Christ Citadel International Church v Mujaya N.O and Another (750 of 2022) [2022] ZWHHC 750 (26 October 2022)

1 HH 750-22 HC 7908/19 CHRIST CITADEL INTERNATIONAL CHURCH (represented by LINDANI NDABA) versus HOSEA MUJAYA N. O and THE STATE HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 5 November 2021 and 26 October 2022 Opposed Application- Review Mr S Banda, for the applicant Ms F Kachidza, for the second respondent MUSITHU J: BACKGROUND This is an application for the review of the decision of the first respondent delivered on 10 September 2019 under CRB No. 294-96/19, in terms of which the applicant’s application for discharge at the close of the State case was dismissed. The facts are that on the 24 April 2019, the applicant (as 1st accused, Norton Town Council as 2nd accused and Israel Isheunesu as 3rd accused) appeared before the first respondent answering to the charge of culpable homicide as defined in section 49(b) of the Criminal Law (Codification and Reform) Act1 (the Code). Allegations were that one Lovejoy Mwandiambira lost his life through electrocution after coming into contact with a live power line at the applicant’s premises that were under construction. Investigations pointed out to negligence by the applicant in that it caused a church structure to be constructed under a live power line and did not take measures to ensure the safety of members of the public. The applicant was charged with culpable homicide and the trial commenced before the first respondent. At the close of the State case, the applicant applied for discharge, but the application was dismissed. It is the dismissal of that application that gave birth to the present application. 1 [Chapter 9:23] HH 750-22 HC 7908/19 The Applicant’s Case The applicant contends that no reasonable evidence was placed before the first respondent to warrant the placement of the applicant on its defence. The applicant had done all it could to protect its members from danger. The property is surrounded by a durawall and a gate. The applicant also employs a caretaker, whose duty is to ensure that non-members of the church do not gain access into the church premises. Announcements were also made during church services to ensure that no one goes to the top deck where the power lines are located. The deceased being a non-member of the church did not know all of this and trespassed into the church premises in the company of his brother who is a member of the church. The applicant further contends that there was no negligence on its part, since it took all steps necessary to ensure the safety of its members. The death of the deceased was just an unfortunate and unforeseeable event. Construction had ceased and the applicant had no duty to act towards the deceased who was not one of its congregants. It was therefore unreasonable for the first respondent to dismiss the applicant’s application for discharge at the close of State case considering all of the above factors which all but exonerated the applicant from any perceived negligent conduct. The Second Respondent’s Case The respondent contends that the application is without merit and ought to be dismissed to allow the applicant to have its day in court. The applicant had to be given an opportunity to explain its conduct, in response to the criminal charges. According to the second respondent, the applicant’s conduct directly contributed to the death of the deceased. It constructed a structure directly under an 11kv power line. It was reasonably foreseeable that as the construction progressed skywards, the structure would come into contact with the power line thereby creating a dangerous situation. Electrocution of any person coming into contact with the live power line was reasonably foreseeable. The fact that the deceased was a non-member of the applicant was not a plausible defence. The applicant owed a duty of care to members of the public and not just its members. The decision of the court a quo on the application for discharge In his ruling, the first respondent dismissed the applicant’s contention that the deceased had no business being at the church premises since he was a non-member of the church. The court was of the view that a church was a voluntary organisation which was not exclusive to its members only as it were. Anyone could visit the church despite not being members of that church. Besides, even assuming that membership was the prime consideration for one to get HH 750-22 HC 7908/19 access into the church premises that still did not take away the responsibility to properly secure the premises to avert harm even to members of the church. The applicant could not create a dangerous situation and then wave the membership tag as a defence to the said criminal charges. The court concluded that the applicant had a case to answer. It also concluded that the second accused person had explanations to make as regards its involvement in the project. It had some oversight over the piece of land, since it was under its jurisdiction. The court however found the third accused not guilty and acquitted him. The court reasoned that the third accused ought to have brought in as a State witness. He had the requisite qualifications to supervise the project, but there was no evidence to suggest that he played any role that made him criminally culpable. The Submissions and Analysis Mr Banda appearing for the applicant submitted that the issue for determination had been narrowed down to whether the court aquo acted irrationally in dismissing the application for discharge, when the evidence led by the second respondent did not merit any answer from the applicant. According to him, the court acted irrationally for the following reasons: the incident occurred when the applicant had stopped construction at the site in October 2014. It was at that stage that the applicant had applied to the Zimbabwe Electricity Transmission and Distribution Company (ZETDC), Norton Depot, for the relocation of the 11KV line which was passing directly above the construction site. The applicant approached ZETDC in October 2014, well before the incident occurred in December 2014. Mr Banda argued that the applicant had done everything that a reasonable person in the same circumstances would have done. The deceased only accessed the premises because he was in the company of the applicant’s congregant who had gone to charge his cellular phone. Further, a State witness from ZETDC, a Mr Murambiwa admitted under cross examination that ZETDC and the Ministry of Local Government were culpable for the deceased’s death, because an inspection carried out at the setting out stage should have picked the positioning of the ZETDC line, relative to the construction site. Counsel also averred that the deceased was on a frolic of his own. He should not have been at the construction site in the first place. In her response, Ms Kachidza submitted that superior courts are generally slow to interfere with unterminated proceedings of the lower courts. The issue was whether there was any gross irregularity in the ruling by the first respondent on the application for discharge at the close of the State case. The mere fact that the application for discharge was dismissed did HH 750-22 HC 7908/19 not amount to a gross irregularity. The lower court established that there was a prima facie case that justified the opening of the defence case. Two defence witnesses had already testified. Ms Kachidza further submitted that before the applicant commenced construction at the site, it was aware that there was an 11KV electricity line that passed through the construction site. It proceeded with construction regardless of warnings from ZETDC to halt construction. Had a decision been made to halt construction much earlier, the structure would not have reached that stage which exposed members of the public to danger. The KV line was about 1.2 to 1.5 metres from the structure, thus exposing the public to danger. It was therefore reasonably foreseeable that harm would occur to anyone under the circumstances. The mere fact that