Mwachinduka v Minister of Home Affairs & Ors (HC 3240 of 2002) [2006] ZWHHC 56 (16 May 2006)

HH 56-2006 HC 3240/02 JOYCE MWACHINDUKA PLAINTIFF and MINISTER OF HOME AFFAIRS and POLICE COMMISSIONER and MINISTER OF DEFENCE and COMMANDER OF ARMY FIRST DEFENDANT SECOND DEFENDANT THIRD DEFENDANT FOURTH DEFENDANT HIGH COURT OF ZIMBABWE BERE J HARARE, 14,15,18 February 2005 and 17 May 2006 Mr T Bhatasara for plaintiff Mr F Ruzive for defendants GENERAL DAMAGES BERE J: On the 8th August 2001, Plaintiff’s husband Samuel Masiyatsva, died in a shooting incident involving the police and army officers who had been called to deal with industrial action involving employees of a company called Zimbabwe Iron and Steel Company (ZISCO). Plaintiff’s husband was one of about 4 000 employees who were involved in the industrial action. It is the deceased’s death which led to the instant civil action by Plaintiff who sought to recover damages for loss of support for herself and her children. Plaintiff’s claim is for Z$2 001 375-00 and was premised on the following grounds; namely:- “That the Defendants willfully or alternatively negligently conducted themselves in that: - HH 56-2006 HC 3240/02 (i) (ii) They used excessive force to control a peaceful industrial action which could have been easily controlled by reasonable measures. They fired live bullets into the crowd when it was reasonably forseeable that someone would be fatally shot by one or several of the bullets.” Defendants’ response to the claim was a combative one. They denied that they willfully caused the death of the deceased and stated in their plea inter alia that: “The death was as a result of an accidental discharge caused by some striking workers who attempted to disarm a Zimbabwe National Army member.” It was argued for the Defendants that what the officers did on the fateful day fell clearly within the armpit of section 15(6) of the then Law and Order (Maintenance) Act (Chapter 11:02) which act has now assumed the name Public Order and Security Act (Chapter 11:17). In short Defendants’ position was that what they did on the day in question was reasonably necessary to contain the volatile situation at Zisco. It is with these basically two incompatible versions (from Plaintiff and Defendants) that the court must proceed to look at the tendered evidence. In looking at the evidence it is also necessary not to loose sight of issues agreed by the parties at the pre-trial hearing on the 27 th day of October 2004 where after deliberations the parties agreed that the matter be referred to trial on the following issues: “1) Whether the shooting of the deceased by Raymond Zvoushe of the Zimbabwe National Army (ZNA) was unlawful. HH 56-2006 HC 3240/02 2) Whether the Plaintiff and her nine children are entitled to the sum of Z$850 000-00 (later amended by consent to Z$2 001 375-00) as damages for loss of support.” It is proposed to look at the evidence first in so far as it relates to issue number 2 of the pre-trial conference as it is felt this issue was less contentious in these proceedings. The deceased’s wife Joyce Mwachinduka was the first to give evidence and it was this witness and the deceased’s brother Timothy Masiyatsva Mwachinduka who gave evidence relating to issue number 2. It was this witness’s evidence that their other family name was Masiyatsva hence one of the deceased’s children bore this name as his surname. No issue was taken with this part of her evidence and it is accepted for what it is. The witness testified on her exclusive dependency on the deceased (her husband) as the breadwinner. She testified that she was a sickling woman and that ever since the deceased’s death her family has been having a difficult time as there is no one in particular to look after them. The deceased status as a breadwinner was confirmed by his brother Timothy Masiyatsva Mwachinduka (second witness) who said the deceased had been working for Zisco for (29) twenty-nine years prior to his death and that the deceased’s untimeous death terminated his employment relationship with Zisco. He confirmed the deceased was the only one looking after his family and that he was good at that. As rightly pointed out by Defendants’ counsel the Plaintiff’s testimony had its own limitations. She did not witness how the deceased lost his life. But it would be taking the criticism of her evidence too far for one to say that her evidence did not support her case at all. Accepted, she was not at the scene of the fatal shooting of HH 56-2006 HC 3240/02 the deceased. However, it must be accepted that the thrust of her testimony was never meant to give an indication as to how deceased died. The impact of her evidence was merely to demonstrate that the deceased was indeed a breadwinner and that his demise deprived her family of that status hence this action. She was able to do this and to effectively deal with item 2 of the issues. That in fact is clearly common cause. WAS THE SHOOTING OF THE DECEASED ACCIDENTAL? Having sufficiently dealt with issue number 2, it is proposed to deal with item 1 of the agreed issues. The record of proceedings will show that the evidence relevant to this aspect came from Plaintiff’s witnesses namely Timothy Masiyatsva Mwachinduka, Moses Kavhenga, Lawrence Mangezi and Clement Rafumoyo. For Defendants the relevant evidence came from Makemore Musimwa and Davison Jeure. The thrust of Plaintiff’s case was that the deceased died as a result of indiscriminate shooting by the Defendants’ officers. Plaintiff contended that such shooting was negligent in the circumstances. As already highlighted, the Defendants in their plea disputed that their officers were negligent. They alleged the bullets which killed the deceased were discharged accidentally from Raymond Zvoushe’s gun. Further, they claimed that the accidental discharge occurred when some employees who were involved in the industrial action attempted to disarm the officer concerned. Put differently, the Defendants put the fatal discharge squarely on the commotion created by some of the demonstrators who were alleged to have made an arbortive attempt disarm Raymond Zvoushe who incidentally was not called to testify by HH 56-2006 HC 3240/02 the Defendants. The non-calling of this witness and its implications will be dealt with later in this judgment. It will be appreciated that there was no direct evidence led in these proceedings on the deceased’s shooting which the court could rely on. The evidence was therefore, of a circumstantial nature. Timothy Masiyatsva Mwachinduka, the deceased’s brother, was the first to give evidence on behalf of the Plaintiff on the shooting itself. The witness told the court that when the trade union for Zisco’s employees and the Zisco management had failed to reach an agreement on wage negotiations, the trade union instructed the workers to go on a peaceful demonstration within the company premises. The demonstration started on the 7th of August 2001 and spilled over to the shooting day, the 8th day of August 2001. The witness estimated the number of the demonstrating workers to have been running into thousands. The witness testified that on the 7th day of August 2001, the demonstrating workers had put up on the company premises in the presence of the Zimbabwe Republic Police officers who appear to have been called to monitor the situation. There was no problem on the 7th day of August 2001 as the police and the demonstrating workers put up peacefully on the premises. The witness told the court that trouble began on the 8th of August 2001, when armed riot police officers and the army came to the company premises. The Zimbabwe National Army officers were armed and they came in army trucks and at this stage the striking workers were seated and unarmed. The witness was until this time with among others the deceased who was seated on the lawn. HH 56-2006 HC 3240/02 The witness categorically denied the demonstrating workers started any commotion as a prelude to the subsequent shooting and death of his brother, the deceased. He said the