S v Momberume & Ors (HH 76 of 2004) [2004] ZWHHC 76 (22 March 2004)
Full Case Text
HH 762004 CA 1524/04 SAMSON MOMBERUME AND 9 OTHERS versus THE STATE HIGH COURT OF ZIMBABWE KARWI J AND BHUNU J HARARE, 23rd March, 2004 Mr Mushonga, for the applicants Mr Chikafu, for the respondent BHUNU J: The 10 appellants and the complainants were members of two rival factions of the Johanne Marange Apostolic Faith led by Noah Taguta and Clemence Momberume respectively. On the 18th July 2001 both factions attended the funeral of one of their church members Oliver Momberume at Taguta Village, Chief Marange in Mutare. Public violence erupted between the two factions following disagreements concerning the provision of a coffin for the late Oliver Momberume. During the fracas the members of the complainant’s faction were assaulted and property valued at $440 130.00 including the coffin was destroyed. This led to the 10 appellants together with others being charged and convicted of public violence for which they were sentenced to 36 months imprisonment of which 10 months were suspended for 5 years on the usual conditions of good behaviour. A further 10 months imprisonment were suspended on condition of restitution. Effective 16 months imprisonment. They now appeal against both conviction and sentence. In their defence all the accused persons denied ever having assaulted the complainants or destroyed their property in the manner alleged or at all. They allege that they were in fact the victims of public violence who were subjected to violent assaults by the complainants without retaliating. After beating up the accused, the complainants burnt and destroyed their own property to falsely implicate the accused persons. The accused did not however give any cogent explanation as to how the complainants sustained severe injuries as reflected in one of the medical report exhibit 5. In that medical report the doctor diagnosed that the complainant received over 10 blows sustaining serious injuries and a 20% disability. HH 762004 CA 1524/04 It is unthinkable and not in the least probable, that the complainant could have inflicted that sort of injury on himself, maiming himself for life for the sole purpose of falsely implicating members of a rival church faction. There was no substance in the accused’s defence that the charge did not pertain to Ignatious Momberume because he was assaulted on the 19th of July 2001 and not on the 18th of July 2001. This is for the simple but good reason that the evidence established that the violence extended from the late hours of the 18th to the early hours of the 19th of July 2001. That evidence was not challenged at the trial. The learned trial magistrate therefore correctly found that Ignatious was injured in the fracas giving rise to the charge of public violence. The evidence on record established that the fracas involved people who were well known to each other and the violence took place over a protracted period of time. The police had to call for reinforcements to quel the violence. That being the case, the question of mistaken identity did not arise. There were convincing eye witnesses accounts of the events of that day. As such the learned trial magistrate cannot be faulted for concluding that the complainants correctly identified their assailants. In a case of this nature it is not necessary to establish who did exactly what, suffice it, to say that the state only has to show beyond a reasonable doubt that the accused were acting in concert and common purpose and that each accused was actively associating himself with the unlawful conduct – see S v Chaita and others SC 120/04. It is common cause that the appellants were members of the rival faction which perpetrated the public violence at the funeral. They were undoubtedly at the funeral during the course of the public violence because in their defence outline they said so. An attempt by accused 2 and 5 to raise the defence of an alibi is futile because they did not raise it in their defence outline. The defence clearly is an afterthought and the product of recent fabrication. It is an attempt to close the stables after the proverbial worses have bolted. Although the two could have gone to Mutare to purchase the coffin they must have returned in time to join in the fray. This is because the public violence erupted late in the evening of the 18th of July to the early hours of the following morning. There is also evidence tending to suggest that the coffin may very well have been bought after the public violence. Accused 1 and 3 and their defence witness’ evidence to the effect that they were merely sitting around a special fire for dignitaries without intervening while public violence HH 762004 CA 1524/04 of this magnitude was going on over a protracted period of time is incredible and unbelievable. It is therefore not surprising that the accused and their defence witness were disbelieved. It is equally incredible that accused 1 could have remained peacefully asleep during the course of public violence of such magnitude as correctly found by the learned trial magistrate. The evidence on record clearly established beyond reasonable doubt that the appellants were members of the rival faction, which engaged in the public violence. They did not dissociate themselves from the public violence but were actively associating themselves with the unlawful conduct of their colleagues. The criticism levelled against the learned trial magistrate is wholly unwarranted. His analysis of the evidence findings of facts and application of the law is beyond reproach and exhibit no misdirection. In the result the conclusion that the appellants were correctly found guilty as charged is inescapable. As regards sentence, the accused are members of a respectable church organisation, as such they need to lead peaceful and exemplary lives. Their conduct on that day was not only unlawful but contrary to the norms, values and tenets of all Christian teachings and morality. Their conduct in interfering with and disturbing a dead body and burning the coffin was a horrific act of terror. The complainants were subjected to protracted relentless acts of violence yet the accused did not repent. It needed the intervention of armed police to quell the violence. Not only did the accused destroy property but they also caused serious injury to their victims. One of the complainants was maimed for life sustaining a 20% permanent disability. While the accused are responsible family men the trial court would have failed in its duty to protect society from acts of this nature if it had not passed a stiff and deterrent sentence as it did. There was need to send the necessary message home that rivals must learn to peacefully coexist, dead bodies and other people’s property must be respected. In the result it is our considered view that the penalty meted out by the court eminently fits the offenders and the offence committed. It does not induce any sense of HH 762004 CA 1524/04 shock considering the accused’s high moral blameworthiness. There having been no misdirection on the part of the trial court there is no basis for this court to interfere with the conviction and sentence. It is accordingly ordered that the appeal be and is hereby dismissed. That the conviction and sentence be and is hereby confirmed. Karwi J, agrees: ………………………