

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

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

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

She was detained there.

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

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

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

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

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

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

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

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

Meaning of section 15(1) of the Constitution

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

Section 15(1) of the Constitution provides that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The assessment of the minimum level of severity is relative.

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

APPLICATION OF SECTION 15(1)

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

The reasons for the decision are these:

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

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

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

The treatment to which she was subjected was premeditated.

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

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

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

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

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

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

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

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

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

FIRST GROUND

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

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

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

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

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

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

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

The reasons for the decision are these:

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

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

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

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

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

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

Section 13(1) of the Constitution provides that:

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

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

(a)…,.

(b)…,.

(c)…,.

(d)…,.

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

Section 13(4)(b) provides that:

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

(a)…,.

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

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

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

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

Section 18(1) provides that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kidnapping a person is a criminal offence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An appeal against the ruling succeeded.

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

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

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

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

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

The State is also bound thereby.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The analogy was inappropriate.

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

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

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

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

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

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

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

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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

THE SECOND GROUND

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

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

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

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

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

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

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

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

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

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

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

The Court takes the first point for determination.

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

The reasons for the decision are these:

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

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

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

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

It is on the principle of interpretation involved.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The section provides that:

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

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

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

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

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

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

ONUS

The Court takes the second point for determination.

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

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

The applicant discharged the onus on her.

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

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

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

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

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

Effect on Violation of Exclusionary Rule

Finally, the Court takes the third point for determination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COSTS

The Court takes the question of costs for determination.

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

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

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

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

Costs are in the discretion of the Court.

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

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

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

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

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

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

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

There will be no order as to costs.

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

Whether the confirmed warned and cautioned statement by the appellant was admissible evidence

The appellant and his co-accused were arrested on 1 April 2011. Four days later, on 5 April 2011, the investigating officer recorded a statement from the appellant after duly warning and cautioning him on his rights.

On 12 April 2011, the appellant was taken before a magistrate for the confirmation of the statement. He successfully challenged the confirmation of the statement on the basis that the statement was not his and that he had not made it voluntarily.

The confirming magistrate correctly declined to confirm the statement.

However, without citing any law for his decision, the magistrate thereafter ordered the appellant and the investigating officer to record a second statement.

The second statement was recorded the following day and was confirmed on the same date.

In challenging the second statement during the trial a quo, the appellant alleged, that, he had been threatened by the investigating officer with assault if the second statement was once again not confirmed. He thus did not inform the confirming magistrate that the statement was not his but that it was merely presented to him for signing.

It appears that the court a quo was not quite clear on the steps to take in dealing with the challenge.

The admissibility of the statement was challenged in the Defence Outline and orally in court when the prosecution tendered the statement with the other exhibits at the commencement of the trial.

In a terse, but correct ruling, the court a quo provisionally admitted the statement into evidence with the other exhibits and placed an onus on the appellant to rebut the admissibility of the statement.

The court was correct in provisionally admitting the statement into evidence, as, on its face, there was nothing irregular.

During the State case, the investigating officer gave evidence on how he had recorded the statements from the appellant, and, during his evidence-in-chief, the appellant in turn gave evidence on how the statement was taken.

He maintained his stance that the statement was not his as certain portions of it were insertions by the police.

In the main judgment, the court a quo held, that, the appellant, through his counsel, had withdrawn his objection to the admission of the statement into evidence.

This was contrary to the evidence on record.

And, to confirm the uncertainty that the court a quo appears to have been operating under regarding what to do with the challenge to the statements, it initially held that it was unnecessary for it to establish whether or not the second statement had been voluntarily made by the appellant as the appellant had withdrawn his objection to the admission of the statement.

Moments later, it observed that:

“Although the warned and cautioned statements were produced by consent after the accused had withdrawn their objections, it is in my view necessary to deal with the accused's evidence of the alleged duress because of the continued reference to the statements by the accused persons. Mr Mushonga submitted that the accused were not challenging the confirmation of the statements per se but the decision by the magistrate to confirm a new set of statements.”

The court then proceeded to find that the appellant had not been unduly influenced in making the statement.

The law on the admissibility of confirmed statements is codified. It is settled.

Section 256(2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in section 113(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof.

However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.

In a long line of decided cases, the steps that a court must take where an accused person challenges a confirmed warned and cautioned statement is settled. It is this:

Where the accused raises a potentially sustainable challenge to the propriety of the confirmation proceedings, the court is obliged to determine the validity of that challenge as a separate issue of fact.

The onus is on the State to prove the absence of any irregularity.

If the State discharges the onus, the statement is provisionally admissible and the onus shifts to the accused to rebut the presumption that the statement is admissible.

The onus of proof, on the accused, is to prove, on a balance of probabilities, that, the statements are inadmissible.

If the accused's challenge is upheld, the onus remains on the State to prove, beyond a reasonable doubt, that the accused made the statement and that he made it freely and voluntarily: see S v Woods 1993 (2) ZLR 258 (SC); S v Slatter and Others 1983 (2) ZLR 144; S v Manukwa and Others 1982 ZLR 30 (SC); and S v Gwaze & Anor 1978 RLR 13…,..

Against the yardstick set by the above authorities, the court a quo erred in many respects which I will not fully go into.

Primarily, as this was its ratio decidendi, the court a quo erred in holding that the appellant had withdrawn his challenge to the statement.

The record indicates that the appellant consistently denied having made the statement which he alleged was a confession to the offence.

The court a quo was aware, that, right up to the end, the appellant challenged the statement attributed to him. He thus “continued to make reference” to the irregularity of the statements throughout the trial as rightfully observed by the court a quo in its judgment.

In the absence of consent to the admission of the statement, the court a quo had to make a finding of fact on whether or not the statement was admissible evidence.

This it did not do.

I must make the point, that, contrary to the finding by the court a quo, that the confirming magistrate did not err in directing the police to record a statement from the appellant afresh, the recording of the second statement from the appellant was irregular and must be set aside.

The court a quo was of the view, that, since the appellant had not advanced any law that precluded the recording of the statements afresh, the order by the magistrate was proper.

Such a law is easy to find and ought to have presented itself to the court a quo.

The recording of extra curial statements from the accused is part of the investigation of the alleged crime. It is an exercise that falls wholly within the domain and discretion of the police. They, and not the court, elect whether or not to record a statement from the accused.

In our legal system, which is adversarial, and the magistrate or judge is a neutral umpire, the magistrate, or judge, has no role or place in the investigation of matters that come before the court.

Therefore, he or she cannot direct the investigation of the alleged crime at any stage.

It matters not that he or she will not tell the accused person on what to say in the statement as was contended by the court a quo. The bottom line is that the court has no power, whatsoever, to direct the police to record a statement from the accused person at any stage of the investigations or of the trial.

It is thus over-reaching of grave proportions for confirming magistrates to direct the police to record second statements from accused persons after declining to confirm the first statement.

Even if the statement that is eventually recorded from the accused is exculpatory, the bottom line is that a directive by the court, to the police, to record a statement from the accused is grossly irregular and so is the statement that is recorded pursuant to such a directive.

I note, in passing, and for the benefit of the Chief Magistrate, that, the directive to the police by the confirming magistrate in casu appears similar to one that was issued by the confirming magistrate in Mangoma v S SC36-20 in which this Court also set aside the statement.

The police may feel obliged to comply with such directives which not only have no basis in law but may violate the rights of an accused person to a fair trial.

I do not think that it is necessary to burden this judgment with a discussion on whether or not there is a law that precludes the police from recording a second set of statements from an accused person after the confirmation of the first has been declined.

It however presents itself clearly to me that the recording of a statement from an accused person by the police, whether first or subsequent, at the instance of, and in fulfilment of a directive of the court, is grossly irregular.

It is therefore my finding that the court a quo erred in admitting into evidence the statement by the appellant on the basis that it was adduced by consent.

There was no such consent.

Had the court a quo followed the approach laid out in the authorities cited above, it would have found, as I do, that the recording of the statement was irregular as it was at the instance of the court.

The confirmed statement by the appellant, dated 13 March 2011, must be struck off the record, and, any reference to its contents be expunged from the evidence.

The finding that I make above must apply with equal force to the statement made by the appellant's co-accused on the same date. This is so notwithstanding that he is not a party to this appeal. His statement was recorded in similar irregular circumstances.

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

This is an opposed application for leave to appeal made in terms of section 44 of the High Court Act [Chapter 7:06] as read with Rule 20(1) of the Supreme Court Rules, 2018.

The applicant was convicted of rape and sentenced to an effective 10 years imprisonment by the Harare Regional Court on 11 July 2016.

His appeal against conviction and sentence was dismissed by the High Court on 29 May 2019.

He sought leave to appeal to this Court, against the dismissal of his appeal, before the High Court; which leave was declined on 10 December 2020 hence the present application.

FACTUAL BACKGROUND

The applicant was arraigned before the Magistrates Court charged with one count of indecent assault and one count of rape.

The offences were allegedly perpetrated on two minor children who were his nieces. He was acquitted in respect of the first count of indecent assault.

The second count of rape is alleged to have occurred on 22 August 2010, at 11 Tavey Road, Vainona.

The complainant and her sister (the complainant in count one) had visited their aunt, Patience Muswapadare (Patience), who is a wife to the applicant. The complainant's evidence was that on the day in question, at around 3am, Patience woke her up and asked her to tend to her (Patience's) baby. This was because Patience wanted to prepare some food for the applicant.

After she lulled the baby to sleep, she sat on a couch in the bedroom.

The applicant, whom she had met in the lounge, came up to her on the couch. He fondled her breasts and vagina, produced his pistol, and raped her. He only stopped after hearing some footsteps.

The complainant managed to break free and went to her bedroom.

She did not feel comfortable to report to Patience Muswapadare. She reported the ordeal to her sister the following day, on 23 August 2010.

The sister had spent the night at an all-night prayer. She forbade her from telling anyone because she was not comfortable sharing the experience with other people.

Eventually, on 30 October 2010, the complainant voluntarily confided in her maternal uncle's wife, Sally Ndanatsei Maramwidze, about the rape. Thereafter, other relatives were informed.

On the same day, the matter was reported to the police at Highlands Police Station.

The complainant was medically examined at Parirenyatwa Hospital on 1 November 2010. The report indicated that the hymen was broken.

Apart from the complainants, the State led evidence from Sally Ndanatsei Maramwidze (to whom the report of the rape was made), Francis Maxwell Maramwidze (maternal grandfather and legal guardian of the complainants to whom the allegations were later reported and who approached the police), Edwin Tafadzwa Chanakira (the doctor who examined the complainant and found that her hymen had been broken which was indicative of sexual penetration), Mirirai Chiremba (the Director of Financial Intelligence at the Reserve Bank of Zimbabwe to whom the applicant gave his pistol, magazine, and cleaning kit on 22 August 2010 to return to RBZ Security Department and requested that an earlier date of return be entered), Grasham Muradzikwa (the Director of Security at the Reserve Bank of Zimbabwe who refused to take the applicant's firearm from Mirirai Chiremba or backdate it to a particular date) and Monica Kativhu (the police officer at Borrowdale Police Station who recorded statements from the complainants).

The defence's case was led by the applicant who raised the defence of an alibi.

He said that he was at his Mandara house with his brother, Cletos Kereke, at the time the alleged offence was committed.

He had witnesses to support his testimony.

He also denied influencing the backdating of the return of his firearm. He claimed that he had surrendered it on 14 June 2010 - way before the allegations against him were levelled.

The applicant claimed, that, the complainant's grandparents were trying to extort him for his refusal to pay the complainants school fees. Gideon Gono and his counterparts wanted to silence him against revealing their fraudulent activities, and also, that, there were political machinations against him by Webster Shamu and others.

The second defence witness, Patience Muswapadare Taruvinga, wife to the applicant, testified that the complainant's testimony was untruthful.

The third witness, Alphios Njodzi Chinhano, pointed to friction between the applicant and Francis Mwaramwidze because of political ambition.

Next to testify was Cletos Kereke, who corroborated the applicant's testimony, that, at the alleged time of the offence, he and the applicant were in Mandara.

Taurai Bwanalisa and Norest Ndoro testified that they were security guards on duty at the Mandara house. They recorded the applicant's visit on 20 August 2010 but disputed the authenticity of the extract produced from the occurrence book in court.

Anna Muswapadare, mother in law to the applicant, and a stepmother to the complainant's father, attested that she shared the bedroom with the complainant during the material time and that she could not have been raped.

Dr Chiratidzo Lorraine Jeyacheya, a medical doctor and Head of the Casualty and Emergency Department was called at the court's instance and confirmed that Dr Chanakira was on duty at the time of the examination.

The applicant had disputed that Dr Chanakira was on duty on the date the complainant was examined.

After an analysis of the evidence before it, the trial court convicted the applicant of rape.

The court found that it had been proven, beyond reasonable doubt, that the applicant raped the complainant.

The court reasoned that the complainant's report was voluntary; she gave a reasonable explanation as to why she did not report the case in time; and that she was able to give a clear account of the circumstances of the alleged rape.

It further found, that, her testimony was corroborated by Sally Ndanatsei Mwaramwidze and Francis Mwaramwidze.

The court found insignificant the discrepancy in her narration in the applicant's use of a gun.

It found that Dr Edwin Tafadzwa Chanakira, who examined the complainant, was indeed on duty on 1 November 2010.

It also found, that, the applicant still had the gun in his possession on 22 August 2010.

The court concluded that the allegations were not as a result of fabrications by the Mwaramwidze family or political machinations. It found that the applicant had lied concerning his possession of the gun, backdating its return, coaching of the witnesses, and an unconvincing explanation that he was with Cletos Kereke in Mandara.

In sentencing the applicant, the court took into account the mitigating and aggravating circumstances and sentenced him to an effective 10 years imprisonment.

The applicant noted an appeal to the court a quo against his conviction and sentence which was dismissed in its entirety.

The court found, that, the trial court properly assessed the evidence and correctly found that the applicant's guilt had been proven beyond reasonable doubt.

It found, that, the trial court properly assessed the complainant's evidence and found that her detailed account of the rape, and her voluntary report, which was corroborated by Dr Chanakira's medical report, met the threshold of proof beyond reasonable doubt.

It also discarded the applicant's defence of impossibility of the actus reus whereby he contended that raping the complainant on a couch was impossible, as invalid.

The court a quo also found that the trial court properly disregarded the applicant's testimony regarding the return of his pistol as his version was only corroborated by a document which he had authored and forced Mirirai Chiremba to co-sign.

Further, that there was an anomaly in the defence witnesses evidence, as their statements, in affidavit form, were commissioned by one legal practitioner and were given on the same date.

The possibility of coaching, in these circumstances, could not be ruled out.

As regards sentence, the court found, that, the trial court properly exercised its discretion in weighing aggravating and mitigating circumstances and that the sentence imposed was within the range imposed in similar cases.

The court held, that, the decision of the Magistrates Court could not be faulted.

It was the court's view, that, the applicant, as an adult, and relative of the minor child, was expected to protect her and not abuse her.

Aggrieved by the High Court's dismissal of his appeal, the applicant sought leave to appeal to this Court from the High Court.

The court a quo found, that, the appeal did not have reasonable prospects of success.

The factual disputes were thoroughly determined. It found that the trial court properly dismissed the applicant's defence of alibi after rejecting the defence witnesses testimonies on the basis that they had been coached.

The court reasoned, that, there was a remarkable coincidence in that their affidavits, in which they exonerated the applicant, were commissioned before the same legal practitioner, under circumstances where they claimed to have gone to the legal practitioner separately, and all were recorded on the same day.

The court also held, that, the applicant's alibi was choreographed as the guards at his Mandara house could not corroborate the applicant's testimony as they disowned certified extracts of an occurrence book produced in court. Further, that the applicant would visit his Mandara house where none of his family were staying. He visited with his brother who then becomes a defence witness attesting to his alibi.

It also found, that, the surrender of the pistol, a few hours after the rape, was not mere coincidence.

As regards the sentence, the court found, that, the sentence imposed was amply justified and the trial court properly exercised its discretion.

It is against this background that the present application has been made.

SUBMISSIONS BY THE APPLICANT

Counsel for the applicant submitted, that, the applicant has reasonable prospects of success on appeal as the court a quo, in dismissing his appeal, erred in failing to consider and place in their proper context material misdirections that saddle the decision of the trial magistrate. He raised four main areas of concern, viz;

(i) The impossibility of the actus reus;

(ii) The inconsistencies in the complainant's evidence;

(iii) The rejection of his defence of an alibi; and

(iv) The finding that defence witnesses were coached on what to say in court.

On the issue of the impossibility of the actus reus, counsel for the applicant submitted, that, it was physically impracticable that the applicant could have raped the complainant in the manner alleged.

The panty, which the complainant claimed could stretch, was not produced.

Her reaction is not one objectively expected under such circumstances.

She claims to have been raped at 3am, after having been woken up by Patience Muswapadare Taruvinga to tend to her baby.

Patience Muswapadare Taruvinga testified, that, on the night in question, she was not at home as she was at the Avenues Clinic where her baby was admitted.

No proper reasons were given for rejecting her evidence.

There was also the evidence of Anna Muswapadare, who shared a bedroom with her, to the effect that the complainant was in bed and asleep at the material time.

The failure by the court a quo to consider, in its proper context, the impossibility of the facts presented by the prosecution is material.

Instead, the court characterised the applicant's arguments on impossibility as exhibiting male chauvinism and patriarchy.

Counsel for the applicant further argued, that, evidence led by the prosecution lacked consistency in material respects to warrant reasonable doubt.

There was no consistency on the issue of the gun, the time the offence was committed, and the reason why the complainant did not report the issue to the trusted adults at the first available opportunity.

The court a quo erred and misdirected itself in failing to, in totality, find that the inconsistencies in the prosecution's version of events as well as the improbability of the same cast significant doubt on the truthfulness of the complainant's allegations.

Further, counsel contended, that, the court failed to fully consider the applicant's defence of an alibi.

The onus remained on the prosecution to establish, that, the explanation was not only improbable but that, beyond any reasonable doubt, it was false.

The applicant asserted that he was not at his Vainona home at the time of the alleged rape.

He called witnesses, and the consistent thread in all their testimonies was that the applicant could not have committed the offence as he was not at the scene of the offence.

Two of the witnesses were security guards who were no longer in the employ of the applicant at the time of the trial and had no motive to lie.

Counsel for the applicant further submitted, that, the trial court proceeded from the premise that the alibi witnesses who testified in respect to the applicants alibi were coached.

It made such findings without direct evidence as to when, where, and by whom they were coached.

It relied on inferences without applying the test to justify drawing such an inference.

There was no evidence at all suggesting that the witnesses were coached. Coaching is a positive act and the prosecution did not lead evidence on the form, manner, and timing of such coaching.

Counsel for the applicant attacked the court a quo for making a finding that the security guards had a motive to lie in order to protect their boss.

The finding was made in 2016 when both guards were no longer employed by the applicant.

Counsel for the applicant further submitted, that, the court a quo erred in accepting Mirirai Chiremba's evidence that he was made to sign a memo, backdating the return of the gun, under duress by the applicant, when there was no documentation confirming the return of the gun by the applicant on the date so alleged.

He (Mirirai Chiremba) failed to explain why he kept the gun in his office from August 2010 until the trial of the accused in 2016 in circumstance where the applicant had ceased to be his supervisor.

No submissions were made in respect of leave to appeal against sentence.

I will take it that the applicant has abandoned the issue.

SUBMISSIONS BY THE FIRST RESPONDENT

Counsel for the first respondent submitted, that, the intended appeal does not have reasonable prospects of success on appeal.

Regarding the impossibility of the act of rape, counsel for the first respondent submitted, that, the complainant gave a cogent explanation of how the rape was committed. Her evidence was not successfully challenged under cross examination. There was also medical evidence to prove penetration. Thus, the averments relating to the absence of actus reus are misplaced.

He further argued, that, the trial court satisfactorily related to the alleged inconsistencies in the prosecution's case. He also submitted, that, the trial court properly dealt with the issue of credibility of witnesses and the threshold of proof beyond reasonable doubt in a balanced manner.

Counsel for the first respondent further submitted, that, the court dealt with the issue of the applicant's alibi and rejected it as the defence witnesses credibility failed during cross-examination.

The record is replete with proof beyond a reasonable doubt that the applicant's alibi was not true.

There was the evidence of the security guards who disowned the entry in the Occurrence Book. It recorded only the applicant's movements.

There was the evidence of Mirirai Chiremba who met with the applicant at Chisipite Shopping Centre on the morning of the rape.

The applicant failed to explain why he handed over the gun on a Sunday.

THE LAW

The factors which must be considered in an application of this nature were discussed in the case of Chikurunhe v Zimbabwe Financial Holdings SC10-08…, where the Court held that:

“The party seeking leave must show, inter alia, that, he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

Therefore, it is important to assess whether or not the appeal has good prospects of success.

APPLICATION OF THE LAW TO THE FACTS

The applicant's grounds of appeal are an attack on the factual findings of the trial court and its assessment of the credibility of witnesses.

In confirming the applicant's conviction, the court a quo found these findings to be rational.

The questions of whether or not the applicant was at the Mandara residence at the time of the offence, or whether the defence witnesses were coached, and whether the applicant used the gun in the commission of the offence, are enquiries of fact.

It is trite that an Appellate Court is slow to interfere with the factual findings of a lower tribunal.

The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC47-09 as follows:

“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

See also Zvokusekwa v Bikita Rural District Council SC44-15.

In Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a vTrack & Anor SC59-16…, it was held that:

“The position is now settled, that, an Appellate Court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the Appeal Court will not interfere. This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At 670, KORSAH JA remarked:

'The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion…,.'”

It is also an established principle that an Appellate Court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC78-14…, where the Court remarked as follows:

“As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility. However, as was observed in Santam BPK v Biddulph (2004) 2 All SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.”

I want to zero in on how the trial court dealt with the evidence of the defence witnesses.

The applicant raised the defence of an alibi.

He led evidence from witnesses in support of his defence that he was not at his Vainona home on the date and time when the alleged rape was committed.

The trial court, in dealing with the evidence of defence witnesses, stated, that, the credibility of the witnesses in question was attacked by the prosecution mainly on the ground that they had been coached by the applicant on what to say.

The other ground of attack, on the credibility of Cletos Kereke, Anna Muswapadare and Patience Muswapadare was that their statements were all commissioned by the same legal practitioner on the same day.

It is common cause, that, the statements of Cletos Kereke, Patience Muswapadare, Anna Muswapadare, Vincent Muswapadare, were all sworn to on 10 August 2010 and were commissioned by a legal practitioner by the name Takudzwa L. Takawira.

These four witnesses stated, that, they were called to a police station in Borrowdale on 10 August 2010 and the police interviewed them on this matter. As they were giving their answers, the police were typing out, and, after that, the police then gave them the statements to go and have them commissioned by a commissioner of oaths of their choice.

They said that they did not meet each other at Borrowdale Police Station neither did they meet at Takudzwa L. Takawira Chambers.

Each of them independently went into town to have his or her statement commissioned, and, by coincidence, they all found themselves at Takudzwa L. Takawira's office at different times.

The trial magistrate found this amiss.

There was no satisfactory explanation as to why the police would record their statements in affidavit form and refer them for commissioning elsewhere when they could have commissioned them as they did with the applicant's affidavit.

He further found, that, it could not be coincidence that all the witnesses independently got into town and ended up at the offices of the same legal practitioners for commissioning of their affidavits.

He concluded by stating:

“The above proves to me, beyond any reasonable doubt, that these witnesses were lying as regards how their statements were recorded and commissioned. There is no other reason for lying on these aspects other than that their statements were pre-recorded before these witnesses went to the police. Even accused's affidavit statement was pre-recorded; this is clear from the declaration by the officer in charge who recorded the statement, and, I quote:

'I certify that the above statement was made freely and voluntarily by MUNYARADZI KEREKE who was in his sound and sober senses and tendered his prepared affidavit statement through his legal practitioner Tawanda Herbert Chitapi.'

The question is: why these witnesses would pre-record their statements before they went to police, and, why they would lie about this fact to the court?

There is only one reasonable conclusion: that someone influenced them on what to write in the statements and they did not want the court to know about the fact - the only reasonable conclusion is that the accused is the one who influenced them.

I draw the above inference because that is the only reasonable inference which can be drawn from the proved facts which I have stated above: see S v Marange and Others 1991 (1) ZLR 244 SC; R v Vhera 2003 (1) ZLR 668.

See also SCHWIKKARD at p530; also S v Vhera 2003 (1) ZLR 668.

I therefore agree with the prosecution's submission, that, the witnesses mentioned above were influenced on what to say.

The court should therefore never put any reliance on influenced witnesses.

It is clear the accused influenced them.

This will also tend to support complainant's case that she is telling the truth; see S v Chigwada SC206-88; S v Katerere SC55-91.”

The court a quo found, that, the trial court's finding, that the applicant was not at the Mandara residence on the day in question, was unassailable. It found that the trial court, after a careful and detailed analysis of the defence witnesses evidence, properly rejected the defence of the alibi as false. The defence witnesses testimony was properly rejected on the basis of the anomaly that the statements were commissioned by one lawyer on the same date. That was proof of coaching.

The the applicant's complaint is that the trial court rejected the alibi witnesses evidence on the basis that they were coached when there was no direct evidence of that. It relied on inferences without applying the laid down test.

That their evidence, being in affidavit form, and having been commissioned by the same legal practitioner, is evidence of coaching is so shocking that no other court would arrive at the same decision, so it was contended.

The test for the proper use of circumstantial evidence was laid down in R v Blom 1939 AD 188…, (quoted with approval in Moyo v The State SC65-13) where it was stated:

“In reasoning by inference, there are two cardinal rules of logic which cannot be ignored:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then, there must be a doubt whether the inference sought to be drawn is correct.”

A court intending to rely on such evidence must ask itself a few questions:

The first one is what the proved facts are.

In casu, if the trial court had asked itself the above question, it might have arrived at a different conclusion.

The prosecution did not lead evidence to controvert the position stated by the defence witnesses regarding the recording of their statements. The issue arose during the cross-examination of the defence witnesses. The prosecution had not laid a basis for putting in issue what the defence witnesses said happened.

As was correctly submitted by counsel for the applicant, coaching is a positive act.

Evidence has to be led as to the form, manner, and timing of such coaching.

In casu, no such evidence was led.

It appears the finding that the witnesses were coached was not based on demeanour but on probabilities.

The Supreme Court, in such a situation, will be in the same position as the trial court regarding the drawing of the pertinent inferences.

The point was made in Minister of Safety and Security and Others v Craig & Others NO 2011 (1) SACR 469 (SCA)…, where the following was stated:

“Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness demeanour, but predominantly upon inferences and other facts, and upon probabilities. In such a case, a court of appeal, with the benefit of the full record, may often be in a better position to draw inferences,”

In my view, this is the situation that pertains in casu.

The trial court rejected the evidence of the defence witnesses mainly on the basis of inferences and probabilities and not on the basis of their demeanour.

The Supreme Court, with the benefit of the full record, may well be in a better position to draw the suitable inferences.

The test to be used in considering the plausibility of the defence of alibi was stated in R v Hlongwane 1959 (3) SA 337 (AD); in that case, HOLMES AJA had this to say at 340H:

“The legal position with regard to an alibi is that there is no onus on an accused to establish it; and, if it might reasonably be true, he must be acquitted: R v Biya 1952 (4) SA 514 (AD). But, it is important to point out, that, in applying this test, the alibi does not have to be considered in isolation.”…,.

Further on, at 341A-B, the court held:

“The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court's impressions of the witnesses. In Biya's case supra GREENBERG JA said at p521:

'…, if, on all the evidence, there is a reasonable possibility that this alibi evidence is true, it means that there is the same possibility that he has not committed the crime.'”

Applying that test to the facts of the present case, the question is whether there is a reasonable possibility that the alibi evidence is true.

This is an aspect where the applicant might have prospects of success.

However, whether or not the success of his argument on this specific aspect will have the effect of upsetting his conviction is a matter that I am inclined to leave for determination by the Supreme Court.

I am loathe to pronounce on it as a single judge in chambers.

For that reason alone I am inclined to grant the applicant the relief that he seeks so that the Supreme Court determines the impact, if any, of this particular aspect of his argument, on the propriety of his conviction.

Accordingly, I make the following order:

1. The applicant is granted leave to appeal against the decision of the High Court, under judgment HH374-19, to the Supreme Court.

2. No order is made as to costs.

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.

The appellant was convicted after a protracted trial in which evidence was led from several witnesses.

As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court.

It is also important to state the factual background behind the institution of the private prosecution by the complainant's guardian.

When the allegations of rape were made at the police station, against the appellant, the officers who were handling the matter would be transferred, the docket would be referred to such other offices as would give the impression that the appellant could not be prosecuted.

The long and short of the events surrounding the matter is that, ultimately, the office of the Prosecutor General declined prosecution in the matter. It also did not issue the certificate indicating this, as it was obliged to do in terms of the law: see section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9;07].

When the complainant's guardian applied for a certificate to confirm this position, that certificate was not issued as a matter of course.

The complainant's guardian had to seek the intervention of the courts to get the office of the Prosecutor-General to issue the appropriate certificate authorizing a private prosecution of the appellant.

This explains why, even before this Court, the State has folded its arms, when, in normal circumstances, it ought to have vigorously demonstrated, through the office of the Prosecutor General, commitment to the duty to protect, uphold, respect, and defend the rights of a child to equal protection of the law.

Zimbabwe has ratified most, if not all, regional and international treaties and conventions on human rights. These international conventions, which bind the State, spell out obligations of State parties: see the. International Covenant On Civil and Political Rights, 1966; International Covenant on Economic and Social Rights, 1966; the African Charter on Human and Peoples Rights, 1981; Convention on the Rights of the Child, 1990; the African Children's Charter, 1990.

The Constitution of Zimbabwe gives effect to these and other rights either in its provisions or through the legislative framework made thereunder: see sections 56, 68, and 69 of the Constitution; see, generally, the Criminal Procedure and Evidence Act [Chapter 9:07].

One of the important rights enshrined in the Constitution is that of equality before the law.

The complainant had to resort to private prosecution to enforce her rights leading to the present proceedings - without State assistance.

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

The applicants were arraigned before the magistrate sitting at Plumtree facing two counts of stock theft as defined in section 114(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted and sentenced to an effective sentence of eighteen years each. The applicants have noted an appeal against both conviction and sentence.

They now seek to be released on bail pending appeal.

Both applicants were legally represented during the trial.

The evidence presented to court revealed, that, the second applicant was arrested at a roadblock at Maphisa after police manning the roadblock observed that there had been a tempering on the brand marks on the beasts in question. The second applicant implicated the first applicant and informed the police that he was merely acting as an agent for the first applicant, who was the real owner of the beasts in question.

The evidence led at trial was fairly straightforward.

During the month of January 2013, the complainant penned off his cattle for grazing at Mazwi lands leaving them to graze unattended. When the complainant rounded up his cattle, he discovered that two beasts were missing. He made a report to the local village head and to the police. The description of the beasts intercepted at the police roadblock fitted the one given by the complainant, and, subsequently, the complainant positively identified his stolen cattle.

After a lengthy trial, the trial magistrate concluded, that, the State had proved its case beyond a reasonable doubt and convicted the applicants.

The first applicant claimed that the beasts in question lawfully belong to him. He claimed that he had inherited the cattle from his mother, who at the time of the offence, had died. He further claimed that his late mother had acquired the beasts as payment for services rendered. He stated that his late mother was a traditional healer and charged her patients by demanding cattle for payment.

The problem with the defence is that no-one witnessed the transactions alleged by the first applicant.

At the very least, the first applicant should have led evidence to show that his defence was reasonably possibly true.

A policeman based at Sun Yet Sen police station was called by the State to testify.

