THE State V Jefrey Mukuli AND Benjamin Nhidza

### Preamble
1
HB 201.19
HC (CRB) 93/19
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THE STATE

Versus

JEFREY MUKULI

AND

BENJAMIN NHIDZA

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J with assessors Mr T E Ndlovu and Mr J L M Zulu

HWANGE CIRCUIT 12, 13, 14 & 15 NOVEMBER 2019

Civil Trial

B Tshabalala, for the state

G Muvhiringi, for the accused

MABHIKWA J:	The two accused persons appeared in this court charged with two (2) counts of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, it being alleged that on 16 October 2010 and at Chomuzi island, in the Zambezi river, Victoria Falls, the two accused persons caused the deaths of Abel and Dennis Ngandu by drowning, ordering them to swim across the Zambezi river from the Zimbabwean side to the Zambian side intending to kill them or realising that there is a real risk or possibility that their conduct may cause the deaths of Abel and Dennis Ngandu, continued to engage in that conduct despite the real risk or possibility .

The accused persons denied the two counts of murder and stated in their defence outline that the deceased and their colleagues went into the Zambezi river waters voluntarily while escaping from the accused’s custody after being arrested for illegal fishing.

It is pertinent at this stage to mention that it has taken almost then (10) years for this case to be tried, it having occurred on 16 October 2010.  Accused 1 stated in his evidence that he is now 44 years old, meaning that at the time, he was 32 years old.  Accused 2’s age is indicated as having been 29 at the time of the occurrence in 2010.

Common Cause Facts

It is common cause that the two (2) deceased were father and son aged 30 and 4 years at the time they met their creator.

It is common cause also that the two accused were (Rangers employed by the Zambezi National Parks and Wildlife) They are still employed by the National Parks and Wildlife.  On 16 October 2010, they were on Pattol duty on Chomuzi  island on the Zambezi river, Victoria Falls.

It is common cause also that the accused persons arrested or purported to arrest the Zambian nationals for illegal fishing on the Zimbabwean side.

That after arresting them, they took them inland into Zimbabwe together with their canoe.  They confiscated the canoe, fishing nets and the fish.

Evidence of Joseph Masuku and Nicholas Makhaya

The court will deal with the evidence simultaneously because it was essentially the same.

The two witnesses are now 26 and 25 years old respectively meaning that at the time of the commission of the offence they were 17 and 16 respectively.  Joseph testified that the 1st deceased, Abel Ngandu was his uncle whilst the four year old Dennis (2nd deceased was his cousin).  Nicholas also told the court that Abel Ngandu was “his father” in an extended family set up and Dennis was his cousin.  He must have been referring to the African culture noms wherein in many African societies, a father’s brother and a maternal aunt’s husband would be described as “father” instead of uncle.  Be that as it may, the important fact is that on that day, Abel Ngandu (30 years old then) was in the company of his 4 year old son and two (2) nephews who were all minors at the time.

Joseph testified that on the fateful day, 16 October 2010, they went fishing.  They were perched on an island in the Zambezi river from about 0900 hours to about 1500 hours at the said fishing spot.  As they were preparing to wind up their fishing business for that day they went to their canoe.  Before long, they discovered that the accused had been apparently laying in ambush.  First to arrive were the two juveniles and soon after, the two now deceased.

As the accused were concentrating on the new arrivals, one Mabole Kamujoma, whom they had earlier arrested, bolted and ran towards the 1st deceased and told him that the two juveniles had been arrested and that the accused wanted to take them to Zimbabwe.  Apparently, this is the reason Abel approached the accused and insisted or pleaded with them not to take them to the Zimbabwean Police.  The two accused also confirmed that they wanted to take them to the Zimbabwe Police at Victoria Falls.  The Zambians apparently dreaded Zimbabwean prison conditions for whatsoever reason and they mentioned this fact to the accused.

They were then given 3 options

That they be taken to Victoria Falls Police

That they be killed and

That they swim across the Zambezi river back into Zambia.

They elected to go back to Zambia.  Having made that choice, they were ordered by the accused to carry their canoe, fishing nets and fish to “their base” in Zimbabwe, which they did.  Some inland and about 100m from the point of arrest, they were told to put down the boat and other items.

They, together with the accused persons went back to the river.  From the two witnesses’ explanation, this was because of their election that they would rather go back to Zambia.  But when they got to the river they became reluctant to go into it.  They said they were then scared of crocodiles.  In cross-examination, they said there are not only crocodiles in the Zambezi but a lot of other dangerous creatures like hippos.

They eventually stood side by side about 48cm apart between Joseph, then Nicholas, and then Abel who was carrying his 4 year old son on his shoulders.  The accused were standing a few metres behind them and told them to be fast and go.  Around that time, and according to Joseph a shot was fired from a gun.  Although they were not told anything about the fired shot, they felt scared.  It must be said that the two witnesses somewhat differ on the point at which the gunshot was fired.  Nicholas seems to suggest that the gunshot was fired at a different place and was probably not meant for them, but nonetheless they were scared.  In fact the two witnesses say the effect of the shot in the circumstances scared them that the accused meant business.

The three of them and with the 4 year old on Abel’s shoulders, slowly got into the water with the accused still standing just behind them and motioning them to go on.

After walking on the shallow waters for just about two to three metres they got to the deep waters and started swimming, Abel Ngandu, with the 4 year old on his shoulders only swam for about 12 metres and sank, he resurfaced and sank again.  He then sank for the 3rd and final time It appears from Nicholas that the 2nd deceased (4 year old) did not sink immediately with his father as he was seen being carried away by water current wailing.

The two juveniles then swam up to a point where Nicholas Makaya got tired and perched himself on a rock in the river.  Joseph swam right across and succeeded.  He then ran to inform the elders and other villagers who brought a boat and rescued Nicholas.  According to Joseph, the distance he swam from the island to the Zambian soil was about 150m.  Immediately thereafter, a report was made to the Zambian authorities.   The witnesses were adamant that when all this was happening and when they got reluctant to get into the water while standing abrest, the two accused were right behind them, motioning and saying “fast, get into the water – go.”

They conceded that the two accused did not touch them or use any physical force but they did use verbal threats.  Asked how many Zambians were arrested and under the accused’s control, the witness Joseph said they were six of them at one stage.  This evidence is corroborated by paragraph 1 of the accused’s defence which they however contradicted in court when they said they only arrested five (5).  The two witnesses were also quizzed in cross-examination on alleged differences between one or two aspects of their evidence in chief and statements purportedly made by them to the police and signed by them.

This court finds that firstly this incident took place more than nine (9) years ago when the witnesses were in fact juveniles and cannot be expected to be accurate in all details.

Secondly, Joseph said the recorded statement was simply put on a desk and he was told by a police officer to sign.  The recording or recorded information had mostly been taken from one Leon Nyambe.  It was not established by counsel whether the juveniles’ guardian were present in the recording of the alleged affidavit statements.  But from the way the question and answer session took place in court, it appears the guardians were not even present.

Thirdly, it is the court’s findings that even if it were to be accepted that there were inconsistencies as pointed out, such inconsistencies do not go to the root of the state case.  It is trite that inconsistencies between evidence and Police recorded statements are only relevant and may be relied upon, if they go to the root of the state case.  That has not been shown in this case.

Ultimately, the court finds that the two witnesses’ evidence was credible and corroborative of each other.  The two young men in any case had no reason to make such a story about the drowning of their uncle and cousin.  The accused themselves have not even alleged and shown any such reason.

The 3rd witness was Henry Mumbelunga, a member of the Zambian Police force who simply told the court that after receiving a report of the incident, a search party was organized. The body of the 1st deceased was found the following day on 17 October 2010 whilst that of the 2nd deceased was found two days later on 18 October 2010.  He also explained why there was no post mortem done in that the bodies were in a badly decomposed state and that the traditional leaders in Zambia together with the close relatives of the deceased refused to have the post mortem done on the bodies in that state.

The accused testified in their own case and impressed the court as witnesses who were kin to give evidence that would suit and counter what they have heard in court.

Firstly they admit that they arrested the Zambians on the island and took them inland to a road described as Zambezi drive.  They claim that they went to that road and took the boats, nets and fish there as exhibits so that any vehicle finding them and their suspects there would carry them to Victoria Falls Police.

Whilst the state witnesses explain exactly how and why they were taken back to the river, the accused do not give a clear explanation even when asked over and over, they would not give a clear reason for returning to the river with all the accused including the child.  The court does not accept as real the explanation that they were going to collect the suspects’ belongings, to look for paddles or to look for ivory, guns and other weapons.  They in fact ultimately paint the suspects as seemingly dangerous, yet they appear to have been comfortably wandering about with them uncuffed.  Secondly in trying to counter and explain the reason for going back to the river leading to the alleged escape of all suspects, they went along with the evidence of the two witnesses right up to the river.  They then give an impression that all four, the two juveniles and the deceased just got into the water at once and disappeared in a bid to escape.  They then claim, especially accused 2 that they are not trained to rescue drowning people.  In fact accused 2 says that in any event he cannot even swim.

In so doing, the accused completely forgot and abandoned their defence outline.  I have already refered to paragraph 1 of their defence outline.  Paragraphs 3 to 10 are revealing and completely different from the evidence given by the accused in court.

In short according to the bulk of the defence outline, the accused arrested Ngandu, Masuku, Makaya, Mabole, Leon Nyambe and Dennis Ngandu (4 year old).  They had used a canoe to cross into Zimbabwe.  Abel and his colleagues then allegedly refused to go to Zimbabwean police insisting that they would rather go back to Zambia.  That in the process, Mabole fled from the accused and crossed into Zambia.  Paragraph 6 says Abel and the other 3 as well as the child (4) then remained with the accused.  They continued to plead with the accused persons that they be allowed to go back to Zambia but the accused insisted that they were under arrest and are being taken to Zambia.

Paragraph 8 then says Abel Ngandu’s 3 colleagues then escaped as they were not handcuffed leaving behind Abel and his 4 year old son.  By the way, all this is happening separately according to their outline, as the two accused claim they chased after the 3 escapees who outpaced them and jumped into the water and started swimming across.

Paragraph 9 says that as they chased after the other escapees, Abel carried his son Dennis on his shoulders and went into the river.  Indeed 1st accused’s evidence gave an impression that as they returned from the chase, they “met” Abel with his son on his shoulders running to the water.  They attempted to stop or call him but failed.

There is absolutely no mention whatsoever in their defence outline that they went back to the river with the suspects.  Further there was no mention that the reason for doing so was to check for weapons, ivory, paddles etc.  There was absolutely no mention in the outline, that the 4 (Ngandu, Joseph, Nicholas and 4 year old Dennis all went into the river at the same …. With the accused also present behind them.That was clearly an afterthought to try and explain away why they returned to the river with all the suspects but without their boat fish and nets.

There is also no mention whatsoever that as rangers who had accessed these suspects and some of whom were minor and after watching them get into the Zambezi river, which the accused themselves described as having all sorts of dangerous creatures when asked why  they did nothing to alert other people including the Police sub aqua Unit for a rescue mission considering it was them who had confiscated their boat.  1st accused’s explanation was that as far as they were concerned, the suspects entered the dangerous waters on their own,  perhaps they had something up their sleeves.  However on the second day of trial the following day, 2nd accused had a ready answer for that same question claiming that they made efforts to help and inform the police

In S vs Tapera & Others HH 372-12 Police officers created a very harzadous situation forcing a driver to reverse for a considerabke distance to go to a nearby Police Station at night.  They failed to handle the situation properly and warn others leading to the death of 3 people including a driver.  They were charged under the Criminal Law Code and found guilty of culpable homicide

See also State v Berdett 1996 (2) ZLR 658

In casu, the Rangers, who are officers in their own right, were very negligent in deciding to take the 4 suspects to the river and make them swim across to Zambia.  Even if their uncle had initially opted that they swim back to Zambia, it was wrong and negligent of them to hold that he had done so on behalf of the minors including a 4 year old.  Moreso, when the uncle and the juveniles became reluctant to go into the waters, it was very negligent of the Rangers to threaten them and make them go ahead and enter the dangerous river.  However, it cannot be said in my view that they intended to kill the deceased whether by actual intent or dollus eventualis.  Accordingly, both accused persons are found not guilty of murder but guilty of Culpable Homicide.

Sentence

One judge once remarked that the assessment of sentence is that one difficult moment for a judge when he feels completely alone, where he nonetheless has to look at and consider the facts and circumstances of a case, the circumstances and interests of the offender, the interests of society, the victims in this, etc to blend them all into what constitutes “the interests of justice.”

The court will thus consider all that was submitted by counsel for the accused in their favour in mitigation.  They are 40 and 39 respectively and still have something to offer to society, children to fend for.

What weighs in favour of the accused heavily is the delay of almost 10 years before this matter was heard.  Counsel for the accused submitted that the delay was not of the accused’s making otherwise they were co-operating with the authorities although they did not positively asset their right to a speedy trial either.  Of course there are times when one feels that asserting that right may amount to prosecuting one’s self.

Also weighing in their favour is the fact that there appears from the facts and evidence an indication that the accused may have erroneously entertained some belief that the deceased and others were prepared to take the risk and swim across.  But the court believes that this is not the type of case for the volenti non injuria – lex principle which in any event applies mostly in civil cases, and not serious criminal matters.  There was no physical force used but of course the fear of a threat especially from rangers standing right behind the victims cannot be ignored.

However, there is no doubt that the accused acted unreasonably and negligently on that fateful day leading to loss of two (2) precious lives.  They themselves said in evidence that the Zambezi river is infested with all sorts of deadly creatures like hippos and crocodiles – add the deep and deadly waters themselves.  They should not, in all fairness have acted in the manner they did.

What Nicholas Makaya witnessed, when at only 16 he had to watch in horror, and in “Friday the 13th horror movie style, his 4 year old cousin wailing incessantly as the deadly Zambezi water currents carried him away turning him over and over, right, left and centre until he disappeared.  Even the sinking and resurfacing until the last sink of Abel Ngandu just about 12 or so metres away from the start of the river, where the accused were standing, should having turned them human

I entirely agree with my brother BERE J in State v Philip Tsunde HH 559-15, that where the welfare and interests of minor children are at stake, this court, (the High Court) takes pride in its being the upper guardian of all minors.

In casu in fact, the lives of 3 minor children were put in grave danger by the accused who appear to have very little remorse for their conduct.

A wholly suspended …. sentence as pleaded for by Counsel would be totally inappropriate

The court agrees with the state that what is more aggravating is that the offence was not committed by some ordinary laymen but by 2 trained officers who in fact created a dangerous situation and completely forgot that they ordinarily have a duty towards society and more so, a duty towards those they arrest and under their direct authority and control regardless of nationality.  After all, they had taken away the victims’ boat which they had used to come to the island in question.

In the circumstances the accused are sentenced as follows:

The two counts taken as one for purposes of sentence.

Each accused is sentenced to 12 years imprisonment of which 4 years imprisonment is suspended for 5 years on condition he does not, within that period commit any offence involving violence, for which upon conviction, he is sentenced to imprisonment without the option of a fine.

Effective Sentence – 8 years imprisonment.

The National Prosecuting Authority, state’s legal practitioners

Mvhiringi and Associates, accused’s legal practitioners