Judgment No. HB 61/2003                                                                                         Case No. HCA 117-119/2001

                                                                        CRB MAD 293-5/2000

 

BUSANI NCUBE

 

And

 

METHULI SIBANDA

 

And

 

JOHN DUNGENI

 

Versus

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA AND NDOU JJ

BULAWAYO2 SEPTEMBER 2002 AND 22 MAY 2003

 

T Ndlovufor the appellants

Mrs M Chedafor the respondent

 

Criminal Appeal

 

            NDOU J:        The appellants were charged with assault with intent to do

 

grievous bodily harm.  Notwithstanding their protestations they were convicted and

 

each sentenced to 9 months imprisonment with 3 months suspended on the usual

 

condition of good behaviour.  They appeal against both conviction and sentence.  We

 

upheld the appeal and quashed the conviction and set aside sentences.  Our reasons

 

for doing so are covered in this judgment.

 

            The facts of the matter are the following.  The three appellants are members of

 

the Zimbabwe Republic Police stationed at Madlambuzi.   On 12 September 2000 at

 

about 2300 hours the appellants and another police detail arrived at the complainant’s

 

residence in Dombodema.  The appellants went to arrest the complainant after

 

receiving a report against him by one Godfrey Tshuma and other villagers that he had

 

been threatening to kill the former and had thrown stones at his home.

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            It is common cause that the appellants and the other policeman approached the

 

complainant’s homestead under the impression, rightly or wrongly, that he was a

 

violent person.  They had previously arrested him for violence.  Upon arrival at the

 

complainant’s home hey knocked at his bedroom hut and announced their presence. 

 

It is common cause that the complainant delayed in coming out.  What transpired after

 

when he eventually came out is hotly disputed.  What seems to be beyond dispute is

 

that a scuffle ensued.

 

            The prosecution case, on the one hand was that as the complainant was

 

opening the door the appellants flung the door open, grabbed and pulled out the

 

complainant.  The appellant’s case on the other hand is that when the complainant

 

came out he went straight to the first appellant and grabbed him and they both fell to

 

the ground.  The two other appellants came to rescue their colleague and subdued the

 

complainant and handcuffed him.  Their case is that whatever force or assault

 

perpetrated on the complainant the objective was to effect the arrest of the

 

complainant and to overcome his apparent resistance.  The trial court found in favour

 

of the prosecution version.  This finding is resulted in this appeal.  In support of its

 

case the prosecution called the complainant and his wife.  The main thrust of their

 

testimony is that when the appellants knocked at their bedroom, they asked who it

 

was.  The appellants forced the door to open and started assaulting the complainant. 

 

The wife says the complainant was quiet throughout the assault.

 

            From the record, it seems that most issues are common cause.  It is beyond

 

dispute that the appellants, in the course of their duties as policeman, received a report

 

of a criminal offence levelled against the complainant by one Godfrey Tshuma and

 

other villagers.  In essence it was reported that the complainant was accusing Tshuma

 

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of being a Movement for Democratic Change supporter and was threatening to kill

 

him and was also throwing stones at his home.  The appellants and the other police

 

officers went to the complainant’s home believing he was a violent person.  They had

 

previously arrested him for acts of violence and the objective was to effective an

 

arrest on him.  They knocked at his door and he came out.  From this stage onwards

 

there seems to be conflicting evidence on what transpired.  It is however beyond

 

dispute that the first appellant assaulted the complainant.  The only issue is whether

 

he did so in order to apply reasonable force to effect arrest.  As far as the rest of the

 

appellants what is at issue is whether they assaulted the complainant as well or they

 

merely assisted their colleague to subdue the complainant.  The main thrust of the

 

issue is whether the complainant was resisting lawful arrest.  Resisting arrest is itself

 

an offence – see section 42(1) and 101 (1) (a) of the Criminal Procedure and Evidence

 

Act [Chapter 9:07] and R v Putter & Ano 1962 R & N 73 (FS).  It is trite that a person

 

whose arrest is attempted resists the attempt and cannot be arrested without the use of

 

force, the person attempting to carry out the arrest has the right to use such force as it

 

reasonably justifiable in the circumstances to aver any resistance put up to the arrest –

 

see Criminal Procedure of Zimbabwe by John Reid Rowland at 5-17 (g) and also R v

 

Howard1966 RLR 318 A; R v Ncube 1962 R & N 16 and R v Karambe and Ano

 

1958 R & N 469.  The court must place itself in the shoes of the accused when

 

looking into whether or not the force applied to effect the arrest was reasonable.  In

 

this case the violent character of the complainant was known to the appellants and the

 

other police officers.  The offence for which the intended to effect the arrest was

 

threats of death directed at Tshuma (his neighbour) and throwing stones at his

 

homestead.  The complainant, according to evidence, was an abuser of dagga.  His

 

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wife confirmed this in her testimony.  The state concedes that the “Police went to the

 

complainant’s home believing he was a violent person.”  It is common cause that the

 

police had previously arrested the complainant for violence.  The evidence establishes

 

that when the appellants knocked at the door of the complainant’s bedroom he

 

emerged therefrom naked.  The evidence of the appellants is that the complainant

 

rushed out of his bedroom and immediately attacked the first appellant.  It is common

 

cause that before the complainant emerged naked the appellants had knocked on his

 

bedroom door and announced that they were police officers.  This occurred at night

 

with moonlight being the only source of lighting.  The state alleged that the

 

complainant lost two teeth as a result of the assault.  The judgment of the court a quo

 

is scant and at times very difficult to follow.  The trial court did not make findings of

 

credibility in respect of the various witnesses who testified except the complainant

 

and to some extent the appellants.  There was no finding of credibility in respect of

 

witnesses Godfrey Tshuma, Bhekinkosi Mabhena and Doctor Ogundipe.  The

 

testimony of these witnesses impact on the credibility of the complainant.  Mabhena’s

 

account is as follows:-

 

“I remained at a spot about 4-5 metres away.  Ncube (1^st appellant) knocked there was no answer.  Later  female voice was heard answering.  Some match was lit and put out.  Complainant came out holding his pair of trousers and was naked.  Complainant came out hurrying and they fell down together.  Ncube then assaulted accused one (complainant) with baton stick.  Sibanda (2^nd appellant) and Dungeni then joined assisting in arresting complainant.  After they had arrested complainant I then gave them his clothes to wear …   First accused struck the complainant when they were on the ground.  Accused 2 and 3 did not assault complainant.  I did not notice any injuries on complainant’s body.  (my emphasis)

 

Under cross examination by the public prosecutor this witness further stated –

 

            “A -     Ncube (1^st appellant) was trying to free himself from complainant …

 

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Q -       But you did not say complainant grabbed accused so what was he freeing himself from?

            A -       I said complainant was hurrying and grabbed him.”

           

Godfrey Tshuma said –

 

“Police knocked.  We saw a person coming out and grabbed police officer … after grabbing each other they fell each other to the ground.   I noticed police office hitting (complainant) with baton stick.  There were 4 police officers only complainant and one officer grabbed each other.”

 

            The testimony of these two witnesses is consistent with the appellants’

 

defence yet the court a quo made no findings thereon.  Are we to discern from the

 

judgment that the trial court made adverse findings on their credibility?  Further, the

 

complainant was examined by Dr Ogundipe.  He testified –

 

“I found multiple bruises on the back and thighs.  He had loose teeth and fractured ones.  Wounds were fresh.  He was still bleeding from the mouth.”

 

Ex facie, this testimony supports the complainant’s story.  A closer scrutiny, however, will show that that is not the case.  The alleged assault occurred on night of 12 September 2000.  Dr Ogundipe only examined the complainant on 21 September 2000.  Could he still be bleedings and having fresh wounds after so many days?  There is a doubt that wounds that Doctor Ogundipe saw have anything to do with the incident of 12 September 2000.  The trial court did not do the basics in arriving at its decision.  It did not follow steps that a trial court should take and techniques it should follow in reaching a decision.  I think the word of the learned author John Reid Rowland in his work – Criminal Procedure in Zimbabwe are instructive in this regard.  At 24-10 the learned author remarked –

 

“Essentially, the judgment should contain a brief summary of the facts found proved and the trial court’s appraisal of the credibility of each witness, stating what evidence was accepted or rejected and giving reasons for its decision.  It is of no help simply to outline the evidence of all the witnesses and made bald comments such as –

 

“The state witnesses gave their evidence well and the appellant gave his badly.  Accordingly I found the accused guilty.” (Magistrates’ Handbook pp 81-82)

 

Where there are questions of law, the application of the law to the facts found proved should then be dealt with.”

 

            What is required is a complete and meaningful judgment touching on all

 

material evidence led during the trial.  Magistrates should always bear in mind that in

 

criminal trials the giving of judgment or reasons for conviction is very important part

 

of the trial to avoid creating the impression that the decision is arbitrary or capricious. 

 

For a magistrate not to record what he considered amounts to a gross irregularity,

 

which will usually result in a conviction being set aside on appeal or review, although

 

the conviction may still be upheld if the evidence on record supports it – see S v

 

Makombe HH-120-86 and S v Rusero HH 151-86.  In casu, the court a quo failed to

 

give a brief summary of the facts it found proved and its appraisal of the credibility of

 

witnesses Tshuma, Mabhena and Dr Ogundipe.  The testimony of these witnesses is

 

material.  Their evidence is consistent with appellants’ defence and contradict the

 

complainant’s version in several material respects.  This failure by the trial court

 

amount to a gross irregularity.  The other evidence on record does not support the

 

prosecution case.  On the contrary, the bulk of the evidence should have created a

 

doubt in the mind of the trial magistrate and the appellants should have been given the

 

benefit thereof.

 

            The appellants’ defence raised a question of law i.e. whether the appellants

 

were justified in assaulting the complainant in the face of evidence that he was

 

resisting arrest.  There is no application of the provisions of section 42(1) of the code

 

to the facts of the case.  It should be borne in mind that it is the state that should prove

 

its case beyond a reasonable doubt and not the other way. 

 

In light of the foregoing, it is our view that the conviction is not safe.  We,

 

therefore, upheld the appeal on 2 September 2002, and quashed the convictions and

 

set aside the sentences imposed.

 

 

 

 

 

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                                    Cheda J ……………………… I agree

 

 

 

 

 

Cheda & Partnersappellants’ legal practitioners

Attorney-General’s Officerespondent’s legal practitioners