He gave evidence to the effect, that, he had tried to verify the claims made by the applicants by visiting the village where the beasts were stolen. The policemen established that Hilda Nyathi was the mother of the first applicant. He also confirmed that Hilda Nyathi did not have any cattle and that she did not have a stock card. The policemen interviewed the Village Head who confessed to have no knowledge of any cattle belonging to Hilda Nyathi. In any event, it later transpired, during the course of investigations, that, Hilda Nyathi conducted her healing sessions in Bulawayo and had no rural home in that village. Hilda died at her mother's homestead where she was buried. The dip attendant was also interviewed and denied any knowledge of cattle belonging to Hilda Nyathi.

The applicant's defence was further complicated by the fact that neither of the applicants used their ID cards or stock cards to clear the beasts in question. They opted to use the stock card of one Diana Nyathi.

At the time the cattle were transported to Bulawayo, the first applicant decided to send the second applicant to convey the cattle. The reason he gave for not transporting the cattle himself was that he had no ID card.

It is my view, that, the trial court did not err in convicting the accused because of the overwhelming evidence.

The applicants contend, that, there are bright prospects of success on appeal because the court erred in accepting the evidence of the investigating officer since some of the enquiries were made after the trial had already commenced.

In applications for bail pending appeal, there are two important considerations which our courts have laid down. Bail ought to be granted pending appeal where:

(a) There are reasonable prospects of success on appeal.

(b) Where there is no danger of the applicants absconding.

In the case of S v Williams 1980 (1) ZLR 466, FIELDSEND CJ remarked as follows:

“…, the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. In my view, to apply this test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter-connected because the less likely are the prospects of success the more inducement there is on applicant to abscond. In every case where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail.”

See also the case of The State v Tengende 1981 ZLR 445.

I am aware, that, in applications for bail pending appeal all the applicant has to show is that there are reasonable prospects of success. In other words, bail ought to be granted where the applicant makes out a reasonably arguable case.

In the instant case, there can be no doubt that the prospects of success are virtually non-existent.

The second applicant was caught red-handed with the stolen beasts. The beasts were destined for slaughter.

I am of the view, that, the applicants are not good candidates for bail pending appeal.

The applicants have been sentenced to lengthy terms of imprisonment. Granting the applicants bail, given the circumstances of the case, would simply be an inducement for them to abscond.

In the result, the application is hereby dismissed.

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released....,.

In our view, there were aspects of the evidence of both Detective Sergeant Mutambi and Karemba which were credible and others which were disquieting....,.

We were satisfied by the reasons they proffered for arresting the two accused persons parents, but not the young brother, when their target all along were the two accused persons.

The father was purportedly arrested on suspicion that he knew something because he was violent towards the detectives while the mother may have been arrested for the comments she made to the missing man's wife on 5 February 2010.

The young brother was ostensibly arrested to ascertain what he knew about the missing man.

We believed that their release, soon after the two accused person surrendered themselves, suggested that they were used as human bait.

It was therefore improper for the detectives to employ such illegal and underhand investigative techniques.

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The Missing Man and Common Cause Evidence

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man. He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem.

Confirmed Warned and Cautioned Statements

The first accused's confirmed warned and cautioned statement together with the record of the proceedings was produced as exhibit 1 while that of Accused 2 and its record was produced as exhibit 2.

They were recorded by Detective Sergeant Karemba and witnessed by Detective Sergeant Charuma on 16 March 2010, the day following the indications.

On 17 March 2010, an interpreter based at Bindura Magistrates Court confirmed the accuracy of the interpretations.

They were both confirmed by a magistrate at Bindura Magistrates Court on 18 March 2010.

In exhibit 1, the first accused admitted to murdering the missing man.

He was wearing a white shirt, blue work-suit tied to his waist and a black pair of trousers and black gumboots, a khaki cap and had a sack with loose tobacco and half bar of soap.

He regarded him as the spy from Billabonge Farm on a mission to entrap him for the theft of aluminium pipes.

The man pretended to be returning to Nyamaropa but took the Billabonge road after Accused 1 went out of sight.

He related the weapons he used on the missing man and the injuries he sustained.

He stated how the missing man reached Chemhanza Hill and how and when he died.

He described how the missing man came to be a pile of bones and ashes on the hill slopes and in the cave.

He stated what became of his pot.

The first accused indicated, during confirmation proceedings, that, he sustained injuries on his ankles from leg irons and on his back from assaults perpetrated by members of the CID.

The magistrate, nonetheless, confirmed the statement after the accused maintained that these assaults had not influenced him to make the statement.

The second accused gave a more detailed statement.

He admitted the charge. His confession followed the general outline of his co-accused. He described where and with whom he found the missing man and his attire of a white shirt, grey pair of trousers, and black gumboots. He related his weapons of choice and the injuries sustained by the missing man. He stated how he died and the fate that befell his remains and pot.

The two detective sergeants were subjected to searching cross-examination.

They disputed ever subjecting the accused to torture and assault but admitted conducting intensive interrogation which elicited contradictory versions from the two.

They averred, that, the invitation extended to the Village Head and his aide for indications was in accordance with the tenets of community policing which encouraged the police to involve local leaders in policing areas under their jurisdiction.

They disputed being present in court when the warned and cautioned statements were confirmed.

The Versions of the Accused Persons

In his Defence Outline, the first accused stated, that, the man who came to collect the pot went to his homestead while he went to protect his crops from marauding baboons.

He averred that both the indications and confirmed warned and cautioned statement were induced by physical assaults and torture. He described how the detectives assaulted him and his co-accused on the back and under his feet with baton sticks, planks, and open hands and on his testicles with rubber bands causing them to swell and pass blood stained urine for a period of three (3) weeks for which he was treated at Parirenyatwa Hospital.

In his evidence in chief, he intimated that he spent the whole of that Sunday in his field and was not at the tuck shop.

He voluntarily surrendered himself to the police, was detained, and intimidated by Detective Sergeants Mutambi, Karemba and Charuma in a room with blood-stained walls.

He was then placed in leg irons and ordered to squat. A metal rod was placed under his knees. He was lifted and placed on a table and hanged upside down. He was swung on this bridge and hit under his feet and back. He was shot on his testicles with rubber bands.

The ordeal lasted for about 45 minutes.

He was dumped in the holding cells. His co-accused was taken to the same room and underwent the same ordeal.

He was treated for leg and back injuries at Bindura Prison.

Thereafter, he signed the document that was placed before him without any further ado.

The court record from Bindura Magistrate Court shows, that, they were both placed on initial remand and advised to apply for bail at the High Court on 17 March 2010 and did not register any complaints against the police. They were remanded in prison custody from where they returned to court on the following day for the confirmation of their statements. He did not advise the magistrate of his ordeal in fear of the threats that had been issued against him but admitted making the statements of his own free will.

In regards to the indications, he intimated that he was forced to pose for the pictures in exhibits 10 to 16 by the photographer and that exhibit 3, the smashed pot photographed in exhibit 15 was run over at and collected from his homestead and planted on the hill by the police on the day they went for indications.

He said he was assaulted during the indications.

He averred the deceased's wife, had, on an earlier occasion, rejected exhibit 3 as her pot.

He conceded that he was at the tuckshop when the man described by Pias Muchambo came but identified him as a Mr Foya of Chemhanza Village. He had a dispute with him over the length of a hose pipe he had purchased from him, which was resolved by his co-accused who took them to his garden to measure it.

He admitted, in cross examination, that the pot was collected from his homestead but denied any knowledge of the deceased.

Contrary to his insistence that he was treated at Bindura Prison, the Assistant Principal Correction Officer in charge of clinic records at that prison did not find any record of the treatment. He however produced exhibit 18, an extract of the treatment received by Accused 2 at that prison.

The second accused categorically denied any knowledge of the deceased.

He participated in the search of the missing man together with other youths. The missing man's family was led by a spirit medium, which focused the search around the first accused's garden and homestead. He believed that the spirit medium led the police to Chemhanza Hill.

He described the bridge technique torture he underwent at the hands of the investigating team after he voluntarily surrendered himself to the police. He was hit by baton sticks under his feet and by a soft drink bottle on the knees and ankles and by a plank on his back. He was also shot on his testicles with rubber bands.

He admitted to the offence to stop the torture.

His version, in regards to how they went for indications, was similar to that of his co-accused.

The pot, exhibit 3, and flattened tin, exhibit 8, both photographed in exhibit 15 were collected from the first accused's home and planted at the scene.

He was forced to hold a stone while his picture was taken at Chemhanza Hill in a bid to dramatize the situation.

He suspected the police made a prior visit to the scene on the day they arrested his mother and young brother.

He stated that the indications were choreographed and the photo sessions stage-managed by the investigation team.

He further stated that he admitted the contents of the confirmed statement before the magistrate in order to forestall any possible torture that would have followed his denials.

He was treated in prison for assault injuries recorded in exhibit 18, the outpatients register held at Bindura Prison that was produced by the nurse in charge of the prison clinic, Assistant Principal Correctional Officer Norman Kusosa.

The accused was examined on 17 March 2010 by Chigumete, a nurse based at the prison at that time. He complained of a painful right leg arising from an assault by CID and had a wound on the right limb arising from assault. The nurse noted “one wound on limb due to assault.” He administered some aspirin and cloxa tablets and applied betadine dressing on the wound.

The diagnosis and medication showed that the second accused was treated for what he alleged were assault injuries....,.

The conduct of the investigation team was the subject of strident criticism by both counsel for Accused 1 and counsel for Accused 2.

They submitted, that, the accused persons were subjected to intense torture and assault between the period they handed themselves to the police and the time they were taken for indications.

Counsel for the State submitted, that, the indications were conducted and the warned and cautioned statements recorded freely and voluntarily without any undue influence having been brought to bear upon each of the accused persons.

It was common ground that the warned and cautioned statements, exhibits 1 and 2, were confirmed. They were accordingly admitted in evidence in terms of section 256(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07], which read:

“256 Admissibility of confessions and statements by accused

(1) Any confession of the commission of an offence and any statement which is proved to have been freely and voluntarily made by an accused person without his having been unduly influenced thereto shall be admissible in evidence against such accused person if tendered by the prosecutor, whether such confession or statement was made before or after his arrest, or after committal and whether reduced into writing or not: Provided that —

(i) A certified copy of the record produced in terms of subsection (1) of section 115B shall be admissible in evidence against the accused;

(ii) Any information given under any enactment which provides a penalty for a failure or refusal to give such information shall not, on that account alone, be inadmissible.
[Subsection amended by section 19 of Act 9 of 2006.]

(2) A confession or statement confirmed in terms of subsection (3) of section one hundred and thirteen shall be received in evidence before any court upon its mere production by the prosecutor without further proof:
Provided that the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto, and, if, after the accused has presented his defence to the indictment, summons or charge, the prosecutor considers it necessary to adduce further evidence in relation to the making of such confession or statement, he may re-open his case for that purpose.”

