CHRIST CITADEL INTERNATIONAL CHURCH
(represented by LINDANI NDABA)
HOSEA MUJAYA N.O
HIGH COURT OF ZIMBABWE
HARARE, 5 November 2021 and 26 October 2022
Opposed Application- Review
Mr S Banda, for the applicant
Ms F Kachidza, for the second respondent
This is an application for the review of the decision of the first respondent delivered on 10 September 2019 under CRB No. 294-96/19, in terms of which the applicant’s application for discharge at the close of the State case was dismissed. The facts are that on the 24 April 2019, the applicant (as 1st accused, Norton Town Council as 2nd accused and Israel Isheunesu as 3rd accused) appeared before the first respondent answering to the charge of culpable homicide as defined in section 49(b) of the Criminal Law (Codification and Reform) Act (the Code).
Allegations were that one Lovejoy Mwandiambira lost his life through electrocution after coming into contact with a live power line at the applicant’s premises that were under construction. Investigations pointed out to negligence by the applicant in that it caused a church structure to be constructed under a live power line and did not take measures to ensure the safety of members of the public. The applicant was charged with culpable homicide and the trial commenced before the first respondent. At the close of the State case, the applicant applied for discharge, but the application was dismissed. It is the dismissal of that application that gave birth to the present application.
The Applicant’s Case
The applicant contends that no reasonable evidence was placed before the first respondent to warrant the placement of the applicant on its defence. The applicant had done all it could to protect its members from danger. The property is surrounded by a durawall and a gate. The applicant also employs a caretaker, whose duty is to ensure that non-members of the church do not gain access into the church premises. Announcements were also made during church services to ensure that no one goes to the top deck where the power lines are located. The deceased being a non-member of the church did not know all of this and trespassed into the church premises in the company of his brother who is a member of the church.
The applicant further contends that there was no negligence on its part, since it took all steps necessary to ensure the safety of its members. The death of the deceased was just an unfortunate and unforeseeable event. Construction had ceased and the applicant had no duty to act towards the deceased who was not one of its congregants. It was therefore unreasonable for the first respondent to dismiss the applicant’s application for discharge at the close of State case considering all of the above factors which all but exonerated the applicant from any perceived negligent conduct.
The Second Respondent’s Case
The respondent contends that the application is without merit and ought to be dismissed to allow the applicant to have its day in court. The applicant had to be given an opportunity to explain its conduct, in response to the criminal charges. According to the second respondent, the applicant’s conduct directly contributed to the death of the deceased. It constructed a structure directly under an 11kv power line.
It was reasonably foreseeable that as the construction progressed skywards, the structure would come into contact with the power line thereby creating a dangerous situation. Electrocution of any person coming into contact with the live power line was reasonably foreseeable. The fact that the deceased was a non-member of the applicant was not a plausible defence. The applicant owed a duty of care to members of the public and not just its members.
The decision of the court a quo on the application for discharge
In his ruling, the first respondent dismissed the applicant’s contention that the deceased had no business being at the church premises since he was a non-member of the church. The court was of the view that a church was a voluntary organisation which was not exclusive to its members only as it were. Anyone could visit the church despite not being members of that church. Besides, even assuming that membership was the prime consideration for one to get access into the church premises that still did not take away the responsibility to properly secure the premises to avert harm even to members of the church. The applicant could not create a dangerous situation and then wave the membership tag as a defence to the said criminal charges.
The court concluded that the applicant had a case to answer. It also concluded that the second accused person had explanations to make as regards its involvement in the project. It had some oversight over the piece of land, since it was under its jurisdiction. The court however found the third accused not guilty and acquitted him. The court reasoned that the third accused ought to have brought in as a State witness. He had the requisite qualifications to supervise the project, but there was no evidence to suggest that he played any role that made him criminally culpable.
The Submissions and Analysis
Mr Banda appearing for the applicant submitted that the issue for determination had been narrowed down to whether the court aquo acted irrationally in dismissing the application for discharge, when the evidence led by the second respondent did not merit any answer from the applicant. According to him, the court acted irrationally for the following reasons: the incident occurred when the applicant had stopped construction at the site in October 2014. It was at that stage that the applicant had applied to the Zimbabwe Electricity Transmission and Distribution Company (ZETDC), Norton Depot, for the relocation of the 11KV line which was passing directly above the construction site. The applicant approached ZETDC in October 2014, well before the incident occurred in December 2014.
Mr Banda argued that the applicant had done everything that a reasonable person in the same circumstances would have done. The deceased only accessed the premises because he was in the company of the applicant’s congregant who had gone to charge his cellular phone. Further, a State witness from ZETDC, a Mr Murambiwa admitted under cross examination that ZETDC and the Ministry of Local Government were culpable for the deceased’s death, because an inspection carried out at the setting out stage should have picked the positioning of the ZETDC line, relative to the construction site. Counsel also averred that the deceased was on a frolic of his own. He should not have been at the construction site in the first place.
In her response, Ms Kachidza submitted that superior courts are generally slow to interfere with unterminated proceedings of the lower courts. The issue was whether there was any gross irregularity in the ruling by the first respondent on the application for discharge at the close of the State case. The mere fact that the application for discharge was dismissed did not amount to a gross irregularity. The lower court established that there was a prima facie case that justified the opening of the defence case. Two defence witnesses had already testified.
Ms Kachidza further submitted that before the applicant commenced construction at the site, it was aware that there was an 11KV electricity line that passed through the construction site. It proceeded with construction regardless of warnings from ZETDC to halt construction. Had a decision been made to halt construction much earlier, the structure would not have reached that stage which exposed members of the public to danger. The KV line was about 1.2 to 1.5 metres from the structure, thus exposing the public to danger. It was therefore reasonably foreseeable that harm would occur to anyone under the circumstances. The mere fact that the deceased is alleged to have trespassed into the premises was not an excuse. The fact that he managed to enter the premises showed that there were insufficient safety measures to keep away members of the public from the site.
It is now the trite position of the law that superior courts will only interfere with unterminated proceedings of lower courts in very exceptional circumstances. The onus is on the applicant to demonstrate why interference is warranted at this stage of the proceedings. The applicant accepts this position of the law in its heads of argument. It made reference to the case of Attorney General v Makamba wherein Malaba JA (as he was then) articulated the position of the law as follows:
“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant. In Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1(A) Steyn CT at page 4 said:
‘It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion ----. A superior court should be slow to intervene in unterminated proceedings in a court below and should generally speaking confine the exercise of its powers to ‘rare cases where grave injustice must otherwise result or where justice might not by other means be obtained’.”
See also Ndlovu v Regional Magistrate, Eastern Division and Another 1989(1) ZLR 264(H) at 269C, 270G; Masedza and others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) at 41C.”
The same sentiments were also expressed in a recent judgment of the same court in Gumbura & 6 Ors v Mapfumo N.O., where makoni JA said:
“It is settled law that a superior court will not readily interfere with unterminated criminal proceedings of a lower court except in exceptional circumstances. These include instances where grave injustice would occur if the superior court does not intervene and where there is gross irregularity resulting in a miscarriage of justice. One such instance is where there is a probability of the proceedings being a nullity. “It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial likely to be declared a nullity.” See Matapo & Ors v Bhila NO 7 Anor 2010 (1) ZLR 321 (H) at 325 F. The task of assessing whether or not unterminated criminal proceedings ought to be stayed involves the exercise of discretion…..”
The exceptional circumstances in which a superior court would readily interfere with unterminated proceedings include those instances where non-interference would result in a gross miscarriage of justice, and there is no other remedy but for the Court to step in. The applicant’s application must be considered in the context of the above position of the law, as well as the principles of the law applicable to applications for discharge at the close of the State case.
In Attorney General v Bennet, the Supreme Court set out the factors that are to be considered by a court faced with an application for discharge at the close of the State case. These are that:
- there is no evidence to prove an essential element of the offence;
- there is no evidence on which a reasonable Court, acting carefully might properly convict;
- the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable Court could safely act on it.
Similar views had also been expressed in the earlier case of S v Kachipare, where Gubbay CJ also laid out the legal principles applicable in an application of this nature.
This applicant contends that no evidence was led by the second respondent on which a reasonable Court could properly convict the applicant. The applicant insisted that the evidence led by the second respondent was manifestly unreliable to sustain a conviction. In its heads of argument, the applicant alluded to the evidence of the deceased’s brother, one Lovemore Mwandiambira. He was present at the scene of the crime, and for that reason his evidence was instructive in assessing the applicant’s culpability. The witness highlighted that it was the deceased’s first time to visit the church building on the day in question.
The building was walled and gated. The caretaker, one Richard Rikonda, only allowed the deceased into the church building because he was in the company of Lovemore Mwandiambira, a member of the congregation. The applicant’s leadership had made regular announcements to the effect that members of the public were not allowed at the roof of the structure under construction where the electricity line was located. Lovemore Mwandiambira was aware of the dangers of going to the roof top of the structure. It was therefore not reasonably foreseeable that a visitor in the company of a church member well versed with the dangers of going to the roof top of the structure would nevertheless visit the area and get electrocuted.
The critical issue for consideration in determining the applicant’s culpability is whether death through electrocution was reasonably foreseeable, despite all the safety measures that the applicant claims to have put in place to avert such a tragic occurrence. In my view, the enquiry should not end with a consideration of those measures that were put in place to safeguard the lives of church members. As correctly observed by the learned magistrate in the court aquo, attendance at church for purposes of fellowship is not exclusive to known members of the congregation. Members of the public may attend church not necessarily because they want to become permanent members of the congregation. They may decide to go to church and fellowship on a particular day, even without being accompanied by any member of the congregation.
According to the outline of the State case, no barricades or signs were installed to stop people from going up to the first floor where there was poor clearance and the 11KV line was exposed, thus pausing a danger to anyone who went up the stairs. The deceased’s neck came into contact with the 11KV line leading to his electrocution and instant death.
If one were to go by the applicant’s own version, it would mean that the court must consider the applicant’s liability in the context of those preventive or safety measures that were put in place and aimed at safeguarding the lives of church members only. The assumption was that non-church members would not dare proceed to the roof top where the risk of getting electrocuted was always imminent. Such an approach would in my view be too narrow as correctly observed by the court aquo. It would mean that the applicant did not owe a duty of care to non-members of the church. That view is certainly ill-conceived and without merit.
If the applicant claims that it had put in place sufficient safeguards, as well as making regular announcements through the leadership of the church, then it is the adequacy and effectiveness of such measures that must be considered in the context of the generality of members of the public who would be expected to visit the church premises. The duty of care could not have been owed exclusively to members of the congregation. The applicant ought to have reasonably foreseen that even non church members could also come to the premises, even uninvited. Such a possibility called for the imposition and enforcement of measures aimed at keeping people, (be they church members or non-church members), out of harm’s way. This is the issue that the applicant must address as part of its defence case.
The applicant clearly owed some duty of care to all members of the public, regardless of their affiliation with the church. It created a hazardous situation by constructing directly under a live power line. The evidence placed before the first respondent calls for some rebuttal by the applicant, and that can only be achieved by placing the applicant on its defence. I therefore find no reason to fault the findings of the first respondent, in the manner he determined the application for discharge at the close of the State case, based on the evidence placed before him. The applicant must be given an opportunity to demonstrate the effectiveness of the safeguards that it put in place, which eliminated the risk of electrocution.
In view of the foregoing, it is this Court’s finding that the applicant has failed to set out a case that justifies an interference with the decision of the first respondent.
Accordingly, IT IS ORDERED THAT:
- The application for review be and is hereby dismissed.
- Each party shall bear its own costs.
Sinyoro and Partners, legal practitioners for the applicant
National Prosecuting Authority, second respondent’s legal practitioners
 [Chapter 9:23]
 2005 (2) ZLR 54(S) 64C-E
 SC 10/22 at p 8 of the judgment
 2011 (1) ZLR 396 (S)
 1998 (2) ZLR (S), the court set out the legal principles to be considered as follows:
- there is no evidence to prove the essential element of the offence see AG v Bvuma & Anor. 1987 (2) ZLR 96 at 102 F – G or
- there is no evidence on which a reasonable court acting carefully, might properly convict, see AG v Mzizi 1991 (2) ZLR 321 at 323 B or
- the evidence adduced on behalf of the State is manifestly unreliable that no reasonable court could safely act on it. See AG v Tarwirei 1997 (1) ZLR 575 (S) at 576 G