8
HCC 24/25
HCCR 457/24
THE STATE
Versus
ANDREW MASANGA
And
BRIGHTON MAKICHI
And
TRYNOS RWANGA
HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 19, 20 June 24 September ,29 November 2024,12 ,21 March & 8 May 2025
Assessors: 1. Mr Kamanga
2. Mr Mutayiwa
Criminal Trial
G.T. Dhamusi, for the State
S. Musapatika, for the accused
MUZOFA J:
Introduction
In terms of s4 of the Protection of Wildlife (Indemnity) Act [Chapter 20:15] ‘the Act’ no indemnified person shall be arrested or prosecuted for an act or omission connected with the suppression of the unlawful hunting of wildlife without the authority of the Prosecutor General. (PG). In this case the accused who were duly attested members of the Zimbabwe Republic Police, were arrested and prosecuted on a charge of murder without such authority. Part of their defence is that at the time they allegedly shot and killed the deceased Kurt Rahman they were indemnified persons, therefore the PG’s authority to arrest and prosecute them was a prerequisite.
Section 12 of the National Prosecution Authority Act [Chapter 7:20] outlines the PG’s duties as follows,
‘12 Power to institute and conduct criminal proceedings
(1) The Prosecutor-General—-
(a) shall institute and conduct criminal proceedings on behalf of the State; and
(b) shall carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and
(c) may discontinue criminal proceedings; and
(d) shall issue certificates nolle prosequi in accordance with the Criminal Procedure and Evidence Act [Chapter 9:07], to persons intending to institute private prosecutions, where the Prosecutor-General chooses not to prosecute; and
(e) perform such other functions as are conferred or imposed upon him or her by or in terms of this Act or any other enactment.’
The PG has the general power to institute and conduct criminal proceedings. In addition to that, the PG is required to perform other functions imposed upon him or her by any other enactment. Thus, s4 of the Act requires that the PG issues authority to prosecute in every case where an indemnified person is suspected to have committed an offence before arrest and prosecution of such a person.
The power reposed on the PG to make a value judgment whether a person must be arrested is to sift and make sure only deserving cases are prosecuted. The value judgment involves balancing the competing interests of a person conducting his duties on one side and protection of the public, animals and property and the interests of justice on the other. The first legal issue for determination in this case is whether the accused were indemnified persons and such authority was required.
The accused persons appeared before this Court facing a murder charge as defined in terms of section 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that, on the 18th of November 2018 the three accused acting in common purpose unlawfully shot the deceased Kurt Rahman causing his death.
In denying the charge the accused raised indemnity in terms of s3 as read with section 4 of the Act. On the merits they raised self-defence.
Factual Background
Most of the facts are common cause. The three accused persons were police officers stationed at Darwendale Police Station at the time the offence was committed.
On the 18th of November 2018 they responded to a distress call from one Priscilla Mhizha a farmer who suspected that there were cattle rustlers in her paddock. They proceeded to Priscilla’s Farm at Plot 9, Bowden Farm, Darwendale to investigate.
Meanwhile the deceased together with his companions were hunting wild animals particularly reedbucks within the vicinity. They shot and killed two reedbucks. The deceased’s companions subsequently paid a fine for unlawful hunting.
After killing the reedbucks, they loaded the carcasses in their motor vehicle. On their way back they met up with the accused persons. A shoot out ensued which was described as Armageddon by one witness leading to the death of the deceased. What transpired during the shootout is disputed but that the deceased died as a result of shots by one or more of the accused is not disputed.
At the inception of trial, the defence took a point that the State failed to comply with s4 of the Act. More specifically that the prosecution was not authorized by the PG. The State was adamant that the accused did not fall within the auspices of s4 of the Act. It had evidence to establish the said facts. The matter proceeded to trial.
After the state case, the defence applied for discharge raising two issues that they were indemnified and that the State failed to establish a prima facie case. We dismissed the application in a separate judgment under HCC 90/24. The application was dismissed on two fronts that the legal issue on the authority requires the defence to be heard and that in respect of the evidence the State had established a case.
The State Case
To prove its case, the State produced by consent a number of exhibits, a ballistics report in respect of a .243 BRNO Rifle and three spent cartridges, a ballistic report in respect of a 7,62 X 51mm FN Rifle, the .762 Rifle and 6 live cartridges. The accused persons’ confirmed warned and cautioned statements and a sketch plan.
The evidence of ten witnesses was admitted in terms of s314 of the Criminal Procedure and Evidence Act. For convenience I set out the relevant evidence.
Priscilla Mhizha
She resides at Plot 9 Bowden Farm, Darwendale. On the 17th of November at night, she was advised of some gunshots heard in the direction of their cattle kraal. She alerted one Choga Andrew. Subsequently a report was made to the 1st accused.
Andrew Choga
He resides at Mutokwe Farm and a neighbor to Priscilla, after receiving a call from Priscilla Choga he went to investigate. His attention was drawn to some lights at Priscilla’s paddocks. The 1st accused was alerted. The police arrived, that is the three accused in the company of a 4th officer not before the court. He accompanied the police to the paddock where they had seen some lights.
At the farm shed they saw some tyre marks. They followed them to the paddocks where they lost track of the tyre marks. They returned to the farm sheds. While there, they heard gunshots coming from Mutokwe fields. After a while they saw a vehicle driving from Mutokwe fields towards the main road. The accused then rushed to the main road to intercept the motor vehicle. He remained in the car with Sergeant Magwere.
A few minutes later he heard some gun shots from the direction where the accused had gone. The 1st accused then called him to the scene. At the scene he saw a “colored man” bleeding, and a third man who was shot. The 1st accused asked him to take them to hospital. He obliged. Thereafter he proceeded to his place of residence.
Doctor Tavengwa, Doctor Muriwa, James Mukumba and Doctor Aisa Serrano
They are medical personnel who certified the deceased dead, provided safe custody of the deceased’s body and conducted the post mortem. Death was due to respiratory distress, leg fracture, multiple abdominal injuries and gunshot injuries.
Lonious Shumba
He was the initial investigating officer. He recorded statements from accused persons. When he was transferred to Kariba, he left everything to Farai Muzonda who finalised the investigations.
Shelton Mahachi
A police officer based at CID Norton by then. He witnessed the recording of the accused’s statements.
Four witnesses gave oral evidence as follows:
Curtis Bradley Rahman
The deceased was his father. On the 17th of November 2018 he went hunting with his father the deceased, a friend Wirah Magatsi ‘Magatsi’, Philip the driver and Tafadzwa a friend. They commenced their mission at Magatsi’s brother’s farm in Darwendale. They drove around the brother’s farm and did not spot any animal. He opined that it was a bit early.
They proceeded to Magatsi’s farm. They switched on their spot lights. He spotted two reedbucks. The deceased, himself and Tafadzwa were at the back of the truck. The deceased shot at the animals first and missed. He took the gun and fired a shot and one animal dropped. He fired a second time and killed a second animal. They loaded the carcasses into their motor vehicle and returned the firearm at the back of the front seat. They drove back to Mugatsi’s homestead.
As they turned off the main road into Magatsi’s farm gate he heard a gunshot. He realized the deceased was hit. The car tyres were shot. When the car stopped four shots were fired at the deceased one grazing his head, one hit him on the abdomen and two hit his legs. He refused to surrender his rifle. They were subsequently taken to hospital.
Under cross examination he conceded that they were hunting unlawfully. They were ordered to pay a fine and compensate Parks and Wildlife.
The witness was very emotional, he shed tears as he gave evidence. He believed the matter was not properly investigated, they did not make indications as witnesses. According to him, the investigations were compromised and biased against the deceased since the accused persons were police officers.
Wirah Magatsi
He certainly rues the day he invited his longtime friend to go hunting. He said at his farm he had problems with wild animals. To address the problems, he invited his friend, the deceased to hunt at the farm.
Most of his evidence was similar to Curtis’s evidence except for some details on how the shooting took place.
Of note he said the other occupants were shot after the motor vehicle had stopped. He did not perceive what transpired at the back of the truck since he was in front. His cross examination revealed that he embellished his evidence to minimize their unlawful conduct while shifting all the blame to the accused persons.
Phillip Mamuka
He was the driver of the truck that took the hunters to the farm. He was with Magatsi in front. After the hunting and on return to Magatsi’s homestead the truck was hit by a bullet on the right front wheel. The car stopped. He disembarked and went to the back. He saw that the deceased was badly injured, so was Tafadzwa and Curtis. He did not hear any instruction to stop. He denied that the accused acted in self defence since there was no firearm at the back. The firearm was at the back of the front seat. The injured were taken to hospital. He denied that the accused were shot first since it was dark. He confirmed that they were subsequently charged for unlawful hunting.
Under cross examination he said two of the accused persons had rifles and one had a pistol. Personally, he was hired and he did not know they had committed an offence. It only dawned on him that an offence was committed when they were arrested at the police station. He confirmed that one of the accused ran away from the scene after he saw the animals in the truck.
He conceded that the accused persons as police officers, acting in the course of their duties are entitled to arrest suspects. When he was probed further whether there was a reasonable suspicion that an offence had been committed, he conceded that there was a reasonable suspicion but it is how the arrest was effected that he impugned. It was criminal and went beyond ordinary discharge of duty.
Farai Muzondo
He was the investigation officer. After receiving the docket for investigations, he caused deceased’s body to be examined and a post mortem report was completed. He sent the two rifles for forensic examination. He noticed four bullet wounds on the deceased.
From the documentation at the police station, he noted that the accused persons booked out two rifles reacting to a report of suspected cattle rustlers. Surprisingly he could not remember how many cartridges were in each rifle and nothing was recovered at the scene of crime. He recovered two spent cartridges from the deceased’s motor vehicle.
The investigations were poorly conducted no wonder why the deceased’s son Curtis had so many questions. So many things were left hanging. For instance, although the he told the court that two firearms were taken from the station, he could not tell how many bullets were taken to the scene of crime and how many were returned to the station. One expects that such security weapons are always accounted for to avoid abuse. There must be a paper trail at the station to show what was taken and what was returned. Every bullet has to be accounted for. Thus, it remained unclear how many shots were fired by the accused. It is also incomprehensible that the following day he could not recover any cartridges from the scene of crime whereas it was abundantly clear that the accused fired several times at the truck.
We believe more could have happened in this case than what was disclosed by the witness. We could not fully appreciate why the witness said he recorded statements from the accused yet one Sergeant Shumba recorded statements in 2020. Could there be some statements somewhere? Similarly, why were statements recorded in 2020 when the offence was committed in 2018?.
Under cross examination the witness disclosed that the charge was culpable homicide. It was not explained at what stage the charge was revised to murder.
What is central from his evidence is that the accused left the police station responding to cattle rustlers but it turned out to be poachers. It is from these circumstances that the legal question emanates. Is an authority from the Prosecutor General a condition precedent to arrest and prosecution? After failing to secure the attendance of the then Officer in Charge Darwendale and the doctor the State then closed its case. An application for discharge was made and dismissed as already stated.
The Defence Case
Each accused adopted his defence outline and gave oral evidence before cross examination. They intended to call a witness but they could not secure his attendance.
Andrew Masanga
He was the acting officer in charge by then. He explained how he received a call from Priscilla and put together a reaction team. It comprised of the accused and Sgt Magwere who was not before the Court. They took firearms with them.
Before leaving the station, the team strategized and concluded that the chances were that the suspects were poachers rather than cattle rustlers. From his experience cattle rustlers do not use torches and firearms, these are usually used by poachers.
At Priscilla’s place they went to the paddock and they saw some tyre marks. They followed the lead but nothing materialized. When they were about to leave, they heard gunshots close to the CSC Farm. The Farm is close to game park. He said in that jurisdiction firearms are usually used for poaching.
After about 30 minutes they saw some vehicle lights. They decided to follow it but their vehicle had challenges. They walked to the main road leaving Dominic Choga and Magwere fixing the motor vehicle.
He was in charge of the team. At the road, he instructed the 3rd accused in uniform to stand in the road. He had a firearm. He positioned the 2nd accused in the bush to ambush. He stood by the side of the road.
The motor vehicle then approached them. It was on high speed. The 3rd accused signaled the driver to stop but the motor vehicle did not reduce speed. When the vehicle was about 20 meters from 3rd accused, he instructed the 3rd accused to fire meanwhile he was also calling out the driver to stop to no avail. It was unclear from his evidence if warning shots were fired. There was an exchange of fire. He and 3rd accused had to scuttle into the bush for safety.
When the motor vehicle stopped, they approached it. He saw Curtis placing his firearm into a pouch. He also noticed that two people at the back of the truck were injured. He called Magwere to take the injured to hospital. In the truck were two dead animals.
According to him the car stopped because one tyre was deflated. He said the accused simply executed their duties devoid of any malicious intention. He regretted being a police officer now that he was arrested for executing his duties. He expressed his personal opinion about the charges that such charges diminish police confidence in executing their duties while manifestly propping up criminal conduct. He also said the police were entitled to defend themselves if attacked. His emphasis was that the police must be given wide discretion in the exercise of their duties to effectively discharge their mandate.
Brighton Makichi
His evidence was largely similar to the 1st accused’s evidence. He was roped into the investigating team when he had completed his duties for the day. Before the team proceeded to the scene of crime they discussed and agreed that the suspects were likely to be poachers.
He was armed with an FN rifle. At the scene of crime, he lay in ambush on the instruction of the 1st accused. He fired two shots when instructed by 1st accused. The first one was a warning shot then he fired a second one to deflate the tyres. The 3rd accused fired the third shot. The deceased and his colleagues fired many shots at them. However, he could not explain why the empty cartridges could not be located.
Trynos Rwanga
He was a constable stationed at Darwendale police at the time. His evidence was brief since he also adopted the 1st and 2nd accused’s defence outline.
He was armed and was instructed to stand in the road. When the motor vehicle approached and would not stop, he jumped off the road. When it passed, he shot two warning shots. Thereafter he heard gunshots from the vehicle. He returned fire, he shot to deflate the tyres. He said it was dark. He fired the first shot.
After the 3rd accused’s evidence, the defence closed its case after falling to secure the witness.
Closing Submissions
Both the State and defence requested to file written submissions. I granted the request in view of the long period the case has taken. Despite undertaking to file the closing submissions, the defence counsel did not file them. A reminder was sent to him he committed to file but still, he did not honor his undertaking until the last minute. Such conduct is not expected from legal practitioners. The closing submissions were filed a month later.
The State’s Submissions
The State ably identified the main issues for determination as whether the Prosecutor General’s authority to arrest and prosecute the accused is necessary, whether the accused are indemnified and lastly whether the State proved its case beyond a reasonable doubt.
The State opined that the Prosecutor General’s authority was unnecessary in these circumstances. When the accused committed the offence, they had reacted to a suspected stock theft case. It was fortuitous that in the deceased’s motor vehicle two dead reedbucks were recovered. As such they were not on duty to suppress the unlawful hunting of animals.
On the merits we were urged to find the state witnesses credible and reject the accused persons’ defence which was inundated with internal contradictions. Further that the accused be found guilty of culpable homicide, they lacked the requisite intention to kill as envisaged in S v Mugwanda SC 19/02.
Defence Submissions
Detailed submissions were eventually submitted. The defence traversed in detail the evidence led before the Court with a view to discredit the state witnesses’ evidence. It was submitted that the accused had no onus to prove their case. On the day they acted in self defence after the deceased and his companion shot at them. Further to that, that neither murder nor culpable homicide is sustainable since the state was not authorized to prosecute by the PG in terms of s3 and 4 of the Act.
Factual and Legal Analysis
Whether or not the Prosecutor General’s authority to prosecute was necessary before prosecution of accused persons?
The law restricts the arrest and prosecution of indemnified persons under the Act. Every police officer whose conduct or omission is associated with the suppression of unlawful hunting of wildlife is immune from prosecution unless the Prosecutor General (PG) authorises such arrest and prosecution1.
Invariably, for the court to determine whether the PG’s authority was required in this case we must make a finding first whether the accused’s conduct was in the course of suppressing the unlawful hunting of wildlife.
The evidence before the Court admits of no doubt that the accused’s conduct fell squarely under the suppression of unlawful hunting of wildlife. In S v Mupo HMA 12-16 the Court was dealing with a case of a game ranger who shot and killed an illegal fisher man, the court noted
“…..for the purposes of or in connection with the suppression of the unlawful hunting of wild life” include anything linked to, related to or connected with attempts to suppress the unlawful hunting of wild life. Both the Parks Act and the Indemnity Act define the term “wild life”, as vertebrate and invertebrate, which are indigenous to Zimbabwe and the eggs or young thereof other than fish. In the Indemnity Act, “wild life” means all kinds of vertebrate animals and the young thereof, other than domestic animals.’
In this case, the three state witnesses were clear on their mission on the fateful night. They went to hunt some reedbucks. Magatsi said these animals were giving him problems he invited his friend to do some hunting at the same time dealing with his problem. None of them had the requisite authority to hunt in the farm. Phillip said he only satisfied himself that the firearm was registered. The witnesses said they did not know that they were committing an offence. It is common cause that after the unfortunate incident they were formally charged for unlawful hunting. They paid fines.
The state’s submission that the accused set out to investigate a suspected stock theft they cannot claim they were on duty to suppress unlawful hunting is not persuasive. It maybe factually correct that the accused received a suspected stock theft report. However, when they set out the accused indicated that they opined that they could be dealing with either cattle rustlers or poachers. They actually explained the basis of their belief, that from experience poachers use torches and are armed. This piece of evidence was not controverted.
It is not why they left the Police station that determines this issue. What determines the issue is whether at the time they shot the deceased they were acting in furtherance of suppressing unlawful hunting. The undisputed evidence is that when the accused arrived at Priscilla’s paddock and did some surveillance, they noticed some tyre marks which they pursed to a dead end. It is at that point or immediately thereafter that they heard sounds of gunshots from the CSC Farm which is close to a game park. Their opinion, again drawn from experience was that they were now dealing with some poachers. The first accused said the poachers usually pursue animals from the Game Park. Thus, when they heard the gun shots and saw a motor vehicle, they braced themselves to deal with the poachers. The Court can not engage in a hair-splitting exercise and reason that the accused were dealing with stock theft therefore unlawful hunting is a separate issue.
The accused persons were and some are still members of the Police Service which is established in terms of the Constitution of Zimbabwe. Part of the Police service duties include detecting, investigating and preventing crime2 as well as protecting and securing the lives and property and of the people3 .A police officer is required to perform his or her duty anytime he / she entertains a reasonable suspicion that an offence has been committed. The Court must not hamstrung the police in the course of their duties. They must conduct their duties subject to the applicable laws to curtail abuse of power.
The State’s interpretation of the facts is a narrow, straitjacketed armchair approach which has serious implications on policing duties. A wider approach is desirable in this case. To accept the State’s submission is to say if the police react to a theft charge and along the way they see a man raping a woman they should just turn a blind eye and focus on the theft only. That would be policing at its worst. An offence is an offence regardless of the time the police perceive it.
At the time that the offence was committed the deceased and his companions had unlawfully killed two reed bucks. This is wildlife. It matters not that the reedbucks were from Magatsi’s farm or the game park it remains wildlife and protected by the laws of the country. In essence they were engaging in unlawful hunting. It is our finding that at the time that the deceased was shot the accused were in the course of supressing the unlawful hunting of wildlife.
We turn to the real issue whether the PG’s authority was a condition precedent to the arrest and subsequent prosecution of the accused. We have no doubt that it was. In
Maxwell Bowa vs The State SC-47-14 @ p14, the Court had this to say on indemnity,
“In the present matter the killing of the deceased, though unfortunate, was the result of a bona fide attempt to apprehend persons who were believed to be armed and involved in poaching activities. In my view the court a quo should have found that such indemnity attached to the appellant and consequently a verdict of not guilty entered.”
Although the court in that case was addressing the real defence of indemnity and not the authority, the sentiments apply in this case to the extent that, the accused’s conduct was an attempt to apprehend persons believed to be poachers. This is what the accused said and it was not controverted. True to their suspicion the deceased and his companions were on an illegal hunting mission.
There are specific offences where the Prosecutor General is required to explicitly authorise the arrest and charging of the accused for instance s 70 (3) of the Criminal Law Codification and Reform Act (Chapter 9:23). That authority is over and above the general powers given to the PG. The authority must be specifically issued in explicit cases and must be produced in court before the prosecution can proceed. In the absence of such authority the arrest and the prosecution is doomed.
In this case, the PG was required to consider the case and authorise the arrest and prosecution of the accused pursuant to s 4 of the Act which provides,
‘4. Restriction on arrests and institution of criminal proceedings
Except with the authority of the Prosecutor-General—
(a) no indemnified person shall be arrested; and
(b) no criminal proceedings shall be instituted against an indemnified person;
in consequence of his having advised, commanded, ordered, directed or done or omitted to do any act or thing for the purposes of or in connection with the suppression of the unlawful hunting of wild life.’
The wording of the said section shows that by operation of law the PG’s authority is a sine qua non before prosecution. Without doubt the state fell into error, the PG’s authority was a condition precedent to the arrest and prosecution of the accused. Technically the prosecution of the accused was done against the law. The prosecution is a nullity. I agree with the defence in its sentiments drawn from the case of Schierhaut v Minister of Justice 1926 AD 99, per INNES CJ where the court said;
“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no effect. The rule is thus stated: Ea quae lege fie prohibentux, si fuerint facta, non solum inutilia, sed pronfectis ha beantur licet legislator fiery prohibuent tantum, nec speccialiter dixerit inutile esse debere quad factum est. Code 1.14.5. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done and that whether the lawgiver has expressly so decreed or not: the mere prohibition operates to nullify the act….and the disregard of peremptory provisions in a statute is fatal to the validity of the proceedings affected….”See also Munyikwa v Mapenzauswa & Anor SC 91/05.”
That sums up this case.
It becomes unnecessary to even engage on the legal issues whether the accused acted in good faith or not. This is because the prosecution itself and the arrest in the first place was not authorised. If a thing is not authorised then there is nothing to consider. Had the State equipped itself with the authority, this Court’s mandate was to decide whether the accused are indemnified under s3 of the Act and as expounded in the Bowa case (supra) and whether they acted in self-defence.
The State case falls on that one leg, there was no authority to prosecute the accused. In view of our finding, it means the matter is decided on the technicality. Since the accused had pleaded, they are entitled to a verdict.
Disposition
The state failed to pass the first hurdle that the accused acted in the course of suppressing unlawful hunting. When they shot the deceased, they were in the course of duty. They were therefore indemnified persons in terms of s2 of the Act. Consequently, in terms of s4 of the Act their arrest and subsequent prosecution must have been specifically authorised by the PG. In the absence of such authority the prosecution is incompetent.
Accordingly, the accused are found not guilty and acquitted.
National Prosecuting Authority, legal practitioners for the state
Danziger & Partners, accused’s legal practitioners.
1 S 4 & s2 of the Protection of Wildlife (Indemnity) Act (chapter 20:15)
2 S219 (1) (a) of the Constitution of Zimbabwe
3 S 219 (1) (c) of the Constitution of Zimbabwe