The confirmation tended to portray the two detectives as credible witnesses in regard to how the statements were recorded. The onus of establishing, on a balance of probabilities, that the statements were not made freely and voluntarily, even though they were confirmed, lay on each of the accused persons.

The accused alleged that they were stripped of their clothing and taken to a room that had splurges of what they were informed was human and not animal or fowl blood on the walls. They were each in turn subjected to the bridge torture technique.

This method involves first tying the victim's legs together, preferably with handcuffs. The victim is forced to squat and an iron rod, which is able to hold his weight, is inserted underneath his knees. He is then lifted upside down by the rod and hanged between two tables. The two tables and the rod mimic a bridge, hence the name. The hanging causes an abnormal flow of blood to the head and face and disorientation to the victim.

The accused persons averred, that, in that helpless state they were each subjected to painful and indiscriminate assaults under their feet and on their backs, and, for Accused 2, on the ankles and knees by all manner of weapons that included baton sticks, planks, and soft drink bottles and shot on their testicles by rubber bands.

Thereafter, they were driven to Accused 1's homestead where police ran over the black pot, exhibit 3 and the flattened tin exhibit 8 and collected them before driving them to Chemhanza Hill.

On the following day, they readily signed the documents that were place before them.

They were taken to Court on 17 March 2010. They did not disclose to the remanding magistrate that they had been assaulted by the police. They were remanded to prison and asked to apply for bail at the High Court.

On 18 March 2010, they returned to Court for the confirmation of their statements. They had been warned of the terrible consequences that a rejection of the statements in court would evoke, so they readily went along with the ministrations of the confirming magistrate.

In their respective evidence, and under cross-examination, the two detectives who testified disputed the allegations of torture and assault and maintained that they questioned the two intensely and separately until they confessed the crime.

Their breakthrough came when the two gave conflicting versions on whether they had dealt with the missing husband on the fateful Sunday or not. All resistance broke down when each was confronted with their respective inconsistencies.

We were satisfied, that, the two accused persons established, on a balance of probabilities, that they were assaulted by the investigation team before they went for indications. They, however, failed to establish that they were tortured using the bridge method.

The injuries they described to the confirming magistrate, and Bindura Prison nurse, were disproportional to the brutal assaults they ascribed to the bridge method. Their legal practitioners did not articulate both the bridge torture technique and the detailed brutal assaults attributed to this torture method to the two police detectives during cross examination. The accused persons also failed to properly describe the torture method in question.

We were however satisfied that they were still smarting under the effects of the assaults they described to the magistrate and prison nurse when they made their warned and cautioned statements and appeared for confirmation. Our satisfaction was derived from three factors:

(i) The first was that they informed the confirming magistrate that they had injuries sustained in police custody.

In respect of the first accused, the confirming magistrate cryptically wrote that he sustained injuries “from the handcuffs and on the back assault from CID but this did not affect my statement.”

In respect of Accused 2, he wrote that the injury “was because of the leg irons.”

In our view, the confirming magistrate abdicated his responsibilities towards the accused persons and the criminal justice system.

These responses should have served to alert the confirming magistrate of the dangers of confirming these particular statements without investigating the circumstances in which the handcuffs and leg irons caused these injuries.

It is a notorious fact that leg irons and handcuffs do not normally cause injury unless they are deliberately tightened by the handcuffing officer.

Our view is that the deliberate tightening of handcuffs or leg irons is inconsistent with the exercise of volition.

Our view is that the injuries were, in the main, caused by the tightening of the leg irons on each accused person.

Assaulting a suspect is not only a crime but does negate and undermine the voluntariness of any resultant confession. After all, it is illogical to assault a suspect who is admitting the charge.

The suspicion of the magistrate should have been further aroused by the caveat advanced by the first accused, that, despite the assault, he freely made the statement.

The evidence of the Assistant Principal Correction Officer in charge of Bindura Prison Hospital, and exhibit 18, clearly demonstrated that the second accused was treated for assault injuries at Bindura Prison.

However, the injuries, in our view, were consistent with tightened leg irons.

Thus, even though he did not find any reference to the treatment administered on Accused 1, we were satisfied that both of them were assaulted in the same way.

It is for these reasons, that, we were satisfied that the confessions that led to Chemhanza Hill and the recording of the warned and cautioned statements, and the confirmation proceedings, were extracted through these assaults.

We did not believe the investigations team's platitudes of innocence. They were incredible and untruthful witnesses in this regard.

We will therefore disregard the contents of the confirmed warned and cautioned statements in our determination of whether or not the accused persons committed the offence they stand charged with....,.

In our law, confessions that are extracted and extra curial statements that are made through unlawful means are inadmissible in evidence.

The police must obey the law, and, all statements made, whether confirmed or not, outside the strictures of the law are illegal and should not be considered by a court as evidence against the maker.

The law prohibits us to consider exhibits 1 and 2 as evidence against the accused persons, however self-incriminating they may be against them.

However, section 258(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] admits into evidence anything that was pointed out by any person under trial even though the pointing out was in consequence of an inadmissible confession or statement. The section provides that:

“258 Admissibility of facts discovered by means of inadmissible confession

(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which, by law, is not admissible against him on such trial.”

We were mindful of the construction rendered to this section by McNALLY JA in S v Nkomo 1989 (3) ZLR 117 (S)…,.

We did not find that the assaults that they were subjected to amounted to torture.

The evidence established that they were not forced to point at any spot on the hill. They voluntarily took the police to each spot on the hill and uttered the accompanying words connected to each spot freely and voluntarily.

We find that they pointed out the scene of the crime and the various positions and items that were connected to the commission of the crime freely and voluntarily.

The detectives did not have foreknowledge of the scene of crime or its state.

A pot similar to the one the wife left at Accused 2's residence for repairs was recovered. The other dress apparel like the buckle, the piece of rubber and piece of worksuit similar to those worn by the deceased on the day he went missing were also recovered as a result of the pointing out of the accused persons.

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.

The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.

The appellant was convicted of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 4 years imprisonment of which 1 year imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGS133=21 through the Clerk of Court at Chivi on or before 31 August 2019.

The appellant has to serve an effect sentence of 2 years imprisonment.

At the time of the hearing of the appeal, counsel for the appellant submitted, that, the appellant, who has been in prison for about 4 months, has already paid the restitution in the sum of US$471 and RTGS133=21.

The facts of this matter, which give rise to this appeal, are largely common cause save for the appellant's role in the commission of the offence.

The appellant was jointly charged with three other accomplices Cordination Magavhe, aged 28 years, residing at Chivi Growth Point; Babra Masvosvere, aged 20 years, residing in Beitbridge; and Shelter Ezra, aged 28 years, residing at Chivi Growth Point.

The other three accomplices, Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant.

The appellant is the only one who denied the charge hence the matter proceeded to trial.

The offence of fraud in this matter was committed with surgical precision.

The three accomplices, Cordination Magavhe (Cordination), Barbra Masvosvere (Babra), and Shelter Ezra (Shelter) together with the appellant are said to have hatched a plan to defraud Mukuru.Com Money Transfer Company branch situate inside N. Richards Wholesale at Chivi Growth Point.

As already said, the only disputed fact is the appellant's role or involvement in this criminal enterprise as the appellant denied any role or knowledge of the commission of the offence.

Cordination Magavhe, as his name denotes, was the co-ordinator of this whole criminal enterprise as he was an ex-employee of Mukuru.Com Money Transfer Company at Chivi Growth Point. He provided a clipboard, counterfeit audit papers titled Mukuru.Com, 2 T-shirts inscribed 'Mukuru Send Money Home' and some cash box keys which he had stolen while employed at Mukuru.Com Transfer Company branch situate at Chivi Growth Point. It is Cordination Magavhe who briefed the other accomplices of the tactics to be employed in committing the fraud.

Barbra Masvosvere was assigned the prominent role of executing the fraud and stealing of the money at Mukuru.Com Transfer Company branch at Chivi Growth Point. This is probably because she was the only one who was not a resident at Chivi Growth Point as she resides in Beitbridge and was therefore not known at Chivi Growth Point.

The appellant's role, which he disputes, is that he provided a laptop from which the counterfeit Mukuru.Com fraudulent documents were generated and acted as a sentinel during the execution of the offence by Barbra Masvosvere.

Shelter Ezra, again, as her name denotes, provided shelter for the culprits as the plan to commit this fraud was polished up at her residence at Chivi Growth Point; she offered accommodation to Babra and provided a handbag Babra used.

The fraudulent plan was executed in the following manner:

On 11 January 2019, Babra proceeded to the Mukuru.Com Company branch at Chivi Growth Point inside N. Richards Wholesale where she posed as an auditor from Mukuru.Com Company who had come to carry out official duties at the branch. She was wearing the t-shirt inscribed “Mukuru Send Money Home”; was carrying a handbag and a clipboard attached with the fake or counterfeit Mukuru.Com Company documents.

Babra carried herself as an auditor from Mukuru.Com Company Head Office in Harare who had come to perform her duties at the Mukuru.Com Company branch at Chivi. She approached the complainant, Raviro Chirape, a cashier employed at the Mukuru.Com Company branch at Chivi Growth Point. Babra then proceeded to carry out 'an audit' inside the booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape believed Babra was an auditor. Babra proceeded to check the financial books and cash on hand in order to carry out the reconciliation.

At the material time, there was US$5,475 and $533 bond notes which Barbra counted with Raviro Chirape.

After about an hour, Barbra asked the cashier, Raviro Chirape, to go and buy for her some water to drink. When the cashier went to buy the water, Babra simply took the money at the Mukuru.Com Company branch. After the cashier returned, Babra later left with the cash and caused the cashier to complete fake audit forms which showed that Babra had carried out audit duties unaware that Babra had stolen the money in her absence.

The culprits then regrouped at Shelter's house and proceeded to Zvishavane to share the loot.

The matter came to light the same day when Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi Growth Point, later realised that all the money in her possession had been stolen.

The CID details from Mashava later on investigated the matter, and, on the same day, arrested Cordination and the appellant with the help of CCTV at N. Richards Wholesale at Chivi Growth Point.

Upon their arrest, CID details recovered United States dollars from Cordination and the appellant.

Further, an HP laptop bearing serial numbers of counterfeit documents used by Babra when she misrepresented herself to Raviro Chirape the cashier at Mukuru.Com Company Branch at Chivi Growth Point as an auditor, were recovered.

Thereafter, Cordination led to the arrest of Babra, who had returned to Beitbridge, and also accused Shelter.

The amount of US$760, $67 bond notes was recovered from Babra and US$1,800 from Shelter. Both the appellant and Cordination were found with some cash.

Further, the t-shirt inscribed 'Mukuru Send Money Home'; the clipboard; a purse; the attire Babra was wearing posing as an auditor were recovered at Shelter's residence thrown inside a blair toilet.

The total cash stolen is US$5,475 cash and $533 bond cash. The amount recovered is US$3,589 cash and $75 bond cash.

The appellant gave a very lengthy Defence Outline covering 23 paragraphs.

In brief, the appellant denied conniving to commit the fraud with Cordination, Babra and Shelter. The appellant said the only person he knew was Cordination and he was not known to Babra and Shelter. The appellant denied taking any part in the commission of the offence. He denied playing any role in the commission of the offence or getting any share of the loot.

The appellant, however, admitted to the following facts, which are;

(a) That, he is a very close friend of Cordination Magavhe, an ex-employee of Mukuru.Com Company branch at Chivi.

(b) That, he is well known to the cashier, Raviro Chirape, at Mukuru.Com Company branch at Chivi Growth Point as he frequents N. Richards Wholesale or transacting at the said Mukuru.Com Company branch.

(c) That, on the day in question, on 11 January 2019, he indeed was at N. Richards Wholesale Chivi Growth Point where the Mukuru.Com Company Branch is situated hence his images were captured on CCTV. However, the appellant said his mission at those premises was not to carry out any surveillance in furtherance of any criminal conduct but to meet a female friend, Eustina Mbaradze, and for shopping purposes inside N. Richards Wholesale.

(d) That, on the way into N. Richards Wholesale he passed by the Mukuru.Com booth which is by the entrance and greeted the cashier who is the complainant, Raviro Chirape.

(e) That, the fraudulent documents used by Babra to commit the fraud were generated from his HP laptop. The appellant, however, said this was done by his friend Cordination Magavhe who had unfettered access to his laptop which had no password and that this was done without the appellant's knowledge or approval.

(f) That, he was found in possession of money stolen from Mukuru.Com Company branch at Chivi Growth Point, being United States Dollars. The appellant, however, said he had been given this money by his friend, Cordination Magavhe, who owed the appellant some money and that it was not the appellant's share of the loot.

After hearing evidence from the complainant, Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi, Barbra Masvosvere, a convicted accomplice who had been properly warned, and the investigating officer, Nxumalo Mxolisi, all for the State; and from the appellant and his defence witness, Cordination Magavhe, also a convicted accomplice, the court a quo found in favour of the State and dismissed the appellant's version of events or evidence as false.

Irked by this decision, the appellant approached this court, on appeal, and the grounds of appeal, in respect of both conviction and sentence, are as follows:

“GROUNDS OF APPEAL

1. RE: CONVICTION

1.1 The learned Magistrate erred in law when he convicted the appellant of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the absence of proof beyond reasonable doubt, particularly in that;

(a) He wrongfully made inferences from circumstantial evidence, which inferences were not the only reasonable inferences which could be made in the circumstances.

(b) He wrongfully relied on evidence of an accomplice in circumstances where the risk of false incrimination was very high and had not been eliminated.

(c) He wrongfully rejected the appellant's explanation in his defence which was probable in the circumstances.

1.2 WHEREFORE, appellant prays for the success of the appeal and for the setting aside of the decision of the court a quo convicting the appellant of the offence and substitution of the same with a verdict of Not Guilty.”

In relation to sentence, the appellant is of the view, that, community service should have been imposed in light of the mitigating factors which include, inter alia, the delay of 5 months in finalising the matter; that the appellant is a first offender; that half of the stolen money was recovered; that the amount stolen was not substantial; that the sentence imposed was within the threshold of 24 months effective sentence and that the appellant is a suitable candidate for community service.

I should commend counsel for the appellant, Mr Chivasa, for his detailed and well researched heads of argument. Equally so, I need to commend the learned trial magistrate for a very lucid judgment and a clear appreciation of not only the facts in issue but the law involved.

The simple task for this court is to assess, as regards conviction, if the court a quo properly applied the principles of circumstantial evidence and/or the liability of co-perpetrators.

The liability of co-perpetrators is provided for in section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This provision simply reinforces the common law principle or doctrine of common purpose which entails, that, for the doctrine of common purpose to apply in any case, it has to be proved that the accused did something to associate himself with the actions of the person who actually committed the offence knowing that the other person intended to commit the said offence or foreseeing that possibility; see State v Mubaiwa & Anor 1992 (2) ZLR 362 (S); State v Chauke & Anor 2000 (2) ZLR 494 (S)…,.

This position is well articulated by the esteemed author BURCHELL in South African Criminal Law and Procedure Volume 1, 3rd Edition…, wherein the learned author said;

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within the common design.”

In casu, if it is proved that the appellant indeed connived with Cordination Magavhe or Barbra Masvosvere or Shelter Ezra, or all of them, in perpetrating this fraud, the appellant's criminal liability, irrespective of his actual role, may be inferred on the basis of the doctrine of common purpose.

In specific terms, it is said the appellant agreed to commit this offence; that he provided the laptop used to generate the fraudulent documents; that he acted as a sentinel during the commission of the offence; and that he got the spoils of the loot.

This is however denied by the appellant, but the court a quo disbelieved him.

Babra's evidence is that Cordination, who was the brains behind this fraud, briefed her that the appellant would be engaging in surveillance during the execution of the actual fraud by Babra, as a sentinel, to ensure Babra's safety.

Indeed, Babra was given, by Cordination, and actually used, the fraudulent documents generated from the appellant's laptop.

In her evidence, Babra said that although she personally had not met the appellant, some person Cordination told her was the appellant would call her while she was executing the fraud giving her real time information of what was happening around the crime scene at Mukuru.Com Company premises at Chivi Growth Point.

Babra said after successfully executing the fraud, she met Cordination and Shelter after which they proceeded to Zvishavane to share the loot.

She said the other person she was told was the appellant was constantly calling them updating them on what was happening at Mukuru.Com Company branch at Chivi Growth Point in the aftermath of the commission of this offence. She said this person was identified by Cordination as the appellant and that the appellant had therefore not joined them specifically for that reason.

Lastly, Babra said as they shared the money, Cordination reserved another share for the appellant and returned to Chivi to ostensibly give the appellant his share.

Indeed, when police detectives first sighted Cordination, later that day, he was in the company of the appellant at Chivi Growth Point and the appellant was later found with part of the money stolen from Mukuru.Com Company that very day.

The assessment of the credibility of witnesses is within the domain or province of the court a quo.

Babra's evidence was that although she had not physically met the appellant at any stage, she was briefed that the appellant's role was to provide surveillance or act as a sentinel and that some other person indeed appraised her on the telephone on what was happening.

Indeed, it would have been desirable for the police to have checked the telephone records for all persons involved to verify Babra's evidence.

Nonetheless, such an omission, in my view, is not fatal to Babra's evidence. Babra was not known to the appellant. She is a convicted accomplice. She had nothing to gain by falsely incriminating the appellant.

The question which arises, therefore, is why would she go out of her way to fabricate the existence and role of a fourth player in the execution of this offence.

The court a quo found none and there is no such reason, in my view.

On that basis, she was found to be a credible witness and the danger of false incrimination was found to be none existent.

On the other hand, the same cannot be said for Cordination.

Despite later pleading guilty to this offence, Cordination, upon his arrest, in the early hours of 12 January 2019, denied any role in the commission of the offence - even after some US$307 had been found under his bed.

This can be gleaned from a copy of the police running diary log produced through the investigating officer.

Cordination denied ever being involved in this matter and said the money found in his possession was money given to him by his parents (see the version of page 52 recorded in Shona).

Apparently, he only admitted to the offence when police's evidence became overwhelming as investigations progressed.

When Cordination testified, he sought to exonerate the appellant alleging that the appellant played no role. He denied ever telling Babra that the appellant was involved and that the money he gave the appellant, stolen from Mukuru.Com, was to pay a debt owed to the appellant. He further said that he used the appellant's laptop to generate fraudulent documents without the appellant's knowledge.

In my respectful view, Cordination's evidence was properly rejected.

He is the appellant's friend and the two were very close. He admitted, under cross-examination, that he would naturally protect the appellant (see page 46 of the record). Most importantly, he initially lied to the police.

The court a quo was correct to reject his evidence and assess him as an incredible witness.

It is for the said reasons that the appellant's criminal liability was based on the doctrine of common purpose or a co-perpetrator.

The court a quo thus found, that, the appellant was at the scene of crime at N. Richards Wholesale; that he had knowledge of the offence or criminal act; that he worked in cahoots with the other accomplices, including Babra, by manifesting a sharing of common purpose in providing his laptop, acting as a sentinel, providing surveillance, and getting a share of the criminal proceeds.

The appellant, on that basis, has the necessary mens rea to commit the fraud; see S v Mgedezi & Ors 1989 (1) SA 687 (A).

The next issue to consider is the question of circumstantial evidence.

The celebrated case of R v Blom 1939 AD 188…, outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;

(i) That, the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn.

(ii) That, the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then, there must be doubt whether the inference sought to be drawn is the correct one; see also S v Tambo 2007 (2) ZLR 33 H; S v Marange & Others 1991 (1) ZLR 244 (S).

It is competent for a court to return a verdict of guilty solely on circumstantial evidence; see S v Shonhiwa 1987 (1) ZLR 215 (S); S v Vhera 2003 (1) ZLR 668 (H)…,.

The court a quo applied these principles to the circumstances of this case. The proved facts were juxtaposed with the appellant's explanation and the trial court concluded, that, the appellant's explanation cannot possibly be true.

The relevant facts which were considered are not in issue and are as follows:

(a) Cordination, who was the brains behind this fraud, is the appellant's close friend. This is admitted by the appellant. In fact, the appellant and Cordination were later seen together that very same day by the police.

(b) The appellant was present at the crime scene at the material time. This is confirmed not only by the CCTV but by the appellant himself. The appellant's explanation is that N. Richards Wholesale is a public place and that he wanted to see a friend there and to do some shopping. Indeed, that may be so. The appellant actually passed by the complainant's booth and greeted her.

(c) The appellant was found in possession of some of the stolen cash, in United States dollars, identified by the serial numbers, the very day the money had been stolen. Upon his arrest, the appellant, as per the investigating officer, said he had been given the money by his relatives. However, later, after the money had been matched with the serial numbers, he changed the story and said he was given the money by Cordination as payment for money he was owed by Cordination.

It is therefore clear the appellant was not consistent in explaining how he became in possession of the stolen money and had therefore told a lie on a material issue.

(d) The fraudulent documents used to commit the fraud were generated from the appellant's laptop. The appellant's explanation is that Cordination is the one who generated the fraudulent documents using the appellant's laptop as he had unlimited access to it and it had no password.

No further explanation is given as to why Cordination chose to use the appellant's laptop.

Indeed, each of those facts proven or not in issue, taken in isolation may, on their own, not lead to any adverse inference. However, when they are considered conjunctively, together with the accused's own explanation, a proper adverse inference. in my view, was made.

The close friendship the appellant had with Cordination is admitted.

Is it plausible that the appellant would be paid his debt with the stolen money the very day it was stolen?

Why would the appellant lie to the police about the source of this money initially?

One would raise eyebrows as to why Cordination would choose to use a dear friend's laptop to generate fraudulent documents and why the appellant did not know about it. The appellant's presence at the crime scene dovetails with Babra's evidence as regards the appellant's role.

In my view, the court a quo assessed the credibility of all the witnesses and made findings of fact.

The appellant's evidence, or version of events, was rightly rejected.

The principles of law applicable to the facts of co-perpetrators or acting in common purpose, together with circumstantial evidence, are not only well articulated but properly applied to the facts of this case. I find no misdirection at all on the part of the court a quo. The threshold or degree of proof required in criminal matters was achieved.

The appellant's conviction is unassailable in the circumstances. Consequently, the appeal against conviction cannot succeed.

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

The accused, who resides in Village 25, Chief Sengwe, Chiredzi, is facing two counts.

In Count 1, the accused is facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], in that, on 18 June 2015, at Gonowani Village, Headman Mpapa, Chiredzi the accused stabbed the now deceased, Stephen Chikucha, with an unknown sharp object in the chest causing his death.

In Count 2, which relates to attempted murder, defined in section 189 as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it is said, that, on 29 June 2015, at Murengwami Village, Headman Mpapa, Chief Sengwe, Chiredzi the accused attempted to kill Onias Chibhombise by stabbing him with an okapi knife in the neck.

The accused totally denies the charges in both Counts. In fact, the accused said he was unknown to both the now deceased in Count 1 and the complainant in Count 2. The accused said he does not even know the alleged crime scenes in both Counts.

As regards Count 2, of attempted murder, the accused said, at the time the alleged offence was committed, he was at his residence with his parents and nowhere near the crime scene.

During the State case, the prosecutor led evidence from Beauty Aleck in Count 1; Onias Chimbombise, complainant in Count 2; Amos Chinherera in both Counts 1 and 2.

The evidence of John Makondo, Dr Tungamira Isaac Rukatya and Dr Mutengerere was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It was during the evidence of D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) that counsel for the State sought to produce the accused's unconfirmed warned and cautioned statement and counsel for the accused objected.

The basis of counsel for the accused's objection was that the said unconfirmed warned and cautioned statement was inadmissible on the basis that it was improperly obtained.

Counsel for the State submitted, that, she intended to rely on this statement in the prosecution case and proceeded to apply to conduct a trial within a trial.

This judgment, therefore, solely concerns itself with a trial within a trial in order to determine the admissibility of the unconfirmed warned and cautioned statement made by the accused.

This statement in issue was made during video recording.

In order to determine its admissibility, the court had to watch, in camera, the recorded video. The written statement was not obviously produced at this stage. Further, in view of the nature of the State case, I decided to watch the video recording and make a determination in the absence of the learned Assessors Messrs CHADEMANA and MUSHUKU.

During the trial within a trial, the State led evidence from D/Assistant Inspector Victor Chinoni (D/Assistant Inspector Chinoni) who recorded the statement in issue, D/Sgt Thulisani Moyo who witnessed the recording of the warned and cautioned statement, and D/Cst Benard Chimbeke who operated the video camera.

The accused gave evidence.

Before dealing with the evidence led during the trial within a trial, I shall briefly discuss the law in relation to unconfirmed extra curial statements and their admissibility.

THE LAW

The rights of an arrested and detained person are provided for, inter alia, in section 50; section 52(a); and section 70(3) of our Constitution.

In brief, section 50 of the Constitution provides for the rights of an arrested and detained person; section 52(2)(a) protects any person from all forms of violence whether from public or private sources. In terms of section 53 of the Constitution, no person shall be subjected to physical or psychological torture, or to cruel or, inhuman or degrading treatment or punishment. Section 70 deals with the rights of any person accused of any offence, and, specifically, section 70(3) provides as follows:

“(3) In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interests.”

Section 50(1)(c) of the Constitution requires that an accused person be treated humanely and with respect for their inherent dignity. In terms of section 50(4)(c), an accused person has a right not to be compelled to make a confession or an admission.

All these are fundamental rights this court is enjoined to protect during criminal proceedings, and, as provided in section 86(3) of the Constitution, some of these rights are non-derogatory rights and may not be limited or violated.

Section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the admissibility of confessions or statements made by an accused person.

It is important to note, that, this relates to either written, oral, tape, video recorded or statements made in other forms: see S v Nkomo & Anor 1989 (3) ZLR 124F–125A.

The essential requirements of admissibility of such an accused's statement or confession is that it should have been made freely and voluntarily without the accused being unduly influenced thereto.

It is beyond the scope of this judgment to discuss what is undue influence. I shall therefore limit myself to what the accused alleges was done to him to compel him to give the warned and cautioned statement in issue.

Suffice to mention, that, generally, undue influence entails anything repugnant to fairness and the fundamental principles upon which our criminal justice system is based. These include, inter alia, improper manner of questioning or interrogation which may be aggressive and unduly lengthy; unnecessary confrontation meant to bring pressure to bear upon an accused person; physical maltreatment or violations visited upon an accused person, or such threats; inducements like promised release from custody, special treatment, privileges or offers of reward or leniency; and denial of rights like access to legal representation or presence of a guardian where juveniles are involved.

Indeed, the list is endless, and each case depends on its own facts.

It is trite, that, the onus is on the State to prove, beyond reasonable doubt, that the statement an accused person alleges was improperly made is admissible: see R v Jacobs 1954 (2) SA 320 (A).

Lastly, I would hasten to point out that the nature of the statement (that is whether confirmed or unconfirmed) and the nature of an accused person's challenge determines whether a trial within a trial is necessary.

It should be borne in mind, that, a trial within a trial is held to establish a question of law, the admissibility of the challenged statement, and not a question of fact like whether an accused person made the statement or not. The latter is a factual issue which can be resolved by leading evidence in the main trial to establish whether the accused made the statement or not: see S v Shezi 1994 (1) SACR 575.

I now proceed to apply these principles in this case.

THE ACCUSED'S EVIDENCE

The unconfirmed extra curial statement the State seeks to rely upon is a written statement which the accused made during a video recording. The nature of the accused's challenge is that it was not made freely and voluntarily hence it is inadmissible.

It is common cause that an attempt was made by the police to have this statement confirmed at Chiredzi Magistrates Court and that it was not confirmed as a result of the accused's objections. What is critical to note, however, is that, at the Magistrates Court, the nature of the accused's objection or complainant in relation to this statement was that he had simply been “intimidated”.

In his Defence Outline, made during a trial within a trial, the accused said he only made the statement after being physically violated or assaulted. He said threats of further assault were made if he did not accede to the police's demands to admit to the charges. The accused, in that Defence Outline, went on to narrate the sequence of events:

(i) Firstly, the accused said he was assaulted by D/Assistant Inspector Chinoni and D/Sergeant Moyo on 2 July 2015 at Chikombedzi Police Station before being taken for indications.

(ii) Secondly, the accused said the police details forced him to admit to the charges, telling him that he had committed these offences for ritual purposes based on some alleged superstitious belief. The accused said he was forced to admit that he committed the offences in Counts 1 and 2 in order to extract human blood from the victims under the superstitious belief that such human blood would heal his back pains.

(iii) Thirdly, he said at the alleged crime scenes, in Count 1 and Count 2, he was further assaulted.

(iv) Fourth, the accused said in the morning when his statement was later recorded at ZRP Chiredzi, D/Assistant Inspector Chinoni and D/Sgt Moyo handcuffed him. Thereafter, he was forced to place his hands between his legs. A log was then put behind his elbows, which log was suspended on two desks. While in that painful position the accused said the two police details assaulted him under the feet and on his buttocks. He said the assault continued until, due to pain, he admitted to the charges in both Counts. The accused said that it was after this brutal assault, which culminated in his admission, and that the statement in issue was then video recorded.

I understand from this Defence Outline, that, the accused's contention is that this statement is inadmissible as it was improperly obtained contrary to the provisions of section 256 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Further, the accused is alleging that his constitutional rights were violated as he was compelled to make a confession or admission contrary to the provisions of section 50(4)(c) of the Constitution.

Lastly, the accused is alleging that this statement is improperly obtained evidence contrary to the provisions of section 70(3) of the Constitution and that its admission would render this whole trial unfair and not in the interests of the proper administration of justice.

When the accused took the witness stand, his version was as follows:

He said after being detained at ZRP Chikombedzi he first met the four CID details from Chiredzi on 30 June 2015 when they took him from the cells and interrogated him about the two Counts which he denied. Thereafter, he said an identification parade in relation to Count 2 was conducted.

He said his woes started soon after this identification parade.

The accused said the CID details said that he, the accused, was wasting time denying the offences when in fact he had been identified during the identification parade.

The accused said he was then physically violated as follows;

(a) At ZRP Chikombedzi he said D/Assistant Inspector Chinoni and D/Sgt Moyo hit him about twenty times under the feet after which they drove him to Chiredzi police station.

(b) The next morning, at ZRP Chiredzi, he was taken from the police cells and questioned about the two offences which he denied. He was again hit under the feet by D/Assistant Inspector Chinoni and detained. Later that day, he was taken for indications.

(c) During indications at the alleged crime scenes, he said D/Assistant Inspector Chinoni pulled out a firearm threatening to shoot him if he persisted in denying the offences and had to be restrained by D/Sergeant Moyo. At the alleged crime scenes, both D/Assistant Inspector Chinoni and D/Sergeant Moyo narrated to him how the offences in both Counts were committed after which he was forced to recite that account as he was video recorded. Thereafter, he was taken to his home in order to recover the knife used in the alleged commission of the offense and a brown jacket they alleged he was wearing despite that he had no such items. They returned to ZRP Chiredzi.

(d) The next day, at ZRP Chiredzi, on 3 July 2015, he was taken from the police cells and again asked about the offence which he denied. He was then handcuffed and positioned in the manner already explained in his Defence Outline after which both D/Assistant Inspector Chinoni and D/Sergeant Moyo severely assaulted him until he admitted to both charges. Thereafter, he was questioned and forced to narrate how he allegedly committed the offences, without any video recording being made, in the manner police had told him. He complied.

(e) After such compliance, the video recording of the warned and cautioned statement played in court was then done. The accused said he simply repeated what he police had told him to say. Thereafter, he was taken to court for confirmation proceedings.

(f) The accused said, at court, he naturally disowned the statement improperly obtained and showed the presiding Magistrate the injuries on his swollen hands caused by the handcuffs and also revealed that his feet were painful. The statement was not confirmed.

THE STATE'S EVIDENCE

The State led evidence from three CID details, D/Assistant Inspector Chinoni who recorded the statement; D/Sergeant Moyo who witnessed the recording of the statement; and D/Cst Bernard Chimbeke who took the video or recorded the proceedings on the video.

1. D/Cst Benard Chimbeke (D/Cst Chimbeke)

D/Cst Chimbeke said his task was to simply capture the proceedings of the recording of the warned and cautioned statement on the video. He disputed that any pressure or force was brought to bear upon the accused. He said the accused was never intimidated, assaulted, or forced to give the statement. He was also part of the CID details who took the accused from ZRP Chikombedzi to Chiredzi, a distance of about 120km.

No useful questions were put to him in cross examination.

2. D/Sgt Thulisani Moyo (D/Sgt Moyo)

D/Sgt Moyo is the investigating officer in both Counts but his role, in respect of the statement, was to witness its recording in writing and on video. He said, after the accused's rights were explained, the accused, whom he described as very co-operative, elected to give a statement. He too denied that the accused was intimidated, forced, assaulted, or threatened to give the statement. D/Sgt Moyo dismissed the accused's allegations of impropriety as false.

Under cross-examination, D/Sgt Moyo said he only later learnt that the accused had disowned the statement at court during confirmation proceedings alleging what the accused called “police intimidation”. He said they could not record the accused's warned and cautioned statement at ZRP Chikombedzi, where they went to collect the accused, as they had no video camera. He said the accused, at ZRP Chikombedzi, initially denied the charges but changed his version later at ZRP Chiredzi.

3. D/Ass Insp Victor Chinoni (D/Ass Insp Chinoni)

D/Ass Insp Chinoni is the detail who recorded the accused's statement and is implicated by the accused.

D/Ass Insp Chinoni said he is part of CID details who took the accused from ZRP Chikombedzi to ZRP Chiredzi. At Chiredzi, both D/Sgt Moyo and D/Cst Chimbeke witnessed the recording of the warned and cautioned statement. He said he properly warned the accused of his rights and the accused gave his statement freely and voluntarily. Thereafter, the accused read the statement and signed it. He disputed that the accused was coerced, forced, or assaulted.

Under cross examination, D/Ass Insp Chinoni explained that three are two discs; one for the recording of the warned and cautioned statement; and the other for indications, which indications were not part of the trial within a trial. He said he is not part of the police details who took the accused to court for confirmation proceedings.

D/Ass Insp Chinoni said after the accused disowned the warned and cautioned statement at court, alleging intimidation, he had to play the video recording to the Officer in Charge CID to show how he recorded the statement, which was typed electronically and video recorded.

I noted, that, D/Ass Insp Chinoni was a very impressive witness. Besides being an eloquent speaker, his attention to detail and knowledge of his work is excellent. The professionalism he exhibited in recording the warned and cautioned statement, as seen on the video, is commendable.

Indeed, counsel for the accused understandably found it difficult to cross examine him, let alone to make any in-roads into his evidence.

On the other hand, the accused impressed me also as a soft, smooth, and eloquent speaker. His unassuming demeanour may be misleading.

Be that as it may. this matter cannot be determined on eloquence alone.

ANALYSIS OF EVIDENCE AND FINDINGS MADE

I had the opportunity to view the video recording of the warned and cautioned statement. I did note, that, throughout the recording, the accused was allowed to tell his story, presumably in his own words, without any interruptions: see R v Shaube-Kuffler 1969 RLR 78 (A).

The accused's narration of events is detailed and lengthy.

In the circumstances, it is highly improbable that all that detail were words put in the accused's mouth which he memorised.

It is precisely for this reason that I had to watch the video recording of the statement.

I had a keen interest to observe if there were any signs that the statement was improperly obtained or not made freely and voluntarily. At this stage, I was not worried much about the contents of the statements per se but to assess the accused's demeanour.

I however noted that the statement is detailed.

While the statement is incriminatory, it is also exculpatory in that the accused emphasised that he had no intention to kill any of the victims.

Turning to the video recording, I noted the following:

(1) The accused's rights were well explained and the accused listened attentively. The accused, who then elected to give the statement, was allowed to, given an uninterrupted account and D/Ass Insp Chinoni only sought clarifications after the accused finished his explanation. As already said, the statement is quite lengthy.

(2) The accused gave a coherent, free flowing account in Shona.

(3) Before even giving the statement, the accused sought clarification, from D/Ass Insp Chinoni, on where to start, and he was allowed to start from wherever he believed was relevant.

(4) As the accused gave the statement, he was seated on a chair. Despite that his hands were handcuffed, the accused was gesturing using hands to emphasize whatever he was explaining. He commenced his account from the time he said he was in South Africa in order to give background information for his alleged conduct.

(5) The accused articulated the dates, time, manner, and how he met the alleged victims.

(6) As the accused gave the statement, he did not exhibit any signs of discomfort and was not fidgeting, but seemed alive as to the serious nature of the proceedings.

(7) D/Ass Insp Chinoni only sought details or clarifications arising from the accused's own explanation, for example, if the accused knew the deceased or complainant before, or the description of the knife allegedly used, and its owner.

(8) After the statement had been typed/recorded, the accused was given the statement to read it himself. I noted that the accused took his time reading the statement to himself, as shown by the movement of his lips. He held the statement with both hands. The concentration exerted in reading the statement by the accused was evident as he moved from one page to the other.

(9) After confirming the correctness of the statement, the accused was asked to sign, and he inquired why he should sign, after which D/Ass Insp Chinoni explained the purpose of signing, and, thereafter, he signed.

(10) The video ends with the accused proceeding to make indications, which are not subject of this hearing. However, I observed that the accused, at the alleged scenes of crime, walked without any difficulty.

A proper analysis of the accused's evidence shows that the accused was not consistent in his outline of version of events.

The alleged assault twenty times under the feet, the threats made with a firearm, and the alleged rehearsal of events were all not part of the accused's Defence Outline.

Further, all these issues the accused later said in his evidence were not put to D/Ass Insp Chinoni or D/Sgt Moyo in cross-examination.

It is difficult, in the circumstances, to accept that this statement was foistered on the accused.

As the accused explained, the gestures he made were his own. The accused admitted that the questions he asked were also his own meant to safeguard his rights.

The alleged gaps in the video referred to by counsel for the accused are difficult to appreciate in light of the explanation by D/Ass Insp Chinoni and that the accused's alleged indications are not before the court.

After a careful analysis of the evidence, I find nothing to suggest that the accused was swayed by any external impulses or that any form of pressure was improperly brought to bear upon him to cause him to give the warned and cautioned statement. There is nothing to negative his freedom of volition.

This explains why, even before the Magistrate who declined to confirm the statement, the accused only alleged “intimidation” not the physical violence he now outlined, in an inconsistent manner, before this court.

If the accused had been assaulted, as he alleges, he would have said so to the Magistrate.

I am not persuaded by the accused's evidence, that, the very magistrate who declined to confirm his statement would fail to properly record the alleged impropriety the accused alleged to him or her let alone to fail to note the injuries the accused exhibited to the magistrate.

It is incredible to suggest that the magistrate ignored all that as accused now alleged.

I am satisfied that the State has discharged the evidential onus thrust upon it as regards the admissibility of the accused's unconfirmed warned and cautioned statement. It has been proved, beyond reasonable doubt, that, the accused made the statement freely and voluntarily without being improperly influenced thereto.

After making this finding, I have no discretion to exclude the accused's warned and cautioned statement.

In the result, it is my finding, that, the accused's unconfirmed warned and cautioned statement is admissible.

Accordingly, the accused's warned and cautioned statement is admitted, as Exhibit 5, which includes both the written statement and the accompanying video recording of that statement.

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SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

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Law Portal Zimbabwe

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

HH185-15 : ITAI MOTSI vs THE STATE Ruled By: HUNGWE J and BERE J

HHH94-12 : ERIC MUSUNDIRE vs OK ZIMBABWE Ruled By: BERE J

HMT01-18 : THE STATE vs LUKE MUNGOZA Ruled By: MWAYERA J and ASSESSORS: CHIPERE and CHAGONDA

HH558-15 : THE STATE vs BLESSING CHIMBIRAI Ruled By: BERE J and ASSESSORS: MUSHUKU and DHAURAMANZI

HH515-17 : STATE vs MADALITSO RANCHI Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

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

HH528-16 : THE STATE vs PATRICK MOYO Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HB169-17 : THE STATE vs EVERTON MOYO Ruled By: TAKUVA J

HH43-16 : THE STATE vs ELISHA MLAMBO Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

Appealed HH61-06 : THE STATE vs MUNETSI KADZINGA Ruled By: PATEL J and ASSESSORS: DANGAREMBIZI and TUTANI

HH17-18 : STATE vs JAMES CHISHAKWE Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHAGONDA

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

HHH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS Ruled By: TAGU J

Appealed SC65-13 : NKANYEZI MOYO vs THE STATE Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

SC36-20 : TONIC MANGOMA vs THE STATE Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

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

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE Ruled By: CHITAPI J

CCC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL Ruled By: MAKONI JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE Ruled By: MAKONESE J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL Ruled By: MUSAKWA J

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE Ruled By: MAWADZE J and WAMAMBO J

HMA56-19 : THE STATE vs WONDERFUL MANJORO Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

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Law Portal
Zimbabwe

HH185-15 : ITAI MOTSI vs THE STATE
Ruled By: HUNGWE J and BERE J

HHH94-12 : ERIC MUSUNDIRE vs OK ZIMBABWE
Ruled By: BERE J

HMT01-18 : THE STATE vs LUKE MUNGOZA
Ruled By: MWAYERA J and ASSESSORS: CHIPERE and CHAGONDA

HH558-15 : THE STATE vs BLESSING CHIMBIRAI
Ruled By: BERE J and ASSESSORS: MUSHUKU and DHAURAMANZI

HH515-17 : STATE vs MADALITSO RANCHI
Ruled By: TSANGA J and ASSESSORS: GWEME and MHANDU

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

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HB169-17 : THE STATE vs EVERTON MOYO
Ruled By: TAKUVA J

HH43-16 : THE STATE vs ELISHA MLAMBO
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHIPERE

Appealed HH61-06 : THE STATE vs MUNETSI KADZINGA
Ruled By: PATEL J and ASSESSORS: DANGAREMBIZI and TUTANI

HH17-18 : STATE vs JAMES CHISHAKWE
Ruled By: HUNGWE J and ASSESSORS: RAJAH and CHAGONDA

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

HHH229-15 : IZAYI PARK HOUSING SCHEME (represented by ELINAS GUMBO) vs SHADRECK GWENA and OTHERS
Ruled By: TAGU J

Appealed SC65-13 : NKANYEZI MOYO vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

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

HH424-18 : ANESU MOREBLESSING NYAMUTATA vs THE STATE
Ruled By: CHITAPI J

CCC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SSC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HH220-16 : THE STATE vs GEORGE LOVELL
Ruled By: MUSAKWA J

CCC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU