The State v Angeline Gotora

### Preamble
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HH 848-18
CRB MRD R37/18
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THE STATE

versus

ANGELINE GOTORA

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 28 December 2018

Criminal Review

MUSAKWA J: This matter came before me by way of automatic review. Having reflected at length, I am of the view that the conviction is not safe. This is despite that the accused pleaded guilty.

The accused person is a 53 year old unemployed woman who resides in Gotora village, Mahusekwa. According to the agreed facts, on 16 October 2017 the accused person started a fire in the yard at her home in order to burn some rubbish she had gathered. The fire spread and she sought assistance from neighbours. The fire intensified and spread for about 1, 2 km and reached a garden in which was the deceased (a four year old boy). Although the deceased had been left at home, unbeknown to the father he had subsequently followed him to the garden. The deceased’s father (Eddison Mapuranga) tried to extinguish the fire which had engulfed the thatch that surrounded the garden but failed. Eddison Mapuranga then heard the deceased crying from inside the garden. By then the deceased’s clothes had caught fire. The deceased subsequently died from burns. The post-mortem report noted open flame burns on the body.

The charge alleged that:

“In that on 16 October 2017 and at Gatawa village, Chief Chiota, Mahusekwa, Angeline Gotora caused the death of Terrence Mapuranga a male juvenile by starting a veld fire negligently failing to realise that death might result from her conduct.”

A veld as defined in Oxford Advanced Learners Dictionary is an area of open grassland. The accused lit a fire in her yard. A homestead in a rural setup is not a veld. If it was a fact that the accused set fire to a veld I do not think the issue of her negligence could have been in doubt.

The following exchanges took place between the court and the accused person-

“Q: 	Do you admit that (sic) 16 October 2017 you set up a fire at your homestead?

A: 	Yes

Q: 	Do you admit that you failed to contain the fire and it spread outside your yard up to the gardens?

A: 	Yes

Q: 	Do you admit that the fire engulfed the garden in which the now deceased was?

A: 	Yes.

Q: 	Do you admit that the now deceased passed on (sic) a result of the burns he sustained?

A: 	Yes.

Q: 	Do you admit that had you acted as a reasonable person you could have foreseen that the fire might cause death to people in nearby gardens should you fail to contain it?

A: 	Yes.”

Arising from these facts the accused was convicted of culpable homicide. She was sentenced to 24 months’ imprisonment of which 12 months were suspended for 5 years on condition of good behaviour. The remaining 12 months were suspended on condition of performing 420 hours of community service.

Section 16 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides the following regarding negligence:

“(1) Where negligence is an element of any crime

(a) constituted by the performance of an act, the test is objective and consists of the inquiry whether the accused person’s performance of that act was blameworthy in that

(i) a reasonable person in the same circumstances as the accused would not have performed that act;

or

(ii) the accused failed to perform the act with the care and skill with which a reasonable person in the same circumstances would have performed that act;

whichever inquiry is appropriate to the crime in question; or

(b) constituted by the omission to perform an act, the test is objective and consists of the inquiry whether the accused person’s omission to perform that act was blameworthy in that a reasonable person in the same circumstances would not have omitted to perform the act; or

(c) constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and fall into two parts

(i) whether or not the accused person failed to realise that his or her conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and

(ii) if the accused person did fail as provided in subparagraph (i), whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances

A. would have realised that the relevant consequence might be produced and would have

guarded against it; or

B. would have realised that the relevant fact or circumstance might exist or be absent and

would have taken steps to ascertain whether or not it did exist;

as the case may be.

(2) For the avoidance of doubt it is declared that paragraph (c) of subsection (1) shall apply to the determination of the criminal liability of any person accused of culpable homicide, negligently causing serious bodily harm or negligently causing serious damage to property.”

I do not think that the facts of the matter are sufficient to found liability for culpable homicide. It is doubtful that the accused person appreciated the concepts of foreseeability and negligence. In S v Majarira 2003 (1) ZLR 606 CHINHENGO J held that negligence is not a concept that is readily understood by a lay person, more particularly an unrepresented accused. He further reasoned thus at p 610-

“The concept of negligence in culpable homicide has two components- the issue of foresight that death would be a consequence of the conduct in question, because the accused’s blameworthiness arises from a failure to foresee the death in circumstances where the reasonable man would have foreseen it. The second component requires an assessment of what should have been done in order to safeguard against death occurring. To arrive at the conclusion that the accused negligently caused the death it must be determined what steps should reasonably have been taken to prevent the death and whether the accused in fact took those steps, because it is the accused’s failure to take those reasonable steps which determines that the accused was negligent in bringing about the death: see Milton op.cit. at p 365. Negligence as a concept has a “certain chameleonic quality”, to borrow Milton’s words, which make it difficult for a lay person to fully understand.”

CHINHENGO J’s remarks are quite relevant to the present case. The layout of the accused’s residence should have been canvassed. One would have wanted to know whether the yard was overgrown with grass. This is important because generally yards in rural homes are usually swept clean. If it was one such household that was kept clean, it was important to establish how far the fire was lit from any grass, brush or other flammables. One would have wanted to know whether the fire simply spread on the ground on account of flammables or it was spread by a sudden gust of wind.

The need for investigations to establish the circumstances of the fire outbreak is reinforced by the provisions of the Environmental Management (Environmental Impact Assessment and Ecosystems Protection) Regulations, Statutory Instrument 7/2007. Section 18 (1) provides that after a fire outbreak an investigation and documentation of the cause of fire and the extent of the damage to the environment, property or loss of life shall be undertaken within seven days of the fire outbreak. For example, among several other persons, the land user or landowner, in the case of a farm or private property is one such person who is expected to conduct post suppression measures. It is doubtful though if most people are aware of this requirement. Police investigations ought to have been more comprehensive taking into account the need to document post outbreak observations. This way, the facts of the matter regarding negligence on the part of the accused person would have been clearer.

Had there been comprehensive investigations, and depending on the facts so established, the accused might not necessarily have been liable for culpable homicide. This is because s 15 of the Regulations imposes certain obligations whose non-compliance with is a crime punishable by a fine not exceeding level eight or imprisonment not exceeding one year or both such fine and such imprisonment. For example, in terms of s 15 (2) no person shall deliberately cause fire that he or she cannot extinguish which causes damage to the environment, property, or life.

Accordingly, the conviction and sentence is hereby set aside.

MUZOFA J agrees…………….