Solani Moyo and Innocent Ncube v The State

### Preamble
1
HB 153/20
HCA 93/18
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SOLANI MOYO

And

INNOCENT NCUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & KABASA JJ

BULAWAYO 6 JULY 2020

Criminal Appeal

Advocate G. Nyoni with P. Butshe-Dube for appellants

S. Ngwenya, for the respondent

KABASA J:	The appellants appeared before a magistrate at Plumtree Magistrates’ Court facing a charge of public violence as defined in section 36 (1) (a) of the Criminal Law (Codification and Reform) Act, Chapter 9:23. They pleaded not guilty but were convicted and sentenced to a fine of $500 or in default of payment 90 days imprisonment for the first appellant and $200 or in default of payment 40 days imprisonment for the second appellant.  This appeal is against conviction only.  The appellants attack the court a quo’s decision on the following grounds:

The court a quo erred in failing to appreciate that the essential elements of the crime charged were not proved, in particular in that whatever was alleged to have happened was not sufficiently serious as to amount to a crime of public violence.

The court a quo erred at law by relying on the evidence of accomplice witnesses without cautioning itself against the dangers of relying on the uncorroborated evidence of such witnesses who contradicted each other.

The court a quo erred in fact and law when it adopted the boxing ring approach in apportioning blame on the appellants when the evidence led was just that of the state witnesses against that of the appellants.

The charges against the appellants arose from an incident that occurred on 26th July 2018.  The appellants, together with other members of the MDC Alliance, were conducting an MDC Alliance campaign road show in Madubes Township in Plumtree when they met members of ZANU (PF) who were on a door to door campaign in the same Madubes area.It is alleged the appellants confronted the ZANU (PF) members accusing them of conducting political activities on a day they had been cleared by the Police to hold a road show.  Kanongovere Muzondiwa and Thandi Moyo who were part of the ZANU (PF) group were then assaulted with clenched fists before one Allan Gaba restrained the appellants who then drove off.

In their defence the appellants stated that it was the Zanu PF supporters who disrupted their road show and the first appellant only pushed Kanongovere who was drunk so that he could move out of their way. They did not assault any one either at that time or any time thereafter.

The state led evidence from four witnesses.  Kanongovere testified to the effect that he and his colleagues were on a door to door campaign when they met the appellants who were blowing whistles and holding “Chamisa flyers”.  Kanongovere in turn lifted their own flyers and chanted their party slogans.  The first appellant then confronted them and struck him twice with a fist on the shoulders before proceeding to fetch a knobkerrie from one of the vehicles they were using.  The other youths continued with the assault injuring his hand in the process.

This witness’ evidence was at variance with the second witness’.  Thandi Moyo’s testimony was to the effect that Kanongovere was assaulted once with a clenched fist by the first appellant before the first appellant left to go and fetch a knobkerrie.  The second appellant also assaulted Kanongovere but she did not see how many times.

Melani Moyo who was the third witness testified to the effect that the first appellant struck Kanongovere with clenched fists on the shoulder before he was restrained by Allan Gaba.  The witness was not assaulted and she did not observe the second appellant assaulting anyone.

The last witness Allen Gaba testified to the effect that “there were many people assaulting” but asked to specify who assaulted who he said the first appellant struck Kanongovere twice with clenched fists on the upper body and when the first appellant went back to one of the motor vehicles the MDC Alliance people were using, the second appellant and one other youth continued assaulting Kanongovere.  The first appellant then returned to the scene and joined in the assault until the witness restrained him.

From the foregoing the following was evident:

The first witness, Kanongovere’s description of what transpired was not supported by the other witnesses.  The court a quoobserved that he had exaggerated his injuries.  When he first appeared in court he could move his hand freely and it was not in a cast but when the trial commenced his arm was in a cast and he was grimacing as if in pain.

Thandi Moyo would not admit that her group reacted to the appellants’ campaign by also holding up their campaign posters and chanting their party slogans.

Melani Moyo did not see the second appellant assaulting any one, the appellants were jointly charged with 2 others who the witness did not observe participating in the assault and this was contrary to Allan Gaba’s evidence.

Allan Gaba described a prolonged assault on Kanongovere and contrary to the other witnesses’ evidence, asserted that the appellants’ co-accused who were acquitted of the charges had also assaulted Kanongovere.

The trial pitted two warring parties who had different versions as to the events of that day.

The description of the incident did not show how Kanongovere’s injuries could have been sustained.  There was mention of a knobkerrie but none of the witnesses testified to the effect that they saw the first appellant with a knobkerrie or that any weapon was used.

No evidence was led as to how long the incident took and the court a quo surmised that it must have taken some time.  A reading of the record and the third witness’ evidence suggested otherwise.  The witnesses’ brief description of the incident gave the impression that it was not protracted and the brief skirmish was mainly between the first appellant and Kanongovere.

In Wilson Mangena and 5 Others v State HB-22-05, an appeal judgment by NDOU J, sitting with CHIWESHE J (as he then was), the learned judge made the following pertinent observations:-

“Public violence, vis publica, is generally a serious offence striking at the roots of orderly and peaceful co-existence. It is aimed at a vital and main objective of criminal law itself.

‘In an atmosphere and under circumstances of disorderly mob rule, of a serious breach of public peace and orderly co-existence, the law itself may become endangered.  Orderly administration may become difficult, if not impossible and interests of law  abiding members of society may be seriously and irreparably prejudiced …”  South African Criminal Law and Procedure Vol. 11, Common Law Crimes, 3rd Ed, P M A Hunt and J R L Milton at pages 95-96.”

Can one describe the incident that occurred on 26th July 2018 as a serious breach of public peace and orderly co-existence I think not.

S 36 (1) of the Criminal Code specifically states that:

“(1)	A person who acting in concert with one or more other persons, forcibly and to a serious extent –

Disturbs the peace, security or order of the public or any section of the public; or

Invades the rights of other people,” commits the crime of public violence.

The evidence must therefore show that the appellants acted in concert in forcibly and to a serious extent disturbing the peace, security or order of the public or invading the rights of other people.

Subsection (3) thereof goes further to state what is considered in determining whether an incident is sufficiently serious to constitute the crime of public violence.  The court is enjoined to take into account all relevant factors, including the following:-

“(a)	the nature and duration of the disturbance or invasion

(b) the motive of the persons involved in the disturbance or invasion

(c)	whether the disturbance or invasion occurred in a public place or on private property

(d) whether or not the persons involved in the disturbance or invasion were armed and if so, the motive of the invasion

(f) whether or not bodily injury or damage to property occurred in the course of or as a result of the disturbance or invasion

(g) whether or not there was an attack on the police or on other persons in lawful authority

(h) the manner in which the disturbance or invasion came to an end.”

In casu, there is nothing on record to show that the incident took time or that there was mob violence.The appellants were on a police cleared road show and that was the reason for their presence on the streets of Plumtree.  They therefore did not go out on the streets for the purpose of causing mayhem, disturbing the peace, security or order of the public or invading the rights of others.  There was no evidence that any of the appellants or those in their company were armed.

The 2 medical reports tendered in evidence for Kanongovere and Thandi Moyo described the injuries as “swollen right shoulder” and “painful right breast”. There was no attack on the police or any persons in lawful authority and it took Allen Gaba to stop the “disturbance”.

The very fact that it took Allan Gaba, one individual, who does not appear to have done much except to remonstrate with the first appellant, speaks volumes as to the nature of the incident.  It can hardly be described as a disturbance of the peace, security and order of the public, let alone of a serious nature.  The appellants were initially charged with 2 others who were however acquitted at the end of the trial.  The acquittal of the two is in itself indicative of the fact that what transpired on this day hardly assumed the character of “public violence or invasion of the rights of others”.

In R v Cele 1958 (1) SA 144, the offence of public violence was defined as follows:

“… the crime is committed when a considerable body of persons armed even with sticks and stones, (ibid) act in concert, though not necessarily with premeditation (R v Marthinus and Others, 1941, CPD 319; R v Ndaba and Others 1942 OPD 144) so as forcibly (a) to disturb the public peace or security or (b) to invade the rights of others … that if the numbers involved are small and the locality and the nature of the quarrel is private and restricted the acts will not constitute public violence.”

The most that came out of the evidence in casu was that Kanongovere was struck twice on the shoulder with clenched fists, Thandi Moyo was struck once on the breast with a clenched fist and no weapons were used nor were serious injuries sustained.  Not much effort was required to stop the quarrel.

At most the appellants could have been convicted of assault which ought to have been the charge preferred against them and not public violence.

I have already observed the fact that the evidence in casu was from warring individuals. In S v Muzonza and Others SC-217-88 the Supreme Court remarked on the undesirability of relying solely and entirely on the evidence of a complainant in assault cases especially where there are counter allegations of provocation or justification. The appellants alleged provocation in that the witnesses sought to disrupt their police cleared road show. They had clearance and the witnesses did not have such clearance to go on a political campaign. In casu the trial court found that Kanongovere had exaggerated his injuries, a clear indication of a witness with an interest to serve and desirous of placing himself in a favourable light whilst shifting all the blame on the other side. Not only that but the state witnesses’ evidence was at variance as to who did what.

The 2 appellants were convicted based on the evidence of witnesses whose evidence appears not to have been accepted in order to secure convictions for the co-accused who were subsequently acquitted. If the trial court was not satisfied that Kanongovere and Allan’s evidence which sought to nail the co-accused as having taken part in the assault, how could it rely on the same witnesses’ evidence in order to convict the 2 appellants? It therefore could not be said the appellants’ story was shown to be not only improbable but beyond doubt false (Rv Difford 1937 AD 370). The probabilities of the matter were therefore fairly evenly divided, making a conviction even on a charge of assault unsafe in the circumstances.

In the result, the appeal succeeds.  The conviction is accordingly set aside.

Makonese J …………………………….. I agree

Mathonsi Ncube Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners