Taison Hove v The Trial Officer (No) (Superintendent Mtepfe) and The State

### Preamble
1
HB 278/20
HC 1354/19
---------


TAISON HOVE

Versus

THE TRIAL OFFICER (NO)

(SUPERINTENDENT MUTEPFE)

And

THE STATE

HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 5 FEBRUARY AND 26 NOVEMBER 2020

Opposed Application

B Masamvu, for the applicant

Ms B T Nyoni, for the respondents

TAKUVA J:		This is an application for review of proceedings and decision of a Trial Officer in terms of the Police Act   I must point out from the outset that despite the nomen-clature, these proceedings are of a civil nature.   However trial procedure must closely resemble trials in the Magistrates Court.  The applicant seeks the following relief;

“1.	The application be and is hereby granted.

2.	That the decisions of the 1st respondent done on the 15th of January 2019 be and are hereby set aside.

3.	The applicant is hereby granted leave to approach the Constitutional Court of Zimbabwe on the Constitutional issues raised.

4.	The respondents to pay costs on attorney and client scale jointly and severally one paying the other to be absolved.”

The applicant a member of the Police Service was alleged to have fired a series of vitriolic utterances against the President of Zimbabwe at Countryside Bar Lupane Busines Centre.  That allegation earned him a charge in terms of the Police Act.  It is necessary for reasons that will be clearer later in this judgment to reproduce the precise wording of the charge.  It reads;

“Contravening paragraph 35 of the Schedule to the Police Act Chapter 11:10 as read with section 29 and 35 of the said Act, “Acting in an unbecoming manner or in any manner prejudicial to good discipline or reasonably likely to bring discredit to the Police Service.” In that upon the 8th day of March 2018 and at Countryside Bar, Lupane Business centre the accused being a member of the Police Service did wrongfully and unlawfully acted in a manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Service, that is to say the defaulter saw a passer-by wearing a T-shirt with a picture of His Excellency, The President of the Republic of Zimbabwe and Commander In-Chief of the Defence Forces and shouted that; “Ma T-shirts akadai anopfekerwa kumunda meaning such T-shirts should be worn on farms and not in town.  He went further shouting saying, “Mnangagwa imhata, tirikutambura nokuda kwake, ED Mnangagwa akoniwa tirikutambira mari yakaenzana ne US$100.  Mnangagwa imbwa ngaape Nelson Chamisa hutongi kuti tiwane mari yekuAmerica.”meaning Mnangagwa is an ass, we are suffering because of him,  ED Mnangagwa has failed hence civil servants are getting salaries equivalent to US$100.   Mnangagwa is a dog and should hand over power to Mr Nelson Chamisa to pave way for the United States Dollar.

ALTERNATIVELY

Contravening section 48 (1) as read with subsection 2 (g) of the Schedule to the Police Act Chapter 11:10 as read with s. 29 and 35 of the said Act, “Does any act whereby the public might reasonably be induced to identify him with an organization or movement of any political character.”  In that upon or about the 8th March 2018 and at Countryside Bar Lupane Business Centre the accused being a member of the Police Service did wrongfully and unlawfully does any act whereby the public thereof might reasonably be induced to identify him with an opposition political party namely MDC Alliance, that is to say …” The uttered words are the same as in the main charge.  Therefore repeating them will serve no meaningful purpose.

The applicant pleaded not guilty and after a series of unsuccessful applications trial eventually commenced.  The following evidence was led by the State:

1.	Hlelenje Ncube was in the bar watching soccer when he heard the applicant say “these T-shirts should be worn on the farms and not in town.  Applicant was referring to a passer-by who was wearing a ZANU-PF T-shirt with the President’s picture.   He also heard the applicant saying the President is an ass who is starving him.  Finally the witness said he heard the applicant utter the words “Mnangagwa imhata titikutambura nenzara.”

Under vigorous cross-examination, the witness stuck to his version.  He said the applicant was shouting at the top of his voice.  This witness was criticized for not being “consistent” and that he did not understand what was said in Shona since he is Ndebele speaking.  He was also questioned on whether or not the applicant referred to “ZANU T-shirts or “ZANU-PF”T-shirts?  The witness was adamant that the applicant said “ZANU PF T-shirts.” In his ruling, the trial officer believed this witness testimony

2.	The second witness was Innocent Mkwananzi, the bar man who said he was in that bar where music was played loudly such that he did not hear applicant say anything about President Mnangagwa or ZANU PF.  However he heard applicant saying to Tayisi “I don’t mind that you work in the President’s office.” He did not hear much because he was busy.  He used to see applicant playing snooker with Tayisi in that bar.

3.	Sibangani Silwangani testified next.  He is a teacher by profession and he knows applicant as a Police Officer stationed at Lupane Police station.  His evidence was briefly that, on the day in question he was playing pool against Tongai Tayisi at Countryside Bar while applicant was seated closer to the Bar counter 4m away drinking alcohol with his friends.  He then heard applicant say in Shona language;

“E.D. wakoniwa vakomana, tirikutambura, tiri kuhora mari yakaenzana ne 100 US Dollars.”meaning E.D. has failed, we are suffering earning an equivalent of US$100-00.  Tongai then remonstrated him but applicant retorted that Tongai should not intimidate him saying he did not mind losing his job in the Police Service.  Tayisi left the bar while applicant continued drinking beer.  Due to noise in the bar he only heard part of the conversation and not everything but heard the applicant say even if you cause my dismissal from the ZRP, it does not matter.

In cross-examining this witness, the defence counsel concentrated on suggesting that the words did not constitute an offence since they were applicant’s opinion which he was entitled to express.  It was also put to the witness that the applicant did not insult the President.

4.	The State’s 4th witness was Tongai Tayisi who works in the President’s Office.  He had known applicant for 2 years prior to this incident.  He also knows applicant as a Police Officer at Lupane Police Station.  On the day in question, he was playing pool at Countryside Bar with Sibangani Silwangani.  Applicant was in the company of 3 people drinking beer in the bar.  The witness heard applicant “discussing” President Mnangagwa saying, E.D has failed running the country and he must hand over power to Chamisa to pave way for US$.  He went on to say he was prepared to meet with Mnangagwa to tell him to hand over power.  He called the President a dog prompting the witness to warn applicant against insulting the President.  The applicant did not take the advice kindly as he went on to challenge the witness not to abuse his position by threatening people as there was nothing special about the C.I.O.  The witness was close to the applicant and at one stage he was barely 1 metre away.  Applicant and the witness were good friends.  Applicant spoke loudly.

Again under cross-examination the focus was on showing that to refer to a human being as a “dog” is not insulting and that the reference to Mnangangwa did not mean it was the President who was being discussed.  He said he did not hear the applicant utter the words referring to the President as an ass or any reference to ZANU-PF T-shirts.The State closed its case.  Instead of taking the witness stand in his defence applicant opted to apply for discharge at the close of the State case.  The application was dismissed hence this application.

THE LAW

The law regarding such applications is settled – see AG v Bvuma & Anor 1987 (2) ZLR 96 at 102.

Tsvangirayi & Ors v S HH 119-03

Kachipare v S 1998 (2) ZLR 271 (S) at 276.

AG v Mzizi 1991 (2) ZLR 321 (S) at 323 B

AG v Tarwireyi 1997 (1) ZLR 575 (S) at 576G.

The starting point is section 198 (3) of the Criminal Procedure and Evidence Act Chapter 9:07.  It states;

“If at the close of the state case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

In Hartlebury and Anor 1985 (1) ZLR 1 (HC) McNALLY J laid down three instances where an accused should be discharged at the close of the state case, as where;

(a)	There is no evidence to prove an essential element of the offence – see AG v Bvuma & Anor 1987 (2) ZLR 96 (S).

(b)	There is no evidence on which a reasonable court acting carefully might properly convict, see AG v Mzizi 1991 (2) ZLR 321 (S) at 323 B.

(c)	The evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court would safely act upon it, see AG v Tagwirei 1997 (1) ZLR 575 (S) at 576 G.”

In casu the grounds for review are put thus:

“(a)	The 1st respondent grossly misdirected himself in dismissing the applicant’s application for discharge at the close of the state’s case.

(b)	The 1st respondent from his decision of the 31st May 2019 clearly misdirected himself as he failed to address the issues raised in the application for discharge in his decision.

(c)	The 1st respondent grossly misdirected himself in his reasoning and interpretation of the law and the application before him.

(d)	The 1st respondent grossly misdirected himself in deciding that the applicant should be placed on his defence because the state should also cross-examine him.

(e)	The 1st respondent grossly misdirected himself in deciding that the applicant should be placed on his defence when he did not find that a prima facie case was established by the state.”

The first ground is so general as to be meaningless.  The second and third grounds amount to the same criticism while, the fourth ground is specific to a conclusion by the trial court.  The last ground relates to a lack of a finding that a prima facie case had been established by the State.

While a reading of the Trial Officer’s ruling reveals that the correct legal principles and case law were cited, the ruling itself is not elegantly put.  It is apparent that the Trial Officer considered the submissions made by both parties before arriving at the conclusion that he did.  The court a quo also considered and assessed the evidence together with admissions made by the applicant.  As regards interpretation, the applicant argued that the words were ambiguous.He also argued that there were inconsistencies which lacked corroboration.  The Trial Officer noted on his ruling that out of four state witnesses, 3 agreed while the 4th disagreed with them.

I take the view that the proper approach to adopt is that laid out in the Harlebury case supra.  Firstly, can it be said that the Trial Officer misdirected himself by placing applicant on his defence where there was no evidence to prove an essential element?  In my view, the answer is in the negative for the following reasons.  Firstly, the applicant’s legal practitioner went on a tangent and failed to appreciate the essential elements of the charges his client was facing.  The defence was pre-occupied with the wrong charge namely “Insulting the President.”  That this was not the charge is clear from the main charge and the alternative charge.

The record of proceedings is awash with questions whose effect was to show that the President was not “insulted.” I will just give a few.  On page 63 the questioning went on like this;

“Q -	What exactly insulting words did he say?

A -	He said Mnangagwa imbwa.

Q -	What is insulting about that.

A -	It becomes insulting when you refer to a human being as a dog.”

…

On page 64 appears the full exchange;

“Q -	The community refers to the head of state as the crocodile is it insulting and no-one complains?

A -	Its up to the court to decide …”

Further on page 66 the questioning went thus;

“Q- …	You said President Mnangagwa failed to run the country and he should hand over to Chamisa so as to facilitate the return of US$?

A -	Its all up to the court to decide.

Q -	Is the statement insulting?

A -	Its up to the court to decide.”(my emphasis)

The main charge’s essentials are that of “Acting in an unbecoming manner or in any manner prejudicial to good discipline or reasonably likely to bring discredit to the Police Service.  (my emphasis).  The question is whether the alleged words were uttered and if so whether they were likely to make people stop respecting the Police Service and its members and not the President.  Put differently was it likely that the words would cause damages to the Police Service as a whole looked at objectively.

As regards the alternative charge, the essential elements are to be gleaned from its definition in the Police Act where it is put as;

“Does any act whereby the public might reasonably be induced to identify him with an organization or movement of any political character.”

The objective test is used to examine the applicant’s conduct as shown by his utterances.  The question is whether the public might reasonably be induced to identify the applicant with an organisation or movement of any political character?  On the evidence, on record, a prima facie case is made out against the applicant.  He shouted statements of a political nature at a public place where there were 10 or more members of the public.  He specifically mentioned the leader of the opposition whom he pampered with praises while vilifying ZANU-PF and President Mnangagwa.

I find therefore that the Trial Officer did not misdirect himself when he dismissed the application for discharge at the close of the State’s case as the State had at that stage proved a prima facie case on credible evidence.  At this stage, the state need not prove its case beyond a reasonable doubt.  A prima facie case is a case where one can say there has been shown on the evidence led, a probable cause to put the accused on his defence - see Hartlebury’s case supra.

The second scenario where an accused should be discharged at the close of the State case is where there is no evidence on which a reasonable court acting carefully might properly convict.  In casu there is such credible evidence adduced from three State witnesses.  The applicant’s argument or defence has been that even if it is admitted that he uttered those words, they do not constitute a criminal offence.  In my view, a reasonable court acting carefully might properly convict on the evidence.

The third and final scenario is where the evidence is so discredited or manifestly unreliable that no reasonable court could safely act upon it.  In casu, applicant attacks the quality of evidence led on the grounds of lack of corroboration, inconsistencies and ambiguity of words uttered.  As regards corroboration the point is not well taken in that a court is permitted at law to convict on the evidence of a single competent and credible witness – See section 269 of The Criminal Procedure and Evidence Act, Chapter 9:07

The evidence must be clear and satisfactory in every material respect – See S v Mokoena 1956 (3) 8A 81 (A).

In any event I do not agree that there is no corroborative evidence in casu.  Corroboration means evidence, other than that of the complainant which is consistent with the complainant’s version of the facts and which tends to show the guilt of an accused.  The facts to be corroborated must be material ones.  Corroboration can come from evidence adduced by another witness or from the accused’s evidence.  In the present matter, the applicant seems to treat Tayisi as the sole witness whose evidence lacked corroboration.  This analysis or assessment is wrong because Tayisi’s evidence was corroborated by Innocent Mkwananzi who said he heard applicant saying to Tayisi “I do not care that you work in the President’s office.  This amounts to implicatory corroboration.  This exchange shows that all was not well between these two.  Also his evidence was supported by Sibangani and Hlelenje Ncube on E.D’s failure and intimidation.

As regards ambiguity I take the view that applicant’s counsel was not serious by denying that it is demeaning to refer to the head of State as “mhata” or “imbwa.” Whatever Shona dialect one speaks these are not complementary words at all when used to describe a human being’s character or personality.  In any event, the interpretation of words uttered should not detain the court’s mind at this stage of the proceedings.

The point about inconsistencies has no merit in that the applicant’s complaint as based on the fact that all witnesses “heard different things” not heard by the other witnesses.  In my view this is natural specially in circumstances prevailing in casu.  The scene is a noisy bar and the witnesses were concentrating on their respective interests.  Applicant launched a long and angry speech criticizing ZANU-PF and  The State President.  It was a tirade indeed.

There is one other matter I must express myself on.  It is the fourth ground for review,namely that the 1st respondent grossly misdirected himself in deciding that applicant ought to be placed on his defence because the State should also cross-examine him.  This was a misdirection with minimal effect in that it was more of a parting shot after all had been said and done.  His overall approach and analysis of evidence is correct.  Courts are reluctant to interfere with uncompleted cases in lower courts unless in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice – See .A-G Vs Makamba S – 30-05. In the present matter there was no miscarriage of justice.

In the circumstances, the applicant has failed to show that there were gross procedural irregularities in the matter.  There is credible evidence on record warranting that the applicant be placed on his defence as that evidence established a prima facie case.

Accordingly, the application is dismissed with costs.

Mutatu, Masamvu & Da Silva-Gustavo Law Chambers, applicant’s legal practitioners

Attorney General’s Office Civil Division, respondents’ legal practitioners