S v Mukuzvazva & Ors (CRB 155 of 2015) [2015] ZWHHC 568 (18 June 2015)

1 HH 568-15 CRB 155-157/10 THE STATE versus TONDERAI KNOWLEDGE MUKUZVAZVA and INNOCENT MANDIZVIDZA and GIFT MANDIZVIDZA HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 1, 2, 3 & 4 November 2010 and 19 June 2015 ASSESSORS : 1. Mr Gonzo 2. Mr Musengezi Criminal Trial T. G. Nyasha, for the state S. Machingauta, for the accused MUSAKWA J: The accused persons pleaded not guilty to a charge of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 25 December 2008 and at 2475 Cecil Estates, Kadoma the accused persons, one or all of them unlawfully and with intent to kill murdered Tinashe Chuma by striking him all over the body with an electric cord and a piece of hose pipe causing injuries from which the deceased died at Kadoma Police Station. In denying the charge the first accused outlined that on the day in question there was a party at a house. Whilst on his way from Las Vegas Bar the second accused informed him about a thief who had run away and was among the revelers. People who were on their way from Waverly shops dragged the deceased away and assaulted him. The second accused informed the mob that the first accused was a Police officer and he then proceeded to arrest the deceased. They then took the deceased to Kadoma Central Police Station using the second accused’s car. HH 568-15 CRB 155-157/10 The second accused’s defence was to the effect that he was roused by noise emanating from his parked car. He saw a man crouching behind the car. The man then ran away. He noticed that a 25 l container with petrol was missing from the car. The second accused woke up his young brother and they made a follow-up. They heard noise from people who were partying near Waverly Township and they proceeded there. The second accused identified the suspect amongst the revelers. After alerting others the suspect was dragged away. The second accused together with his young brother and a policeman then left with the deceased. Along the way they met a group of people who were coming from Waverly shops. The group commenced to assault the deceased and the Police Officer restrained them. The three then took the deceased to Kadoma Central Police Station using his car. The deceased was assaulted by rowdy members of the public. The third accused’s defence was to the effect that he was roused by the second accused. They followed up the deceased and found him at a party. The deceased was assaulted by a group of people who came from the shops. The mob was restrained by the first accused. They then took the deceased to Kadoma Central Police Station. Evidence was led from Thandanani Mutanda the deceased’s girlfriend who was in his company during part of the night until the deceased left her residence to look for cigarettes. They had partaken beer at Mints Bar in Waverly until they went to her residence. She had no idea how the deceased met his fate. Suffice it to note that she said when the deceased left her residence he was drunk. She only learnt of his death the following morning when someone paid condolences to her. From the evidence of Rodrick Madzivanyika the court heard that there was revelry at stand number 2501. It appears from this witness’s evidence that drinks were for free for immediate neighbours whilst they were sold to other patrons. His friend, one Desmond was the host. The witness provided security. According to this witness the deceased arrived around 7.30 p.m and purchased a pack of canned beer. When he attempted to leave he tripped at the edge of the tarmac and fell down. This is attributed to his inebriated state. The witness and others assisted the deceased who took a nap under a tree at the premises. Around 9.30 p.m the second and third accused arrived running whilst in the company of two others. They identified the deceased by the red hat he was wearing and accused him of stealing or attempting to steal their petrol. They lifted him and started to assault him indiscriminately. HH 568-15 CRB 155-157/10 Whilst this commotion was going on the first accused arrived. Rodrick Madzivanyika and others had stopped the fight. Since the first accused was a police officer he was requested to take charge of the matter. The accused persons then led the deceased away. The route they took led in the direction of the second and third accused’s home and it also led to town. Liberty Dzingai a Police Officer who was based at Kadoma Police Station also testified. He told the court that around 5 a.m the second and third accused brought deceased to Kadoma Police Station. The deceased was bundled in the boot of the accused persons’ vehicle. His hands were bound at the back and he was only wearing a pair of trousers minus a shirt and shoes. He was badly bruised around his trunk. He particularly mentioned the back and the abdomen. The deceased could not talk and he also appeared drunk. The second and third accused persons lodged a report of theft against the deceased. They also claimed that the deceased had been assaulted by a mob. He had looked for the officer in charge of the shift who appeared to be avoiding the matter. He consulted him on whether to detain the second and third accused. Since they were known within the community their particulars were recorded and they were dismissed. About forty or fifty minutes after the accused’s departure the deceased died. The witness claimed not to have seen the first accused. As regards the theft report he stated that it was to be investigated by another shift. Concerning the placing of the deceased in the vehicle trunk he stated that the second accused claimed that the deceased was drunk and could not sit in the vehicle. The investigating officer, Clemence Machaya also testified. He recorded warned and cautioned statements from the accused persons as well as indications. Concerning the extra- curial statements he stated that the accused persons initially wrote their own. After they engaged a legal practitioner they came up with further statements. These are the statements that were confirmed at court. They were produced before the court by consent. Through the indications of the second and third accused they recovered one piece of electric cable and one piece of hose pipe. These items were in a small field near the two accused’s house. Nonetheless the exhibits were not tendered in evidence. The defence objected on the basis of disparities in the description of the exhibits and the trial prosecutor capitulated. Through this witness the court heard that the vehicle used to convey the deceased was a three door sports model. The witness could not recall its make. He was questioned why he did not secure more witnesses and he replied that most of the people he interviewed were reluctant to submit statements. HH 568-15 CRB 155-157/10 Doctor Herbert Munzwa who conducted the autopsy noted multiple bruising of all aspects of the chest and that there was clotting of blood which the doctor described as acnosis. There were multiple internal bruises to the lungs which were severe on the right side and slight on the left side. This was established to be the cause of death arising from external blunt force. The injury to the lungs would have forced the deceased to have difficulties in breathing. The amount of force to the right lung would have been severe whilst the force to the left lung was mild. He was of the view that the deceased could not have sustained the injuries from falling on his own. The accused persons testified in their defence. They confirmed that the first accused arrived at the scene after the other two had apprehended the deceased. The first accused then formally arrested the deceased. The three of them led the deceased away. It was then suggested that they use the second accused’s motor vehicle to convey the deceased to Kadoma Police Station. They all stated that it was whilst they were on their way to the second and third accused’s residence that the deceased was set upon by the mob they encountered. Whilst corroborating each other in denying assaulting the deceased, the accused persons gave conflicting accounts of some pertinent aspects of the incident. The first accused claimed that he failed to restrain the mob. The mob eventually relented after they were told by other people who arrived at the scene that he was a police officer. He claimed that he did not accompany the other accused to the Police Station because he was tired. He intended to rest as he would be resuming duty at 1500 hours. When the deceased was placed in the vehicle he did not observe any injuries on his person. He also told the court that he was charged with misconduct and discharged from the Force. He claimed to have bound the deceased’s hands with shoe laces before placing him in the vehicle. Whilst confirming the first accused’s claim that the deceased was lynched by a mob, the second accused further stated that they told the mob that the first accused was a police officer but they were unheeded. When more people arrived they identified the first accused. That is when the mob dispersed. At home they used a drawstring from the third accused’s pair of short trousers to tie the deceased’s hands. The deceased was then placed into the vehicle through the passenger door that had been folded back. He claimed not to have noted whether the deceased had injuries because he was cleaning the windscreen. On the other hand the third accused stated that the first accused identified himself to the mob as a Police officer and they dispersed. He explained that the motor vehicle had no HH 568-15 CRB 155-157/10 seats at the back because they had used it to carry water containers. He also stated that the deceased got into the vehicle on his own. It his closing address state counsel urged the court to infer that the accused are the ones who inflicted the mortal injuries notwithstanding that no one witnessed what transpired after they took the deceased away. He also submitted that if at all the deceased had been assaulted by a mob, their identities would have been established. In addition, he also queried why the first accused did not proceed to the Police station. In seeking a verdict for murder in terms of s 47 (1) (b) of the Code, state counsel submitted that the accused must have known that death might ensue but were reckless as to whether it ensued or not. Defence counsel submitted that all elements of murder should be proved. If not, then no murder would have been proved beyond a reasonable doubt. He further submitted that there was no evidence to rebut the defence that the deceased was assaulted by a mob. The accused persons admit apprehending the deceased and later handing him over to the police. This dispenses with resolving the issue of the correct time the deceased arrived at the scene where he was apprehended. That the second and third accused persons assaulted the deceased remained unchallenged. This is because it was never put to Rodrick Madzivanyika that the accused in question did not assault the deceased or that he was assaulted by a mob. It was also not challenged that the first accused took charge of the deceased by placing him under arrest and taking him away together with his co-accused. It is also not disputed that the deceased was taken away whilst he was walking on his own. Rodrick Madzivanyika testified that at that stage the deceased was not injured. In his confirmed warned and cautioned statement the first accused stated that people who had come from the shops dragged the deceased from the party. They then assaulted the deceased. He moved close to the mob and they dispersed. He then arrested the deceased. The second accused stated in his confirmed warned and cautioned statement that whilst at the party the deceased was assaulted by a mob that had come from Waverly shops. A policeman who was at the party restrained the mob and arrested the deceased. On the other hand the third accused stated in his confirmed statement that whilst at the party the deceased was assaulted by a mob that had come from Waverly shops. A policeman who was at the party then restrained the mob and formally arrested the deceased. HH 568-15 CRB 155-157/10 The versions given by the accused persons contradict their testimony and defences. The warned and cautioned statements claim that the deceased was lynched by a mob that took him from the party. In their testimony the accused persons claimed the deceased was lynched along the way when they met people coming from the shops. Going by Rodrick Madzivanyika’s evidence, the deceased was not assaulted by any mob whilst at the party. The only persons who assaulted him at that stage were accused two and three. When the deceased was taken away the witness did not see any crowd of revelers intercepting them. The question then is who inflicted the fatal injuries on the deceased. The other question is why the deceased had to be bundled in the boot of the car with his hands bound at the back. This is more pertinent taking into account his inebriated state. Notwithstanding that the first accused was not implicated in the assault that took place prior to the deceased being taken away some legal aspects arise from his association with his co-accused. This is because he placed the deceased under arrest and took him away whilst in the company of his co-accused. What are the duties of a police officer who arrests a suspect? Is he supposed to surrender custody of such a suspect to civilians? What if, as happened in this case, the suspect turns up badly injured at a police station and dies shortly thereafter? Can he not be associated with what befell the deceased? I posed these issues at the time the accused persons applied for discharge at the close of the state case. I cannot see these issues being resolved in favour of the first accused. All the accused persons must have further assaulted the deceased after they left the party. We do not think it can be said the accused persons meant to kill the deceased. Neither can it be said that the accused realized the real risk or possibility of death ensuing but were reckless in the circumstances. That the accused were authors of the fatal assault can be inferred from the facts of the matter. The second and third accused first assaulted the deceased in the presence of Rodrick Madzivanyika. They then took the deceased away with them. It is improbable that the deceased was lynched by a mob. This is because none of the accused could identify any of the mobsters. In addition, the accused persons contradicted themselves materially on how the mob desisted from assaulting the deceased. It is not clear what any weapons were used against the deceased. The trial prosecutor easily capitulated when he sought to produce some weapons and the defence objected. What is apparent is that blunt force caused the injuries on the deceased. It is the nature of the blunt force that remains unresolved. In addition, the duration of the assault was not established. All this could have assisted in determining whether there was the real risk or possibility of HH 568-15 CRB 155-157/10 causing death in the circumstances thereby warranting a finding of murder in terms of s 47 (1) (b) of the Code. The accused persons get the benefit of the doubt in that regard. That brings the issue of the permissible verdict of culpable homicide. Where one assaults another without intention to kill and the victim of the assault dies, the perpetrator of the assault would have been negligent for failing to realize that death may result from such conduct. Considering that the deceased person was not a threat to the accused persons, there was no justification in using force against him. Going by the medical evidence the deceased was badly assaulted and sustained internal injuries. He was simply lynched because he was suspected of having stolen petrol belonging to the second accused. A reasonable person would not have acted in such manner as to cause unnecessary harm. Were it not for the conduct of the accused persons, the deceased would not have sustained the injuries that led to his death. In this respect see s 16 of the Code. Thus the accused persons owed a duty of care not to harm the deceased. They breached this duty by assaulting and harming the deceased who died as a result. The natural and probable consequence of negligent conduct in such circumstances is the death of the victim of the unlawful conduct. See S v Muchembo 2008 (1) ZLR 1 (H). It would be immaterial that the accused persons did not foresee the exact manner of death. As was stated by McNally JA in the unreported case of S v Tanga S-37-93 at p 8 of the cyclostyled judgment- “As to foreseeability, it seems that if even by means of a minor assault, you knock a man down and he hits his head and you kick him in the midriff, you must foresee the possibility of serious injury or even death. It is not necessary that you foresee the actual way he might die…..” The assault in the present case was serious and gratuitous as it was only actuated by the desire to mete out punishment on a suspected thief. The accused persons get the benefit of the doubt regarding murder in terms of s 47 (1) (b) of the Code on account of the state’s failure to prove whether any weapons were used. Accordingly, all accused persons are found guilty of culpable homicide in terms of s 49 of the Code. Prosecutor-General’s Office, legal practitioners for the state V. Nyemba & Associates, accused’s legal practitioners