Refias Masuna v The State

### Preamble
Judgment No. SC 98/19
1
Civil Appeal No. SC 294/18
---------


REPORTABLE	(94)

REFIAS     MASUNA

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GARWE JA, HLATSHWAYO JA & MAKONI JA

BULAWAYO; JULY 23, 2019 & JULY 24, 2019

T. Magwaliba, for the appellant

T. R. Takuva with S. Ndlovu, for the respondent

GARWE JA

[1]	After hearing submissions from counsel, this Court made the following order:-

“(1) The appeal against conviction and sentence succeeds.

(2) The conviction and sentence are both set aside.

(3) The appellant is to be released from custody with immediate effect.

(4) For the avoidance of doubt, the decision whether or not to prosecute the appellant afresh is left to the discretion of the National Prosecuting Authority.

(5) The reasons for this order are to follow in due course.”

What follows are the reasons for that order.

FACTUAL BACKGROUND

[2]	The appellant was employed as an operations manager of a Bulawayo – based company called Manifest Security (Pvt) Limited (“Manifest Security”).  At the time of the occurrence of the events that gave rise to the prosecution of the appellant, Manifest Security was providing security services at Zulu 8 mine situate in Fort Rixon.  The mine was being operated by one Blessing Ndiweni (“Ndiweni”) who had had a long standing dispute over the control of the mine with one Wilson Nyamiwa (“Nyamiwa”).

[3]	The dispute over the control of the mine culminated in a court order granted in favour of Nyamiwa. Consequent to the grant of that order, the messenger of court proceeded to the mine and evicted Ndiweni’s employees and security guards from the mine and, almost simultaneously, gave possession to the employees of Nyamiwa.  Ndiweni’s employees temporarily took shelter at a zinc structure which was located at the foot of the hill.  The mining operations were taking place at the summit of the hill.

[4]	Having been informed of these developments, Ndiweni enlisted the assistance of Manifest Security to provide additional security.  In the company of the appellant and other security guards from Manifest Security, Ndiweni had then driven from Bulawayo to the mine in the evening of 11 December 2014.  As there had been a downpour that day, the vehicle in which they were travelling could not make it to the mine. Consequently it was left, under guard, not very far from the mine whilst Ndiweni together with the appellant and other guards proceeded to the mine on foot.

[5]	On arrival at the mine, Manifest Security guards present handed over to Ndiweni a copy of the notice of eviction that had been served earlier that day by the messenger of court. It was not in dispute during the trial that, on arrival at the zinc structure situated downhill, some commotion eventuated during which Nyamiwa’s employees pelted the newcomers with stones.  It was also not in dispute that the appellant took a pistol from one of the Manifest Security guards, Cleverness Ngwenya, and that thereafter he fired a shot from the firearm.

[6]	Pandemonium broke out during which Nyamiwa’s employees scurried for cover.  The Manifest Security guards also fled from the scene whilst Ndiweni and the appellant went back to their vehicle and thereafter drove back to Bulawayo.

[7]	Early the following morning at about 6.00am, the deceased, who was one of Nyamiwa’s employees, was found barely alive and bleeding.  He died shortly thereafter. A post-mortem examination carried out on 15 December 2014 revealed that the bullet that had killed him had entered the body through the left deltoid area, had gone through the intercostal space, perforating the right upper lobe and thereafter had crossed the midline into the right upper lobe before exiting at the 4th intercostal space on the left armpit.  Death had resulted from haemopneumothorax.

[8]	Following investigations that ensued, the appellant was arrested and charged with the crime of murder.  During the trial proceedings that followed, various witnesses gave evidence for the prosecution whilst the appellant was the only witness in the defence case.  After considering the evidence led, the court a quo was of the view that the proved facts were such that the only reasonable inference to be drawn from them was that it was the appellant who had discharged the firearm that had killed the deceased.  The court consequently returned a verdict of guilty of murder with actual intent.  The court further found that the murder had been committed in circumstances of aggravation.  However it found that there were compelling factors in mitigation and ultimately sentenced the appellant to life imprisonment.

[9]	Dissatisfied, the appellant noted an appeal to this Court, impugning both the finding that it was him who had killed the deceased and the sentence of life imprisonment that was imposed as a consequence.

PROCEEDINGS BEFORE THIS COURT

[10]	In his notice of appeal, the appellant attacked the decision of the High Court finding him guilty of murder with actual intent on several grounds.  The upshot of his complaint was that there were a number of facts that had not been properly considered before the court a quo came to the conclusion that the only reasonable inference was that it was him who had discharged the bullet that had killed the deceased. There had been inefficient police investigations and the ballistic evidence had been inconclusive.  None of the witnesses called by the prosecution had testified to seeing the appellant shooting at the deceased and none had stated how the deceased had been shot.  The role played by Ndiweni had not been properly investigated to establish if, at the relevant time, he had also been in possession of a firearm.  There was evidence that the following morning, upon learning of the death of their colleague, Nyamiwa’s employees had proceeded downhill to confront the Manifest Security guards. In the ensuing commotion, Cleverness Ngwenya had also discharged his firearm at least five times.

[11]	In its heads of argument, the State submitted that the evidence that was led, considered cumulatively, established that it was the appellant who had shot at the deceased. The State however conceded that since this was a dark, rainy night, the possibility existed that the deceased succumbed to a stray bullet discharged as a result of a warning shot by the appellant. At best, therefore, the evidence suggested culpable homicide. The State, therefore, did not support the conviction for murder with actual intent and the sentence of life imprisonment that was consequently imposed.

[12] 	At the hearing of the appeal, appellant’s counsel sought to introduce a further ground of appeal.  This was that the court a quo had descended into the arena as a consequence of which the appellant had not received a fair trial. There had been excessive questioning of witnesses by the court, in addition to intermittent interjections by the court during cross examination and examination by the learned assessors. Examples of such questioning were given.  Further the court a quo had gone to the extent of suggesting to the State the witnesses to be called in order to bolster its case.  Having coerced the State into calling witnesses it had no intention of calling, the court had then, in its judgment, partly relied on the evidence of the two witnesses in order to place the appellant at the scene of the killing.  Further, notwithstanding a concession by the State that murder with actual intent could not be sustained on the evidence, the court had ignored the concession without reason and had proceeded to find the appellant guilty of murder with actual intent.

[13] 	In light of the serious nature of the offence that the appellant had been convicted of and the sentence of life imprisonment that had been imposed as a result, the court, with the consent of the State, permitted appellant’s counsel to raise this additional ground of appeal at the hearing. Whilst accepting that this was a new ground of appeal that had not previously been raised, the State conceded that, from a reading of the record of proceedings, it was not unwarranted.  The State accepted that there had been excessive questioning of witnesses by the court.  The State also accepted that it had been coerced by the court into calling two witnesses it had not intended calling.  The State had even conceded that, on the evidence before the court a quo, a conviction for murder with actual intent was not sustainable but the court a quo had ignored that concession and had proceeded to return a verdict of guilty of murder with actual intent.  The State accepted that the trial had not been entirely fair and submitted that the best course of action was for the conviction and sentence to be set aside and a fresh trial ordered at the discretion of the National Prosecuting Authority.

THE QUESTIONS POSED BY THE COURT A QUO DURING THE TRIAL

[14] 	Ndiweni was the first State witness.  His evidence in chief spans seven pages whilst cross-examination spans twelve pages.  An assessor, Mrs Dhlula, then asked nine (9) questions and, before completing her questioning of the witness, the trial judge took over before asking forty one (41) questions spanning eight pages.  Defence counsel then posed twelve (12) questions arising from the questioning by the trial judge.  Immediately thereafter, the trial judge posed another eighteen (18) questions to the witness before the witness was excused.

[15] 	The evidence of the next State witness, Cleverness Ngwenya, suffered much the same fate.  His evidence–in-chief spans ten pages, two of which were in response to questions by the trial court.  Cross-examination spans eighteen (18) pages.  An assessor, one Damba, then put thirteen (13) questions to the witness. Before she had completed her questioning, the trial judge took over. He then posed a total of sixty (60) questions spanning twelve pages of the record.

[16]	The next witness, Intellect Moyo, went through the same experience.  In addition to intermittent questions posed by the trial judge during his evidence-in-chief and cross-examination, the trial judge asked no less than fifty two (52) questions before excusing the witness.

[17]	It is what happened when the next State witness, Swikani Tshuma, was called that is of concern.  Before the witness could be sworn in, the following exchange took place between the prosecutor and the trial judge:-

“Judge. Q:  	Do we have anyone from Nyamiwa’s employees amongst your witnesses?

Prosecutor. A: 	The witnesses I had are Tinashe and Lovemore Bindira but I do not even call them up.

Judge. Q: 	Tinashe, do we have a summary of this witness’s evidence?

Prosecutor. A:	  Yes I have the summary on their evidence.

Judge. Q:	  No in your summarised state case?

Prosecutor. A:	I Have their evidence but upon interviewing, I thought otherwise.

Judge. Q:	  Tinashe Basera?

Prosecutor. A:	Yes Tinashe Basera and Lovemore Bindira but upon interviewing them I thought otherwise about calling them.

Judge. Q:	But look these are the people who know when this person died?

Prosecutor. A:   Yes my Lord but upon interviewing them I thought otherwise.

Judge. Q:	So can I take it that you don’t know when this person died? Who among your witnesses knows when this person died?

Prosecutor. A:	  My Lord upon my interviewing of witnesses…

Judge. Q:          	No I’m saying in this state summary who knows when the deceased died?

Prosecutor. A:  It was Tinashe and Lovemore but the evidence of the witnesses that had

to call I have called them and we are still given an impression that he

had died the previous day, he was shot the previous night.

Judge. Q:	No but that’s speculation I’m saying in the evidence that you are hoping to give to the court do we have anyone who can testify to the court as regards when this person died because you must be able to read through the evidence and see the tenure of that evidence.

Prosecutor. A:	  Yes

Judge. Q:	We are not just hear to listen to every jack and tom who comes to give evidence.  We need evidence that will assist us determine the issues that have caused us to sit in this Court.

Prosecutor. A:	Yes I appreciate that my Lord.  It’s such that the two witnesses who could give an exact time, when he died…

Judge. Q:	  Are you aware that time is of essence in this case.

Prosecutor. A:	  Yes

Judge. Q:	   Do you have evidence that will deal with that?

Prosecutor. A:    The pathologist will explain that.

Judge. Q:            The pathologist was not at the mine?

Prosecutor. A: 	Yes my Lord but everyone else including the witnesses that I did not call appear at the time when the deceased is dying or is dead.

Judge. Q:	But we are told there were 40-50 people at the mine. Are you saying that the police officers could not interview anyone?

Prosecutor. A:	Unfortunately the evidence I have presented is what I also have.

Judge. Q:	Then you have a problem you see.  You are presenting to us a limping case and you want to secure a conviction?

Prosecutor. A:	  My Lord I …

Judge. Q:	Because the reason why a prosecutor prosecutes is because you are hoping to secure a conviction.  If you doubt the evidence do not waste our time, withdraw the charges if you have no evidence.

Prosecutor. A:	The evidence that I had interviewed and that I have led and involved into lead right now was ….

Judge. Q:	So let’s listen to the evidence that you think will secure a conviction of the accused person in this matter.  Because that should be at the back your mind you are prosecuting this matter because you want to secure the accused person’s conviction.  The defence’s thrust is to secure the accused’s acquittal.  These are the two contrasting positions that you have but you must be able to read through your evidence and say what evidence am I going to present to the court.

Prosecutor. A:	Yes my Lord and the only reason why I did not call Tinashe Basera and Lovemore Bindira was, I had difficulties with their evidence.

Judge. Q:	No, it’s your discretion to call whoever you would want to come and give evidence but I am saying you must be aware that time is critical in this matter.  You must be able to tell us when this person died? Because there is no point in calling 10 witnesses who will not be able to assist you in dealing with and identifying the issues that have to be determined.

Prosecutor. A:	I appreciate that my Lord.” (Italics are for emphasis)

[18]	When Swikani Tshuma eventually gave evidence, just before being excused, the following exchange took place between the judge and the witness.

“Judge:	We were told there were about 40 – 50 employees from Nyamiwa who were baying for your blood, so you said, is that correct?

Witness:	 Yes

Judge:	So obviously it is within that group that we will get to know who was shot and at what time he was shot at?

A:		  Yes.”

[19]	Inspector Admore Mutizwa of the Police Ballistics was the next State witness to be called by the prosecution.  It was him who examined the cartridge that was recovered about three metres away from the body of the deceased. During his evidence in chief, the prosecutor posed twenty three (23) questions to the witness. During the same evidence-in-chief the trial judge posed twenty eight (28) questions intermittently. Thereafter defence counsel posed twenty one (21) questions in cross-examination during which the trial judge intermittently put a further seven (7) questions to the witness and a further six (6) questions during the time when one of the assessors was asking questions to clarify certain aspects of his evidence.

