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

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

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

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

Both accused persons pleaded not guilty to the murder charge.

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

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

The Issues

The following are the issues that fall for determination:

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

2. If so who is or are the assailants?

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

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

The evidence

The State led evidence from six (6) witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Deceased admitted the charge and was taken to court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He said no identification parade was conducted. When the State's version was put to him, he totally denied it adding that they do not use such weapons when investigating cases and that baton sticks are kept under lock and key and if one requires it, one would have to book it out. He did not know why all the three witnesses said he assaulted them as described.

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

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

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

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

Under cross-examination, he said;

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

Further, in answer to a question, he said;

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

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

The second accused also gave evidence in her defence.

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

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

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

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

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

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

“I witnessed the recording of the statements”.

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

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

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

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

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

Analysis

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

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

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

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

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

This evidence was not challenged by the accused persons.

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

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

(i) Intracranial haemorrhagic.

(ii) Head injury.

(iii) Assault.

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

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

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

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

(d) The deceased was assaulted indiscriminately.

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

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

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

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

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

The question is; who is telling the truth here?

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

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

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

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

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

Also in evidence in chief he said;

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

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

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

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

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

Asked how exactly she assisted Accused 1 she said;

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

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

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

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

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

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

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

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

As regards Accused 2, identification is clearly an issue.

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

It is trite law that where identification is in issue, the evidence of identification should be approached by the courts with some extreme caution. In S v Mtetwa 1972 (3) SA 767 (A) at 768 C HOLMES JA said;

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

The list is not exhaustive.

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

See also S v Dhliwayo and Anor 1985 (2) ZLR 101 (S) at 107A – D; S v Ndhlovu & Ors 1985 (2) ZLR 261 (S) at 263G – 264E; and S v Mutondi 1996 (1) ZLR 367 (H); S v Marado 1994 (2) SALR 410.

As regards caution GILLESPIE J (as he then was) in the Mutondi case supra said;

“caution is not demonstrated by the mere statement that one is aware of the need for caution, where the subsequent assessment shows no more than superficial comparative assessment of demeanor. The shibboleth that the identifying witness was 'composed and remained unshaken during cross-examination' is wholly inadequate as a demonstration of caution. The uttering of any cautionary words must be supported by the demonstration in the reasoning of a cautious approach paradoxically, that utterance itself becomes unnecessary where the judgment shows alertness to the dangers concerning which the cautionary rule in question seeks to address.…”

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

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

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

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

A. I did not know their names.

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

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

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

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

“Q. How many assaulted you?

A. Moyo and Mutema.

Q. How did you get to know them?

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

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

Be that as it may, one remains aware of the apothegm of the Roman man of letters of the 1^st 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 3^rd edition at pages 7 – 8 puts it thus:

“The test to determine whether X was the factual cause of the consequence is to ask: but for X's actions would the consequence have occurred? If it would not have occurred but for X's conduct, then X is the factual cause of that consequence. If it would still have occurred anyway, then X is not the factual cause of the end result… The test for legal cause is to ask whether the consequence was reasonably foreseeable or was within the range of human experience. If the consequence was reasonably foreseeable, then X is held to have been the legal cause of that consequence.”

See also S v Runokonda S-27-85; S v Ndlovu S-21-87.

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

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

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

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

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

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

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

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

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

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

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

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

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

In S v Mugwanda S-19-02 it was held per CHIDYAUSIKU CJ that to establish intention it is sufficient if X subjectively foresaw the possibility of his act causing death and was reckless of such result… Subjective foresight, like any other factual issue, may be proved by inference.

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

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

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

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

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

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

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

2.Persistence in such conduct, despite such foresight.

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

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

5.The absence of actual intent to kill.”

Burehell and Hunt Vol 1 at 152 – 4 state that the 'recklessness” required for dolus eventualis:

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

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

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

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

Foresight may be inferred from the facts where an accused denies that he foresaw the consequences – see Feltoe supra at p 10.

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

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

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

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

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

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

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

Sentence

In assessing an appropriate sentence we will take into account what has been submitted on your behalf by your counsel in mitigation. We will also consider the aggravating features in the case. Particularly we will consider the fact that you are a first offender, married with two young children. We were also informed that you are remorseful.

However, what is aggravating is that murder is a very serious offence in that it involves loss of life. The courts have a duty to uphold the sanctity of human life.

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

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

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

What makes this case a bad one is that the offence the deceased had committed was a petty one and he had admitted his guilt. On those basis, the accused's conduct was particularly reprehensible.

For these reasons you are sentenced as follows:

18 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving violence upon the person of another of which upon conviction shall be sentenced to imprisonment without an option of a fine.

Effective: 15 years imprisonment.

Prosecutor General's Office, State's legal practitioner

Cheda & Partners, 1^st accused's legal practitioners

Dube-Tachiona, Tsvangirai, 2^nd accused's legal practitioners