THE State V Richard Makatani & 5 ORS

### Preamble
1
HCC12/24
CRB 73/22
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THE STATE

Versus

RICHARD MAKATANI

And

ANDREW MUNODAWAFA

And

ZACHARI CHIKOWERO

And

TAPFUMANEYI MAPANI

And

KUDZANAI BAKO

And

SAUL TIRIVANGANI

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 16 February 2024

G.T. Dhamusi for the State

N. Mugiya & L. Mutambisi for the accused

Assessors: 	Mrs Mawoneke

Mr Manyangadze

MUZOFA J: This case was either poorly investigated or was deliberately scuttled to cover up misconducts or sheer ineptness by police officers at Nyabira Police Station. Our conclusion is inescapable considering the evidence placed before us. Shoddy investigations compromise the proper administration of justice. Such handling of cases is an indictment to the justice delivery system and dents the image of the police. The deceased’s family will remain with unanswered questions forever.

The six accused persons appeared before the court facing one count of murder in contravention of s 47 (1) of the Criminal Code. The state alleged that on the 25th of July 2020 the accused persons with common purpose assaulted the deceased indiscriminately with logs, open hands and clenched fists leading to his death. They suspected the deceased to have stolen the 1st and 4th accused’s cattle. They then dragged him to their vehicles and took him to Nyabira Police Station. The deceased later died of injuries.

The accused persons denied the offence. Although they admitted arresting the deceased on the day, they denied ever assaulting him. They said they took him to Nyabira Police Station, where he was detained. The accused claim that, they later learnt that the deceased had attempted to escape from police custody. He was apprehended by the police who badly assaulted him.

The background to the case is not disputed. The accused persons and the deceased lived in the same community at Mede Farm, Nyabira. On 25 July 2020 the 1st and 4th accused’s cattle were stolen. Two from the 1st accused and one from the 4th accused. The deceased was their prime suspect. They decided to apprehend the deceased.

The 1st and 5th accused persons provided their motor vehicles for use. They enlisted the services of the police. So when they went to apprehend the deceased they had a police officer in their company. They proceeded to Mede village where they left the cars along the road some short distance from the deceased’s place. The police officer remained in one of the cars. They found the deceased in a garden with a colleague. What transpired in the garden and along the way to the cars is disputed and it forms the basis of the charge.

The State Case

All the accused persons’ warned and cautioned statements were produced by consent. In their warned and cautioned statements they admitted that they arrested the deceased but denied assaulting him. Affidavits by health officials who handled the deceased’s body were also produced by consent. The post mortem report which showed that death was due to brain injury, severe head trauma was also produced by consent.

Seven witnesses gave oral evidence. Willie Wire ‘Willie’ was in his garden with the deceased on the fateful day. He knew the 1st, 2nd, 3rd, 4th and 6th accused persons since they reside in the same area. He knew the 5th accused only in connection with this case. He told the court that the 1st, 2nd and 6th accused persons got to the garden first. While they were talking with them, the 3rd, 4th and 5th accused persons also arrived.  They said they were police officers and were looking for the deceased. A conversation ensued between the deceased and the accused persons. They intended to take the deceased. They argued with the deceased. The deceased requested to put on his shoes. The 1st, 3rd and 6th accused persons slapped the deceased at intervals. The deceased fell down and was rolling on the ground as they kicked him with booted feet. People gathered to watch the unfolding scene. Dust rose like a massive cloud from the ground. He urged the accused to leave his garden. The 2nd accused obliged and he directed the rest of the accused persons to stop. When they left the garden, he went to tell the deceased’s family about the assault.

The deceased’s juvenile child X gave evidence. He received information from Willie that his father, the deceased was being assaulted by their garden. He immediately rushed to the garden. Before he got to the garden, he observed accused persons and the deceased moving from the garden towards the road. He saw the 1st, 2nd, 5th and 6th accused. He identified the three accused persons by name but the 6th accused he identified by his alias ‘Madhongi’. The accused held logs that they used to hit the deceased on the back of the neck. He screamed. When the accused noticed the witness, they threw away the logs. However, they continued to drag the deceased towards the road. He observed that the deceased was bleeding from the nose. He had blood on his hands and shirt. He followed the accused until they got to the road where a policeman was seated in a motor vehicle. They took the deceased away.

Elizabeth Masarura an elderly woman was the third witness. She was calm and eloquent. Her homestead was along the road where the accused had parked their cars. She heard a child crying. She checked and noticed that it was X. She could not identify the accused persons by name. She saw one of the accused holding the deceased by his belt while others were hitting him with open hands. She observed that the deceased was bleeding from the nose.

Morgan Dare a villager whose homestead was near the road also gave evidence. He heard a child’s cry. He went to investigate. He saw the accused persons with the deceased by the motor vehicle. The deceased asked for a cigarette. He observed that the deceased had bloody hands. His clothes were also bloody. The deceased was handcuffed by the 5th accused person.

Thomas Tokiyo the deceased’s son arrived when the accused were by the road side. He did not see much of the assault. He said the deceased looked weak, he was bleeding from the nose, his hands and shirt had blood. The applicants threatened him with death if he intervened to save his father.

Two police officers gave evidence. Their evidence left more questions than answers. Freddy Mabota was the investigating officer in the stock theft matter wherein the 1st and 4th accused’s cattle were stolen. He performed badly for a police officer. The police are colloquially referred to as professional witnesses, most of them are in and out of court giving evidence. They are expected to tie together all the loose ends. It was the opposite in this case. Instead of creating a convergence in the evidence Mabota’s evidence was confusing to say the least. It was evident that a lot of information was concealed from the court. He was an implausible witness whose demeanour was not impressive at all. He took his time to answer questions. He was evasive and very hesitant in his responses.

He said he accompanied the accused persons so that they could show him an informant in the stock theft case he was investigating. He remained in the car. He denied that the deceased was assaulted, he denied that he was bleeding from the nose and had bloody hands. He said when he later discovered that the deceased was not linked to the stock theft, he handed him over to Constable Makoshori who was investigating a case of stolen pipes where the deceased was implicated. The deceased was in good health at the time of handover.

Retired Inspector Zimanyiwa the last witness put the whole matrix into place. His evidence was that when the deceased died, the 5th accused alleged that he was assaulted by the police while in police custody. Constable Mabota was investigated for his inept conduct to unleash members of the public to effect arrest on the deceased. Thus, according to him Constable Mabota’s evidence could be compromised to cover up his shoddy work. His investigations did not confirm the allegations by the 5th accused. The deceased was not assaulted by the police while in custody.

The State then closed its case. An application for discharge at the close of the State case was made.

Application for discharge at the close of the State case

Mr Mugiya applied for discharge of the accused in terms of s198 (3) of the Criminal Procedure and Evidence Act. We dismissed the application in a separate judgment. In short, we concluded that there was evidence that all the accused persons approached the deceased by the garden. When they apprehended the deceased, he resisted and they assaulted him.

In terms of that section, the court does not consider whether there is evidence against the accused in respect of the preferred charge only, it must also consider if there is evidence upon which a conviction on any competent verdict is sustainable. The question is whether there is prima facie evidence against the accused in respect of the preferred charge or any competent verdict upon which a reasonable court might convict? See Attorney-General v Mzizi 1991 (2) ZLR 321 (SC), S v Kachipare 1998 (2) ZLR 271 (SC), AG v Makamba 2005 (2) ZLR (SC).

Our finding was that there was evidence of an assault on the deceased by the accused persons to warrant them to be placed on their defence.

The Defence Case

Each accused person gave evidence outlining what transpired on the day. They stuck to their defence outline that they only apprehended the deceased and handed him over to the police. The deceased had at one point tried to resist but they manhandled him and he eventually cooperated and walked to the road where the cars were parked. The 5th accused insisted that he only provided transport on the day. He had no interest in the matter.

Four witnesses were called in addition to the accused giving evidence. Takesure Mazuru, was the first witness. He was a manager at Alid Farm. On the 25th of July the 5th accused who was in the company of the deceased got to the farm. They had a small car. He did not recognise some of the occupants. The 5th accused requested for transport to ferry the deceased to Nyabira Police Station. He saw the deceased, he had no blood and could walk on his own. There was no police man. He said the deceased was not handcuffed.

Tungamirai Tawanda gave evidence. He intended to meet with the 5th accused person as they were both politicians. When he called the 5th accused and learnt that the 5th accused was at the police station with the deceased a suspect in a stock theft case they agreed to meet at the station. When he arrived at the station, he saw the deceased he had no injuries. The deceased actually requested for a cigarette from him.

Constable Mapfumo of Nyabira Police Station’s evidence just reduced the whole case to a maze. He said he was on night duty. When he arrived at the station, he saw the deceased. He was fit and looked healthy.

He prepared to go for traffic duties set up a road block around 10pm. He went outside to change his clothes, one wonders why a police officer would change clothes outside. The deceased had already been booked and was to be taken to the police cells.

The deceased walked with the police to the cells. He could clearly see them as there was proper lighting. The deceased was in front and constable Makoshori and another constable. When they got to the edge of the building just before the cells the deceased started running towards the gate. The police chased him. The deceased ran into the dark. After sometime constable Makoshori returned with the deceased. He inquired how they apprehended the deceased. Constable Makoshori advised him that the deceased fell into a depression and hit his head on the railway line. The two officers started assaulting the deceased with open hands. Under cross examination he said the deceased was a well-known criminal in the area. The police slapped him twice.

Ranganayi Mtetwa a manager at Carswell Farm Nyabira was approached by Police Nyabira to assist them with transport. The police wanted to ferry a seriously ill suspect to Parirenyatwa Hospital who happened to be the deceased. This was around 12 midnight on the same day when deceased was booked into police cells.

He obliged and proceeded to the police station. The police brought the deceased in handcuffs. He was concerned why a seriously ill person would be handcuffed. He asked the police about such indiscretion. The police explained that the previous day the deceased had tried to escape. They apprehended him by the railway line. He took the deceased to Parirenyatwa. He could not walk, the police had to lift him. His cross examination did not elicit much information as he was not privy to what transpired either at the garden where the deceased was apprehended or at the police station.

The defence then closed its case, but not before Mr. Mugiya placed on record a damning submission. Counsel indicated that they intended to call more police officers but they were uncooperative due to fear of victimization. Although the veracity of the submission could not be proved, it appears as already stated that there was a lot of chicanery behind the scenes in this case by the police to cover up for something that the court may not be privy to.

Factual and Legal Analysis

In order to sustain a charge of murder, the State must prove that the accused were both the factual and legal cause of the deceased’s death. In this case the State must prove beyond a reasonable doubt that the accused’s conduct was the proximate cause of the death. See S v Mtisi HMT 28/21.

The State witnesses placed all the accused at the scene at the garden. They did not deny being at the garden. Willie was with the deceased in the garden. He had no reason to falsely implicate the accused persons. Infact, they misrepresented to him that they were police officers. Constable Mabota delegated his duty to the accused persons to effect an arrest. There was an obvious dereliction of duty by the officer. Willie’s narration of events coincided in some parts with what the accused said in their defence. For instance, that the deceased resisted being apprehended. They tussled with the 2nd accused and fell. A cloud of dust filled the air. They only differ in the assault. In our view if the deceased resisted, they must have used some force to subdue him. This was done by assaulting him. They assaulted the deceased. We accept Willie’s evidence in its totality. However, the deceased could still walk.

X gave a detailed version of what he saw, this was the deceased’s son. He must have been traumatised seeing his father assaulted and manhandled by the accused. Bearing in mind the relationship we are cognisant of the human instinct to exaggerate in order to avenge his father’s harsh treatment. He spoke of logs being used to assault the deceased. The way he described the assaults the deceased could have been seriously injured. However, he could still walk by himself. He was seen at Alid Farm walking. However, we accept that he was bleeding. Elizabeth and Morgan did not know the accused persons. They only saw the deceased who was bleeding. There is no way they could have falsified evidence. If these two saw the blood on the deceased the only inference is that the accused had assaulted him at the garden and or along the way to the road where they had parked their cars.

Unfortunately, at this stage there was no evidence of the extent of injuries inflicted by the accused persons. This is because when the deceased was taken to the police station there were allegations that he was assaulted by the police. At the police station, the State conceded that the police might have deliberately bundled up investigations.

The State too did not salvage the situation. The State was aware of the defence case that the police assaulted the deceased. There was no evidence that on detention the deceased reported the assault or even any documentation about his detention. There was no hand over documentation from Mabota to Makoshori. Makoshori who took deceased for further investigations in respect of theft of pipes was not called to give evidence.

Although retired officer Zimanyiwa tried to do some damage control, he could not do much. Infact he further poked holes in the police investigations. He was introduced to this investigation after an allegation was raised that the police had assaulted the deceased. He said he conducted the investigations and the allegations were not substantiated. He said when he interviewed the police officers on duty that day, they said the deceased did not attempt to escape. We wondered if he interviewed Constable Mapfumo who told the court that the deceased escaped from police custody. He was later apprehended and assaulted. Most of his evidence before the court was not in his police statement. Under cross examination he could not explain why he left out some crucial information about his investigations. As a senior officer he should have known better. This diminished his credibility. No documentary evidence was produced to support his claim that he investigated the matter and the outcome.

The State could have done better in this case. This was a case that required a more hands on approach by the State. It failed to do so, it simply placed bare bones before the court.

When Zimanyiwa took over investigations, he did not record statements from the former investigating officer Ndlela. He conceded that if deceased had been injured, a report must have been made so that he could be taken to a clinic. There was no such report or even some documentation.

He did not record a statement from Constable Makoshori. Although he checked the detention book, he did not check who detained the deceased. He did not even record a statement from the person. There is also evidence that the deceased fell by the railway line. The police confirmed this to Mtetwa.

The denial by accused persons that they did not assault the now deceased at all cannot be sustained in view of the evidence placed before us. Elizabeth saw some of the accused slapping the deceased. Morgan observed that the deceased had bloody hands. These two witnesses had to interest at all in the case. They went to the road in response to a child’s cry. Thomas also noticed that the deceased was bleeding from the head.

Our finding is that, the deceased was assaulted at different times by different people. At the garden and on the way to the parked motor vehicles he was assaulted by the accused persons. At the police station, we accept that the deceased must have attempted to escape. He was apprehended and assaulted by Constable Makoshori and another police officer. There is also the probability that he could have hit his head on the railway line.

There is no doubt that the accused acted in common purpose. They teamed up together to arrest the accused. Section 196 A of the Criminal Code which codified the common law principle of common purpose extends liability to two or persons who associate to commit an offence together. The state has to establish that each one of them had the requisite mens rea to commit the offence. Once that is established, the conduct of one is imputed on the others. In this case the accused were seen assaulting the deceased at intervals first at the garden, on the way to the road and by the road side. None of them dissociated themselves with the assaults.  S v Masawi 1996 (2) ZLR (SC) p472.

The  next question that arises is whether the accused persons’ conduct was the proximate cause of the deceased’s death. Put differently was there a   novus actus interveniens that might have broken the chain of causation which would explain the now deceased's injuries? A novus actus interveniens, or nova causa interveniens is an abnormal, intervening act or event, judged according to the standards of general human experience, which serves to break the chain of causation: see South African Criminal Law and Procedure, vol. 1, 4th ed., by JONATHAN BURCHELL, at p 102.

There must be a causal link between the accused’s conduct and the ultimate result. There is no doubt that the deceased died due to severe injuries. The post mortem report produced before us was very detailed. The diagram showed that the deceased had injuries all over the body on the chest area the hands and back.

The difficulty that arises is who caused the injuries that subsequently led to the deceased’s death. Mtetwa the person who ferried the deceased to the Hospital had sight of the deceased. The deceased looked critically injured and could not walk. If indeed the deceased had been so badly injured at the time he was taken in from the accused and Makoshori, the police would have documented and probably investigated the assaults. We were told that was the standard procedure. It was not done. The probabilities of the case may be that the accused assaulted the deceased and the police also assaulted the deceased.

For an act to constitute a novus actus it must be an abnormal event, not within human contemplation that breaks the chain of causation. When a suspect is arrested and taken in by the police the law safeguards his or her rights and indeed contemplates that the accused would not be subjected to any assault. In this case the assault by the police was proved by the defence. The State literally dithered and could not controvert the evidence placed before the court.

The challenge is that there was no evidence of the injuries sustained by the deceased as a result of the assault by the accused at the time he was taken in by the police. In the absence of that evidence, it is very difficult to lay the death of the deceased at the feet of the accused. The police had a hand in the death. In our view the assault perpetrated by the police constitute a novus actus.

Accordingly, all the accused persons are found not guilty of murder.

The accused are found guilty of assault in contravention of section 89 of the Criminal Code.

Sentence

In coming up with the appropriate sentence, the court will take in account the accused persons’ personal circumstances. They have family responsibilities. They are first offenders. They were in custody for two months before they were granted bail.

Although the accused could effect a citizen’s arrest on the deceased in terms of section 30 of the Criminal Procedure and Evidence Act (Chapter 9:07) that right does not in any way justify the assault on the deceased. No evidence was placed before us to justify his arrest. Concomitantly we wonder if reasonable grounds existed to suspect that he had stolen the cattle except that he was a well-known thief. The accused acted in a very despicable manner, their high handedness must be sanctioned. The deceased was a suspect at that stage. To make matters worse Constable Mabota who investigated the matter later released him on the stock theft charges. There was nothing linking the deceased to the stock theft. In S v Chipere 1992(2) ZLR 276 (SC) where a police officer assaulted a suspect on arrest, a custodial sentence of 5 months imprisonment was confirmed. Although in that case the accused was a police officer the principle is that there is no justification for an assault while effecting an arrest.

The challenge that arises in sentencing the accused is that there is no medical affidavit which relates to the assault by the accused. It would be improper to ascribe all the injuries on the Post Mortem report to the accused.

The court will take into account the description of the assaults by the state witnesses and that the deceased bled from the head. The deceased was assaulted by a group of people which is aggravatory. A log was used in the process. The court must balance the interest of the accused, the interest of justice and the offence. It is not within the interest of justice that those that arrest suspects assault them. A fine would be inappropriate in this case considering that the deceased was assaulted by a group of people.An effective custodial sentence would be too harsh in the circumstances considering that the accused arrested the deceased with the blessing of Constable Mabota and that the court does not have evidence of the extent of the deceased’s injuries.

Accordingly the accused are sentence as follows,

Each accused is sentenced to 24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition each of the accused persons within that period is not convicted of an offence involving violence on the person of another of which upon conviction he is sentenced to imprisonment without the option of a fine.

The remaining 18 months imprisonment is wholly suspended on condition each accused completes 630 hours of community service as follows,

Accused 1- Richard Makatini to perform community service at Hilbre Primary School

Accused 2- Andrew Munodawafa to perform community service at Cardiff Primary School

Accused 3- Zachariah Chikowero to perform community service at Cardiff Primary School

Accused 4- Tapfumaneyi Mapani to perform community service at Dellamore Secondary School

Accused 5- Kudzanai Bako to perform community service at Dellamore Primary School

Accused 6- Saul Tirivangani to perform community service at Ardrey End Primary School

The community service for 1st, 2nd, 4th, 5th and 6th accused persons starts on 7 august 2023 and on 9 October 2023 for the 3rd accused person and must be completed within 18 weeks. It must be performed between the hours of 8am to 1pm and 2pm to 4pm each Monday to Friday which is not a public holiday to the satisfaction of the person in charge of the institution, who may on good cause grant the accused permission to be absent on a particular day or days or during certain hours but such leave of absence shall not count as part of community service to be completed.

National Prosecuting Authority, the State’s legal practitioners.

Mugiya and Muvhami and Partners, the accused’s legal practitioners.