S v Mushongandebvu (CA 895 of 2010; CRB R 476 of 2009; HH 144 of 2016) [2016] ZWHHC 144 (18 February 2016)

1 HH 144/16 CA 895/10 CRB NO. R476/09 BLESSWELL MUSHONGANDEBVU versus THE STATE HIGH COURT OF ZIMBABWE CHATUKUTA & MANGOTA JJ HARARE, 18 March 2015 and 18 February 2016 Criminal Appeal K. Katupira, for the applicant F. Kachidza, for the respondent MANGOTA J: The appellant pleaded not guilty to, but was convicted after trial of, attempted murder. He was charged under s 47(3) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 4 years imprisonment all of which were suspended on the following conditions: (i) 2 years imprisonment were suspended for 5 years on the usual condition of future good behavior - and (ii) 2 years imprisonment were suspended on condition the appellant performed 840 hours of community service. A compensation order was awarded to the complainant in the sum of $9 087-24. It was awarded in terms of s 368 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. The state allegations were that, on 30 May 2009 and at Road Port, Corner Robert Mugabe and 5th Street, Harare, the appellant attempted to cause the death of one Timothy Zengeni. The appellant appealed against conviction and the compensation order. He stated in his grounds of appeal that the learned magistrate erred in: (1) accepting that the complainant did not run towards the bus when he admitted under cross examination to telling the police that he did so; HH 144/16 CA 895/10 CRB NO. R476/09 (2) concluding that the appellant hit the complainant with the door of the bus when there was overwhelming evidence which showed that he did not do so; (3) making a compensation order when an application had not been made to it in terms of s 368 of the Criminal Procedure and Evidence Act - and (4) granting a compensation order when the amount of compensation was not readily quantifiable. The respondent opposed the appeal. It maintained the view that the appellant was properly convicted. It stated that the application for a compensation order was properly made in terms of s 368 of the Criminal Procedure and Evidence Act. It said the application was made at the instance of the complainant. It insisted that the granting of the compensation order was not contrary to s 366 of the same Act. It said the order was quantifiable as the complainant furnished the court with invoices and receipts of the expenses which he incurred. During the appeal, the court drew the attention of the respondent’s representative to a number of unsatisfactory features which existed in the testimony of state witnesses. Ms Kachidza for the respondent, reconsidered her position. She conceded that the conviction of the appellant was not safe. At the close of submissions, we upheld the appeal. We indicated that our reasons would follow. These are they: The appellant stated that the complainant ran at a very fast speed towards the bus, fell down and was run over by the bus. He denied that he opened the door of the bus. He also denied that he hit the complainant with the door of the bus. The appellant’s witness, one Tiki Kanyausani, corroborated the appellant’s version of events. He stated that the complainant ran at a fast speed towards the bus. He denied that the door of the bus hit the complainant. Kanyausani worked at Road Port as a security supervisor. His testimony on the matter in issue reads: “Mandaza Bus got into Road Port. It off-loaded. I ordered that the bus should move out. One of my security guards opened the gate. I saw a certain man running towards the bus. He held a white piece of paper. When he reached the bus, it moved as it turned to the left. He was struck by the left wheel. It ran over his leg. The bus stopped and the driver reversed”. Mr Kanyausani’s evidence was not controverted in any meaningful way. HH 144/16 CA 895/10 CRB NO. R476/09 The respondent made no submissions on whether or not the complainant ran towards the bus. It, however, insisted that the appellant opened the door of the bus and hit the complainant causing him to fall down and be run over by the bus. In stating as it did, the respondent was only repeating what the complainant had told the court a quo. The complainant’s version of events lacked corroboration. He, in fact, corroborated the appellant’s version to some degree. He admitted, under cross examination, that he had told the police that he ran towards the bus. Three persons said the complainant ran towards the bus. These were the appellant, Mr Kanyausani and, to some degree, the complainant himself. Two persons said the appellant did not open the door of the bus. These were the appellant and his witness Tiki Kanyausani. Mr Kanyausani was an impartial witness. He had no reason to lie in favour of the appellant or against the complainant. The state did not suggest to him that he lied in favour of the appellant. He, at any rate, would have gained or lost nothing by lying. He was a disinterested witness to this unfortunate event. He was on duty when the accident occurred. He observed what took place at the scene of the accident. The court a quo’s treatment of Mr Kanyausani’s testimony was unfortunately cursory. It did not analyse and evaluate his evidence as it should have done. It made reference to that evidence and dismissed it with little, if any, reasons. Mr Kanyausani’s evidence should have been closely examined and compared with that of the complainant and the appellant. It is our view that, if the court a quo had analysed, weighed and evaluated his evidence, it would have realised that the probabilities of the matter weighed more favorably with the appellant’s account of events than they did with that of the complainant. Counsel for the appellant gave the background of this case in a clear and lucid manner. He did so in his Heads of Argument wherein he said: “I. 2. On the 30th May 2009, the appellant who was employed as a bus conductor by Mandaza Bus Service (Pvt) Ltd arrived at Road Port, Harare, from South Africa, aboard a bus driven by one Francis Moyo. While in South Africa, the appellant had been entrusted with some money meant for one Naome Zengeni who later turned out to be complainant’s sister. While off – loading baggage and passengers in the Road Port premises, the appellant was approached by the complainant who identified himself as the brother of Naome Zengeni to whom the money from South Africa was meant. It is common cause that despite HH 144/16 CA 895/10 CRB NO. R476/09 complainant identifying himself, appellant was not satisfied and declined to give the money wanting confirmation from Naome Zengeni. Complainant went to purchase airtime to enable appellant to communicate with the said Naome Zengeni via cellphone as to whether the money could be handed to complainant. 3. Complainant took about 30 to 40 minutes to purchase airtime. By the time he returned to the off-loading bay in Road Port, the bus was apparently exiting the premises via the gate meant for buses only. Complainant claimed that, with the assistance of other people, he called out for the bus to stop, which it did (sic). He walked to the bus and at the passenger door located on the left side of the bus, the appellant forcefully opened the door which hit complainant resulting in him falling face down. At that stage the bus which was turning left into 5th street started moving resulting in complainant being run over on his leg”. The complainant’s evidence was that he did not run towards the bus. The bus was stationery when he got to it. He told the appellant that he had gone to purchase some airtime so that the appellant would contact his sister. The appellant shouted saying he was troubling him. The appellant started to open the door of the bus. As the appellant did so, the door hit him on the shoulder. He fell face down and the bus started moving. On the basis of the complainant’s account of events, the appellant lacked the requisite mental state to commit the crime of attempted murder. His version showed that everything occurred in a split of the second. The appellant cannot, under the stated circumstances, be said to have formulated the intention to murder. Murder and attempted murder fall into what are referred to as specific intent crimes. The state of mind of a person who is charged with either of those offences is guided by s (s) 13 and/or 15 of the Criminal Law [Codification and Reform] Act. Section 13 makes reference to actual intent and s15 refers to realization of a real risk or possibility of harm occurring to the victim. The headnote of the case of S v Mugwanda 2002(1) 574 clarifies the meaning and import of the sections. Paragraph E of the headnote reads: “For a court to return a verdict of murder with actual intent, the court must be satisfied beyond reasonable doubt either that the accused desired to bring about the death of his victim and succeed in completing that purpose, or that while pursuing another objective the accused foresaw the death of his victim as a substantially certain result of that activity and proceeded regardless. A verdict of murder with constructive intent, on the other hand, requires the foreseen result to be possible as opposed to being substantially certain, making it a question of degree more than anything else”. (emphasis added) It cannot, on the basis of the complainant’s account, be stated that the appellant desired to bring about the death of the complainant. It cannot also be said that he foresaw the death of his HH 144/16 CA 895/10 CRB NO. R476/09 victim when he allegedly opened the door of the stationery bus, hitting the complainant causing him to fall face downwards. The findings of the court a quo would have been proper if the appellant had, after he allegedly hit the complainant causing the latter’s fall, told the bus driver to drive on reckless as to whether or not the bus would run over any part of the complainant. It cannot be stated, either, that the appellant realised a real risk or possibility of the complainant meeting his death when, according to him, the bus was stationery. The possibility of the complainant being run over by the stationery bus was totally absent. It is our view that the appellant did not have the actual intention to murder the complainant. He did not realise any real risk or harm occurring to the complainant as a result of his conduct. The appellant did not set the stationery bus into motion. The driver of the bus did. It is the conduct of the driver which resulted in the injuries which the complainant suffered. If the bus had remained stationery, as the complainant alleged that it was, the probabilities are that the complainant would not have sustained the injuries which he suffered. It was our view that the appellant was erroneously convicted. Despite its earlier opposition of the appeal, the respondent ultimately made concessions to the same effect. Its concessions were properly made. We have, in the circumstances, no option but to quash the conviction. The appellant’s second wrang of appeal related to the compensation order which the trial magistrate made in favour of the complainant. That order followed the court a quo’s conviction of the appellant. The quashing of the conviction of the appellant makes the compensation order superfluous. The order will, therefore, be set aside. Having so determined, it would be remiss not to observe that the charge which the state preferred against the appellant was wrongly cited as a contravention of s 47(3) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The cited section does not create any offence. It refers to the sentence which may be imposed upon a person who is convicted of attempted murder. The appellant should have been charged with attempted murder as defined in s 189 as read with s 47 (1) of the Criminal Law [Codification and Reform] Act. The citing of the HH 144/16 CA 895/10 CRB NO. R476/09 wrong section did not, however, prejudice the appellant. The charge is, in the premises, corrected to read as follows: “[Hereinafter called the accused] charged with the crime of: Contravening Section 189(1) as read with section 47(1) of the Criminal Law [Codification and reform] Act [Chapter 9:23] Attempted Murder. In that on the 30th of May 2009 and at Road Port, Corner Robert Mugabe and 5th Street, Harare, Blesswell Mushongandebvu unlawfully attempted to cause death to Timothy Zengeni either intending to kill Timothy Zengeni or, despite realising that there was a real risk or possibility that his conduct might cause death, continued to engage in that conduct]”. We considered all the circumstances of this case. We were satisfied that the appellant proved his innocence on a balance of probabilities. His appeal succeeds in toto. We, accordingly, order that: 1. 2. 3. 4. The appellant’s appeal be and is hereby upheld; The conviction of the appellant be and is hereby quashed and the sentence set aside. The appellant be and is hereby found not guilty and is acquitted and discharged. The compensation order in the sum of $9 087-24 be and is hereby set aside. CHATUKUTA J: agrees………………………….. Matizanadzo & Warhurst, applicant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners