This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.
In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.
The first three appellants were sentenced each to 20 years imprisonment.
The fourth appellant was sentenced to a fine of $500, or, in default, three months' imprisonment with a further three years imprisonment suspended on conditions.
The appeal is against the convictions and the sentences.
Background Facts
On 29 May 2011, a political party, “the MDC-T”, held a political gathering at a shopping center in one of the suburbs in Harare. The purpose of the gathering was to celebrate the party's T-shirt visibility programme.
A group of police officers, led by the deceased, was dispatched to disperse the gathering which was deemed illegal.
When ordered, by the police officers, to disperse, the group did not resist but pleaded with the police to first complete their food preparations, which included a barbecue, before they could disperse. The police agreed to this arrangement and left.
Reports later reached the police that the group had thereafter relocated to another shopping centre in the same suburb. The police, once again, led by the deceased, reacted and followed to the new location.
When the officers tried to disperse the gathering at the new location, they were met with stiff resistance. In the melee that ensued, the deceased was stoned by an unidentified assailant. He fell down onto the tarmac. He died as a result of a severe injury to his head which depressed his skull and caused damage to his brain.
On 12 March 2012, the appellants, and 25 others, were arraigned before the court a quo facing one count of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and, alternatively or concurrently, with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act.
After a protracted trial lasting over four years, the appellants were duly convicted and sentenced as detailed above.
The court a quo found that the first three appellants had, on 29 May 2011, unlawfully and with actual intent to kill, murdered the deceased by hitting him on the head with a brick, causing injuries from which he later died.
It found the fourth appellant guilty as an accessory after the fact to the crime of public violence, which it held to be subsumed in the crime of murder.
The fourth appellant had ferried the first two appellants from the scene of the crime in the vehicle he was driving.
In finding the first three appellants guilty of murder, the court was clear in its mind that the guilt of the accused persons hinged on whether or not the appellants participated in the commission of the crime, either directly or by association. In particular, it was its view that the case against the three appellants hinged on the applicability of the common law doctrine of common purpose, which it dealt with extensively, before convicting the appellants as detailed above.
The Appeal
As indicated above, the appellants were aggrieved by the convictions and sentences. In noting this appeal, they raised six grounds. I cite them here in full:
“1. The court a quo erred and seriously misdirected itself when it failed to properly apply the law and discharge the appellants as it was obliged to at the close of the State's case in terms of section 198(2) of the Criminal Procedure and Evidence Code, when no evidence justifying their placement on their defence had been led, and, in doing so, denied them a fair trial with the result that the conviction and sentence must be vacated.
2. The court a quo further erred and misdirected itself in finding the appellants guilty on the basis of the doctrine of common purpose, when, in law, the doctrine is no longer part of our law; the criminal law of Zimbabwe, having been codified in the Criminal Law Codification and Reform Code, which specifically outlaws Roman-Dutch Criminal Law.
3. The court a quo further erred and misdirected itself when it convicted the fourth appellant as an accessory after the fact to the crime of public violence when there is no actual perpetrator convicted of public violence.
4. The court a quo further erred and misdirected itself when it failed to find, as an extenuating circumstance, the fact that none of the appellants were shown to have directly participated in the melee that resulted in the deceased's death, thus reducing their moral blameworthiness.
5. Taking into account the full circumstances of the case, the court a quo's sentence of 20 years imprisonment induces a sense of shock in its excessiveness.
6. The court a quo erred and misdirected itself when it suspended a portion of the sentence on wide incompetent terms unrelated to the crime under which the appellant was convicted.”...,.
It is...,, common cause that the scene of the crime was a busy shopping centre where there was a beer outlet, a car wash, vendors, including some who were cooking meals for sale, a flea market, and other members of the public who were waiting to use public transport. This was a Sunday afternoon falling at the end of the month. The crowd at the scene of the crime was not homogenous. It was made up of these members of the public and members of the MDC-T who had relocated from the first venue of their celebrations....,.
The appellants were charged concurrently, or, in the alternative, with the crime of public violence. The crime is created by the provisions of section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which reads:
“(1) Any person, who, acting in concert with one or more other persons, forcibly and to a serious extent -
(a) Disturbs the peace, security or order of the public or any section of the public; or
(b) Invades the rights of other people; intending such disturbance or invasion or realizing that there is a real risk or possibility that such disturbance or invasion may occur, shall be guilty of public violence and liable to a fine…,.”
The crime of public violence, as re-enacted in the Criminal Law (Codification and Reform) Act (the Code) has similar essential elements as the common law crime: These consist of the unlawful and intentional commission by a number of persons, acting in concert, of acts of sufficiently serious dimensions which are intended to violently disturb the public peace or invade the rights of others.
The crowd need not have acted with pre-meditation.
The obstruction of the police from performing their duties, as happened in casu, has been accepted, at common law, as constituting the common crime of public violence: R v Cele 1958 (1) SA 144 (N). It constitutes the crime of public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act (the Code).
I therefore find, that, the melee between the police and members of the MDC-T, at the second venue of the celebrations, degenerated into acts of public violence by the crowd that included members of the MDC-T.
In view of the Defence Outlines filed in respect of each of the first three appellants, the point of disputation in this case is whether the appellants participated in the acts of public violence as alleged or at all.
Whilst it is largely unnecessary that I burden this judgment with an analysis of all the evidence that was adduced at the trial, I wish to comment, in general, that the evidence from all the State witnesses did not tell a seamless story.
There were too many loose ends.
The scene was riotous and was very mobile and very fast moving.
Whilst none of the witnesses could be expected to have had a helicopter view of the scene, however, even from their different viewpoints, the State evidence must have told the same consistent story, being the version that the State wished to rely on to found the criminal liability of the appellants.
Instead, not only was the evidence remarkably disjointed, it was contradictory in some respects.
An impeachment of one of the witnesses, by the State, would have had the effect of leaving only one story as the State's version of what occurred at the material times.
The evidence implicating the first and second appellants came from one Inspector Nyararai who knew them both before the date of the alleged crime. He was part of the officers, led by the deceased, dispatched to disperse the MDC-T members. He testified, that, upon their arrival at the scene, he observed the first and second appellants in the verandah of the bar chanting their party's slogans. It was his further testimony that the two did not leave the front part of the bar upon the arrival of the police, but, remained there chanting slogans and inciting the crowd to attack the police by chanting “Kill the frogs!” in apparent reference to the police.
The testimony of Inspector Nyararai, in this regard, is contradicted, firstly, by that of one Chikwira, who arrived at the scene before the police did. Chikwira, a member of the public, had gone to the bar to drink.
He testified, that, all members of the MDC-T went into the bar upon the arrival of the police. He was in the verandah drinking a beer.
His evidence, in this regard, was corroborated by the evidence of Mutsigwa, Mushaninga and Magutarima.
Mutsigwa, a police officer and driver of the police vehicle on the day in question, testified, that, upon the arrival of the police, all the people who were in the verandah of the bar fled.
Mushaninga, a member of the stick of police officers who went into the bar with the deceased, on the other hand, testified that there were no members of the MDC-T in the verandah when the police arrived.
Magutarima, another police officer, who went into the bar with Mushaninga, also testified, that, upon their arrival, all members of the MDC-T who were in the verandah went into the bar and only a few elderly people remained in the verandah. He and Mushaninga addressed this group and ordered them to disperse which they did.
I find the evidence of Inspector Nyararai unsafe to rely on in the circumstances.
He is the only witness who testified that there were members of the MDC-T in the verandah of the bar, including the first and second appellants, who were chanting slogans and urging the crowd to attack the police.
There is other State evidence that the confrontation between the police and the MDC-T members started at the back of the bar and it is there that one youth urged the others to attack the police by shouting “kill the frogs!” Before then, no one had urged the others to “kill the frogs.”
No effort was made by the State to tie these two versions together.
In the result, I find that there was no reliable evidence at the close of the State case upon which a court, acting carefully, would convict the first and second appellants of public violence.
Similarly, the evidence identifying the third appellant as being present at the scene on the day in question is unsafe.
It comes from Mushaninga.
He did not know the third appellant prior to the day of the crime. He testified that he saw the appellant for a brief moment inside the bar when the third appellant assaulted him with a stool frame.
Again, the same handicap that makes the evidence of Inspector Nyararai unsafe afflicts the evidence of Mushaninga in identifying the third appellant.
If one compares the evidence of Mushaninga to the other evidence led on behalf of the State, it appears that Mushaninga had poor observation skills on the day or poor recollection after the event. He did not see the people who were in the verandah when the police arrived - yet the others in his company did. This is where Chikwira, one of the State witnesses, was drinking his beer. He did not see any members of the public at the shopping centre - yet the other witnesses did.
He did not see any vendors at the shopping centre. The other witnesses did - and one of the vendors gave evidence as a State witness.
Before entering the bar, he did not recollect stopping to address the patrons who were drinking in the verandah of the bar. Magutarima testified that he and Mushaninga did.
Again, the respondent made no efforts to tie up these loose ends.
I therefore find, that, at the close of the State case, the evidence identifying the third appellant was manifestly unreliable.
The first to third appellants were entitled to a discharge on the public violence charge at the close of the State case.
In view of the findings that I make regarding the liability of the first and second appellants in this matter, the conviction of the fourth appellant naturally falls away.