[20]	Under pressure from the court to call some of Nyamiwa’s employees, the State then called Tinashe Basera and Lovemore Bindira.  It was their evidence that it was, in fact, Ndiweni who came running up the hill threatening to kill “one of us” after which they heard the sound of gunfire. It was also Tinashe Basera’s evidence that he observed, the following morning, that Cleverness Ngwenya had two firearms which he proceeded to discharge when Nyamiwa’s employees descended downhill to find out who had fired a shot the previous night.  Defence counsel posed sixty five (65) questions to Tinashe Basera after which the trial judge then posed forty seven (47) questions.

[21]	The evidence of Detective Assistant Inspector Tirivamwe Matsika, the investigating officer, was also quite telling.  There were numerous intermittent interjections by the trial judge during his evidence-in-chief. There were no less than one hundred fifteen (115) intermittent interjections during cross-examination. After re-examination, the trial judge posed no less than seventy (70) further questions.

[22]	The appellant was the only witness in the defence case.  He was not spared either. After re-examination by his legal practitioner, the appellant was subjected by the court to no less than eighty (80) questions spanning over twenty eight (28) pages of the record.

[23] It is also apparent that in the judgment, the court, to a significant extent, relied on the evidence of Tinashe Basera and Lovemore Bindira, the two witnesses the State had decided not to call but had been directed to call by the court.  The court remarked at page 8 of its judgment.

“Tinashe and Lovemore, although they could not confirm seeing the accused in the company of Ndiweni, when the later moved up the hill where the mine was located, were conscious that Ndiweni was in the company of this gang.  Our position as we will later demonstrate in this judgement is that the accused must have been one of those who went closer to the deceased before the shooting.”

[24]	Lastly, during the address on the existence or otherwise of aggravating circumstances, the appellant’s legal practitioners submitted that the murder was not committed in circumstances of aggravation owing to the fact that the appellant and his guards had come under attack from Nyamiwa’s employees, who had started pelting them with stones.  There had therefore been a certain degree of provocation.  In response, the State accepted this submission.  It further submitted that this was a dark and stormy night and that the deceased was unlikely to have been a visible target.  The State accepted that there was an element of provocation and that this was an extenuating circumstance.  Notwithstanding the concession by the State, which in my view was well taken, the court went on to find that there had been a conspiracy between Ndiweni and the appellant to murder the deceased.  Clearly such a conclusion was not supported by the common cause facts which established that the shot had been fired on the spur of the moment after Nyamiwa’s employees had descended downhill pelting the appellant and other Manifest Security guards with stones.

COURT A QUO DESCENDED INTO THE ARENA

[25]	I have deliberately gone into some detail on the manner in which the trial judge frequently interjected during the giving of evidence by the various witnesses. Further, the trial judge had, after re-examination, posed more questions than those asked during cross-examination in some instances.  The manner in which the questions were posed, the frequency of such questions, the directive that the State calls certain of its witnesses it had decided not to call, cumulatively suggest that the court had descended into the arena and that, because of that fact, its objectivity had consequently been impaired.

[26] That a trial court should avoid giving the impression that it has ceased to be impartial has been stated in a number of decisions of this Court. Indeed, Mrs Takuva, for the State, conceded that the impression one gets from a reading of the record of the proceedings was that the court had itself joined the fray and that the appellant had been denied a fair trial.

[27] 	In a case involving facts somewhat similar to those of this case, GOWORA JA in Danis David Konson v The State CCZ 7/2015 had occasion to remark as follows:

“… The role of a judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done. In this exercise he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person but such questions must not be framed in such manner as to convey an impression that he is conducting a case on behalf of one of the parties … The judge should neither lead nor cross-examine a witness.”

[28] The learned judge then proceeded to consider the limits to which a judicial officer may question a witness or an accused person in a criminal trial. In this regard, she cited with approval remarks by Trollip AJA in S v Roll 1982 (1) SA 828 at 831 H – 832 H that:-

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed (see e.g. S v Sigwala 1967 (4) SA 566 (A) at 568F-H).

According to the above quoted dictum of CURLEWIS JA the judge must ensure that “justice is done”.  It is equally important, I think, that he should ensure that justice is seen to be done.  After all, that is a fundamental principle of our law and public policy.  He should therefore so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused ….  The judge should consequently refrain from questioning any witness or the accused in such a way that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression….

(2)	A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants.  As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) AT 189B, if he does indulge in such questioning-

“He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict.  Unconsciously he deprives himself of the advantage of calm and dispassionate observation.”

(See, too, the Jones case (supra) at 159C-E).  Or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself-

“The full advantage usually enjoyed by the trial judge who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.”

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may in consequence be seriously impaired …. And, if he is sitting with assessors, that may well adversely influence their deliberations and opinions on those issues.

A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility.  As LORD GREENE MR further observed in Yull’s case supra at 189B-C:

“It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.”

[29] The learned judge also cited with approval remarks by DUMBUTSHENA CJ in S v Mangezi 1985 (1) ZLR 272 (S) in which the learned Chief Justice stated:-

“It is not only when a judicial officer shows bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

[30] 	I have no doubt in my mind that the above remarks apply to the circumstances of this case.  When a trial judge asks as many as one hundred questions after re-examination of the witness, the impression is likely to be created that he is not simply trying to seek clarification on some aspects of the evidence given.  The impression is likely to be created that he is seeking a particular result in the matter.  Certainly, where a trial judge directs the State to call witnesses it does not intend to call and thereafter partly relies on the evidence of those witnesses in order to find an accused person guilty, his impartiality will almost invariably be called into question.  Such conduct would suggest a real likelihood of bias on the part of the trial judge.

[31]	The test for bias is settled under our law. All the authorities are agreed that the test is not a subjective one.  It is an objective test based on impressions of reasonable right-thinking people. In Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S), 297 A KORSAH JA had occasion to remark thus:-

“A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one.  One does not inquire into the mind of the person challenged to determine whether or not he was or would be actually biased.  Thus the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a probability of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.”

[32]	 The view that the presiding officer takes of his own ability to be impartial, or the fact that others may consider his standing in society to lend him an air of impartiality, has nothing to do with the determination of the issue of bias.  In the Leopard Rock Hotel case, supra, KORSAH JA went on to cite with approval pertinent remarks made by Lord Goff in R v Gough (1993) 2 ALL ER 724 HL, 740A that:

“Except in the rare case where actual bias is alleged, the court is not concerned to investigate whether or not bias has been established.  Whether it is a judge, a member of the jury, justices or their clerk who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual’s state of mind.  It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect.”

[33] 	Lastly, in  the more recent decision of this Court in TM Supermarkets (Private) Limited v Bisset Chimhini SC 41/19, this Court also had occasion to cite with approval the remarks of Lord Denning in Metropolitan Properties Co (F.G.C.) Ltd v Lannon & Others (1968) (3) ALL ER 304, 310 A-D that:-

“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself… The court looks at the impression which would be given to other people.  Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.  And if he does sit, his decision cannot stand … There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman as the case may be, would, or did, favour one side unfairly at the expense of the other.  The court will not inquire whether he did, in fact, favour one side unfairly.  Suffice it that reasonable people might think he did …”

DISPOSITION

[34]	The facts of this case suggest very strongly that the trial judge descended into the arena and that the way he conducted the trial created the impression that he had also joined the fray. In these circumstances, the determination made by the court a quo could not have been allowed to stand.

[35]	In light of the above conclusion, it became unnecessary to consider the submissions made by the parties on the verdict of guilty of murder with actual intent and the sentence of life imprisonment that was imposed as a result.

[36]	As has been observed earlier in this judgment, the two witnesses the prosecution was directed to call by the trial judge, namely Tinash Basera and Lovemore Bindira, gave evidence to the effect that it was Ndiweni who came running uphill, threatening to shoot “one of us.”  Immediately after uttering those words, a shot was heard.  That evidence suggested that it was Ndiweni who must have fired the shot that night and not the appellant.  This, perhaps, explains why the State was reluctant to call these two witnesses.  In view of this obvious discrepancy in the case for the prosecution, it seems to me that, rather than making an order directing that a trial de novo takes place before a different Judge of the High Court, the decision whether such a trial de novo should take place in the first instance should be left entirely to the discretion of the National Prosecuting Authority.

[37]	 For all the above reasons, the court consequently made the order captured in paragraph 1 of this judgment.

HLATSHWAYO JA	:		I agree

MAKONI JA		:		I agree

Thondhlanga & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners