Chadmore Chakaingesu (2) Trust Hapanyengwi (3) Ruka Biton (4) Mighty Nyon (5) Mitewell Moyo (6) Ishmael Zibula (7) Spencer Chigondo v The State

### Preamble
Judgment No. SC 35/25
1
Civil Appeal No. SC 289/24
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REPORTABLE   (35)

CHADMORE     CHAKAINGESU     (2)     TRUST     HAPANYENGWI     (3) RUKA     BITON     (4)     MIGHTY     NYONI      (5)     MITEWELL     MOYO      (6)     ISHMAEL     ZIBULA      (7)     SPENCER     CHIGONDO

v

THE     STATE

COURT MARTIAL APPEAL COURT OF ZIMBABWE

BHUNU JA, CHIWESHE JA & MUSAKWA JA

HARARE:  26 SEPTEMBER 2024 & 8 MAY 2025

The appellants in person

T. Mzizi, for the respondent

MUSAKWA JA:

This is an appeal against the whole judgment of the General Court Martial (the court a quo) which convicted the appellants of robbery as defined in s 39 (2) (a) of the First Schedule to the Defence Act [Chapter 11:02], as read with s 126 (a) of the Criminal Law Codification and Reform Act [Chapter 9:23] (hereinafter referred to as the ‘Code’). The robbery was committed at Chidamoyo Hospital (the hospital), Karoi. The appellants were jointly tried with Major Fortune Murondatsimba to whom they attributed the orders constituting the basis of their defence.

BACKGROUND FACTS

The appellants are former members of the Zimbabwe Defence Forces (‘ZDF’) and were attached to the Special Air Service (SAS) unit.  They were convicted and sentenced by the court a quo on 23 September 2020 as follows:

The first appellant - 35 years’ imprisonment.

The second appellant - 30 years’ imprisonment.

The third appellant - 30 years’ imprisonment.

The fourth appellant - 25 years’ imprisonment.

The fifth appellant - 33 years’ imprisonment.

The sixth appellant - 33 years’ imprisonment.

The seventh appellant - 35 years’ imprisonment.

The severity of punishment was based on the military ranks and responsibilities of each appellant.  All appellants were demoted in rank to the rank of first year Private and were discharged from the ZDF ignominiously. In respect of each appellant, three years’ imprisonment was suspended for five years on condition of future good behaviour.  A further two years’ imprisonment in respect of each appellant was suspended on condition of restitution in the amounts of US$843 and ZWL21 496 to the hospital.

The facts leading to the appellants’ conviction and sentencing are as follows:  On 5 July 2020, around 4:00 am, the appellants went to the hospital.  They were armed with two AK-47 rifles, two Tokarev pistols, a bolt cutter, and a sledgehammer.  They used violence and threats against Twoboy Chiweshe, McCarthy Catherine, and Benjamin Ndoro (the complainants).

The appellants forcibly entered McCarthy Catherine's residence, marched her to the hospital's administration block, and used force to gain entry.  They then ordered Twoboy Chiweshe and Benjamin Ndoro to load a Chubb safe onto a Jeep motor vehicle and drove away with the complainants. They abandoned the motor vehicle and dumped the complainants near Kanyongo River where they transferred their loot onto another vehicle and drove away with the property.  The appellants later opened the Chubb safe in a bush and stole its contents.  Upon their arrest, near the 122 km peg along the Harare-Chirundu Road, the appellants were driving a Ford Ranger registration number ACF 6697.  A search team led by Detective Sergeant Chitiza recovered two AK47 rifles (serial numbers ZA 73751 and ZA 12875), two Tokarev pistols (serial numbers ZA 0158 and ZA 2320), USD$ 1,556.00, ZWL$ 30,268.00, 1,260 litres of Puma diesel coupons, 200 litres of Puma petrol coupons, ZWL$ 10.00 worth of seven Buddie Airtime Cards, and Net One Airtime Cards of ZWL$ 20.00 x 11, ZWL$ 10.00, and ZWL                       $ 5.00.

In response to the allegations levelled against them, the appellants entered pleas of not guilty.  They admitted the following facts:  They assembled at Inkomo Toll Gate on 5 July 2020 with two AK 47 rifles (serial numbers ZA73751 and ZA12875) and two Tokarev pistols (serial numbers ZA0158 and ZA2320), which were drawn from Cleveland Range armoury.  From there they drove to the hospital in a civilian Ford Ranger motor vehicle, registration number ACF                  66 97, which was driven by a civilian.  On their way they picked up another civilian in Banket.  At the hospital they broke into McCathy Catherine’s residence and forced her to take them to the administration block where a safe was located.  They also forced Twoboy Chiweshe and Benjamin Ndoro to assist in loading the safe into the Jeep.  They drove away with the safe, abandoning the complainants and the Jeep near Kanyongo River.  Later they opened the safe and stole its contents which included USD$2 599.00 and ZWL$51 764.00.  Of the stolen amount USD$1 756.00 and ZWL$ 20,268.00 was recovered upon their arrest.

The State called in their first witness Lieutenant Colonel Taringana Casper Nyagura the Commanding Officer of SAS who testified that he was not aware of the operation.  According to him, the SAS reports directly to the Commander ZDF.  Orders for an operation come directly from the Commander ZDF and not as happened in the present case where the orders to the appellants did not originate from the top command.  At unit level, he as commanding officer directly briefs unit members if there is an operation that is to be conducted.  He further testified that the appellants used marked weapons that could be traced back to the ZDF, contrary to standing operational orders.  He also stated that the appellants could not have been so naïve as to involve civilians in military operations.  He denied tasking the first accused a quo (Fortune Murondatsimba) to undertake the mission and ever communicating with him on the day in question.  Lieutenant Colonel Nyagura stated that the operation was an act of revenge as he had once transferred Fortune Murondatsimba from the unit.  In total eight state witnesses were called and from their evidence, several facts emerged that appeared to be common cause.  These facts are that:

The operation was kickstarted by the first, second and seventh appellants.

There were seven soldiers and five civilians in the operation.

The Land Cruiser used for the operation would have been so used regardless of whether the commander knew about it or not.

The Ford Ranger was refueled at the tollgate with fuel coming from the quartermaster and contained in a plastic container.

At the time when all the appellants left their workplaces, there were no clear orders given.

Having admitted the facts the appellants testified that they were conducting operational orders from their Unit's second-in-command, Fortune Murondatsimba.  They claimed to be non-commissioned members who followed orders without questioning their legality.  They argued that the orders were consistent with previous sanctioned operations and that they had no means to verify the orders’ authenticity. They contended that the operation was a counter-insurgency measure against terrorism and public disorder.  They also claimed that the equipment used was sourced from their workstation.

From the testimony of the appellants, they went to Karoi together with Fortune Murondatsimba and some five civilians whose full names were not disclosed. Of the five civilians three were only known as Shutto, Mukanya and Mazvimavi. Then there was a teacher and some other person who had joined in Banket. Mazvimavi was the driver of the Ford Ranger vehicle. Mukanya, who had supplied information about a cash baron in Karoi gave directions to the hospital.  Although they were given orders by Fortune Murondatsimba whilst in Karoi, Fortune Murondatsimba did not join them in what turned out to be the robbery at the hospital.  In fact, Fortune Murondatsimba denied that he was aware of that specific target.  According to Fortune Murondatsimba, he was only aware that a raid was to be conducted on a cash baron who was suspected of funding subversive activities.  At the end of the day, it was the testimony of the appellants against Fortune Murondatsimba who in turn claimed to have been instructed by Lieutenant Colonel Nyagura to conduct the operation.

The trial court found that the appellants’ defence of obeying superior orders was unsupported by the evidence.  It ruled that the orders were unlawful and that targeting a health institution was unreasonable, as hospitals are protected under international humanitarian law.  The court a quo concluded that the orders should have been disobeyed and no sanction or threat would have been imposed on any subordinate for disobeying them.  Regarding sentence, the court                    a quo found aggravating factors in the use of arms, the tarnishing of the military organization's reputation, and the involvement of civilians.

Aggrieved by the decision of the court a quo, the appellants noted the instant appeal based on five grounds of appeal relating to the conviction and one ground relating to sentence.

GROUNDS OF APPEAL

“The court a quo denied (sic) to acknowledge that the appellants were on active service not regarding the fact that to these mere NCOs who were currently on standby for any given task, it was totally impossible for them not to believe or obey their chain of command.

The appellants were trained to observe and obey this chain of command and not otherwise as the court a quo put it that the appellants should have checked the authenticity of these orders and also referring to them as illegal and scanty.

The court a quo failed to notice that 3 different kinds of officers where present in this operation when giving the reasons for verdict.

The court a quo erred and erroneously applied the doctrine of common purpose since the requirements were not fulfilled.

The sentence imposed was out of ordinary and too harsh to induce a sense of shock upon delivering sentence and the learned court did not consider that life is only lived once and not in prison.”

ISSUES FOR DETERMINATION

All in all, the grounds of appeal raise the following issues for determination before this Court:

Whether or not the court a quo erred in failing to acknowledge that the appellants were on active service.

Whether or not the court a quo erred in referring to the orders given as illegal and thereby improperly dismissing the defense argument that the appellants were merely obeying lawful orders.

Whether or not the court a quo erred in its assessments by failing to recognize the presence and roles of different types of officers during the operation.

Whether or not the court a quo erred in relying on the doctrine of common purpose to convict the appellants.

Whether or not the court a quo properly sentenced the appellants.

THE APPELLANTS’ SUBMISSIONS ON APPEAL

The first appellant submitted that the court a quo wrongly convicted him as he was on standby carrying out his lawful duties.  He further contended that he together with all the appellants used designated vehicles, assigned drivers, guns, and fuel.  He maintained that it was recorded in the register at work that they were on duty and that he was complying with lawful orders.  He also submitted that they received instructions from Fortune Murondatsimba to raid the hospital.

The second appellant contended that he was wrongly convicted because he was on active duty and simply obeyed instructions from Fortune Murondatsimba.  The second appellant submitted that the instruction was to raid the hospital and seize items in the safe.  He further submitted that the court a quo should have noted that the register at work recorded that he was out on standby, which substantiated his claims.  Additionally, he contended that the court a quo should have considered that they used weapons signed for, fuel allotted to them by fuel attendants, and vehicles with assigned drivers for the operation.

The third appellant submitted that the court a quo should have considered that they were on standby and did not commit any illegal act because they were carrying out orders from the SAS.  The third appellant further claimed that they received orders regarding a suspicious white individual sponsoring political organizations.  He also submitted that they could not verify the lawfulness of their orders as their firearms were issued lawfully, indicating they were performing their lawful duties.  He submitted that an eight-year sentence was appropriate; a reduction in rank or detention for 180 days was severe punishment on its own.

The fourth appellant also submitted that the court a quo erred by not considering their recorded duty status and that they had no option but to comply with orders from their senior officers.  He further submitted that the court a quo erred by disregarding evidence from witnesses.  He further submitted that the court a quo did not consider SAS’s role but judged their conduct based solely on infantry standards.  Regarding sentence he submitted that it was manifestly excessive.

The fifth appellant contended that the respondent’s arguments primarily focused on sentencing without considering essential elements of the offence.  He maintained that the court a quo erred by failing to uphold their defence of being on active service and by invoking the common purpose doctrine when they were acting with their superior in common purpose.  He also submitted that the sentence was too harsh.

The sixth appellant submitted that he was recorded in the register as being on standby and could not have linked up with the other appellants if he was not on duty.  He submitted that this was his first operation and therefore, he could not question the given instructions.  The sixth appellant also argued that his sentence was too harsh as he was merely following orders from his superior officer.

The seventh appellant submitted that the court a quo erred in dismissing their claim of acting under superior orders.  He asserted that the reliance on evidence from a single witness who had animosity towards his superior officer affected fairness in judgment.  Furthermore, he claimed there were no reasons provided for sentencing Non-Commissioned Officers and contended that the sentences were based on assumptions.

RESPONDENT’S SUBMISSIONS ON APPEAL

Mr Mzizi for the respondent, submitted that the appellants were not on active service as defined by s 267 of the Code and that there was no active service declaration made.  He also referred to s 2 of the Defence Act which defines active service as will be shown hereunder.  Counsel further submitted that robbery committed in aggravating circumstances could warrant life imprisonment per s 126 (2) (a) of the Code.  He emphasized that s 211 of the Constitution of Zimbabwe, 2013 mandates a disciplined Defence Force while s 269 of the Code provides for circumstances under which obedience to illegal orders afford a complete defence.  Counsel submitted that the appellants' defences lacked sustainability since they had a duty to uphold the law especially in light of the fact that their Commanders denied the existence of any orders to rob a clinic.  Regarding sentence, counsel referred to s 28 of the Defence Forces (Discipline Regulations), Statutory Instrument 205 of 2003 which provides for review of proceedings of courts martial.  However, he further submitted that the appellants were out of time as a petition should be submitted within seven days of conviction.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court erred in failing to find that the appellants were on active service

The appellants argued that the court a quo misdirected itself in failing to find that they were on active service and thus under a chain of command impacting their capacity to refuse or disregard orders.  The appellants further argued that the court a quo failed to appreciate the specific operational and service knowledge of the appellants’ unit which negatively impacted its evaluation of their defence and the conduct of the operation.

Section 267 of the Code defines active operations as follows:

“Active operations” means⎯

(a) active service during any war in which Zimbabwe is engaged; or

(b) counterinsurgency operations; or

(c) the suppression of a riot or public disturbance or public violence; or

(d) the prevention of a disturbance within or escape from a prison.”

The above provision should be read in conjunction with s 109 of the Defence Act which provides that:

“The Minister may, by notice in a statutory instrument declare any service to be active service for purposes of the Act.”

On the other hand, s 2 of the Defence Act defines active service as follows:

“Active service” means:-

(a) any operations undertaken by the Defence Forces or other Military Forces against the enemy, including the patrolling of the border areas of Zimbabwe in search of the enemy; and

(b) any service declared by the Minister in terms of section one hundred and nine to be active service.”

In this case, the operation was not done in terms of the military protocols for it to qualify as active service.  From the evidence before the court a quo, there were no superior orders at the time the appellants left their respective stations for the operation.  There was no rebuttal by the appellants to show that they were acting under clear orders.  In addition, the operation was further proved to have not been sanctioned by the responsible commanders.  The appellants failed to demonstrate that it was an active operation. There was no testimony or documentation from the officers and personnel directly involved in the operation, confirming that the appellants were acting under specific orders from their superiors as they claimed.  The absence of sanctioned orders from responsible commanders further negates their claim of being on active service.

The argument that the appellants were on active service is devoid of merit because they failed to discharge the onus that they were operating under lawful orders or that their actions were sanctioned by responsible commanders.  The appellants further aver that the court a quo failed to adequately understand the specific operational and service knowledge of the appellants’ unit which negatively impacted the court’s evaluation of the defence and the conduct of the operation.  The court a quo dismissed the appellants' defence on the basis that the way the operation was executed was unheard of. The appellants were of the contention that there was a very wide gap between an ordinary soldier and a special force member.  However, in the absence of operational orders, the court a quo did not err in concluding that the appellants’ conduct was unlawful.

The evidence on record established that no operatives were verbally briefed about the task as per standard procedure before any operational task.  In this operation the routine procedure of declaring active service was not followed which further solidifies the findings of the court a quo that the operation was unprocedural. Considering the above analysis, there was no misdirection by the court a quo.

The appellants' first ground of appeal is fundamentally flawed due to their failure to provide evidence that they were operating under lawful orders or that their actions were sanctioned by responsible commanders. The court a quo correctly determined that the operation did not qualify as active service, as it did not adhere to established military protocols. Consequently, the appellants' claims lack merit, as they could not substantiate their assertions regarding their operational conduct or the legitimacy of their defense.

Whether or not the court erred in referring to the orders given as illegal and thereby improperly dismissing the defense argument that the appellants were merely obeying lawful orders.

The appellants contend that the court a quo erred in finding the orders illegal and rejecting their defense of obedience to superior orders as their status as active service members required them to obey orders from their chain of command without questioning their legality.  The appellants further contend that the court misunderstood military operations and procedures.  The court a quo made a finding that it was unlawful and unreasonable to target a health institution as a target for a raid as hospitals are protected by international humanitarian law.  The court a quo was of the view that the orders were not only unlawful but were to be disobeyed and no sanction or threat was to be visited on any of the appellants if they had disobeyed the orders.  In this regard, for the defense of lawful orders to succeed, the orders had to be legal and a defense based on following orders would be inapplicable where the orders are illegal.

In S v Mutamba 1992 (1) ZLR 102 (S) it was held that it is a well settled principle that a subordinate officer is justified to question and refuse to execute manifestly illegal orders. In such a case obedience to superior orders will not succeed as a defence.  Reference was made to the case of R v Werner 1947 (2) SA 828 (A).

The essential principle is that individuals cannot justify criminal conduct solely by claiming that they were following superior orders.  This principle emphasizes the necessity for orders within a military context to be lawful.  If an order is manifestly unlawful, it cannot sustain a defence against criminal charges.  This ensures accountability and upholds the rule of law, reinforcing that obedience to orders does not absolve service members from responsibility for illegal actions. Therefore, the court a quo did not misdirect itself in finding that individuals must be held accountable for actions that violate the law as there is a clear boundary between lawful and unlawful orders, and the latter does not absolve individuals of responsibility.  Orders must align with legal and ethical standards, in cases where they do not, individuals remain accountable for their actions.  The court a quo’s determination that the orders were illegal was supported by testimony indicating that they were not authorized by the appropriate military authorities.  As such, the appellants’ reliance on the defense of obedience to lawful orders was correctly rejected. Therefore, the argument that their status as active service members required them to obey orders from their chain of command without questioning their legality cannot stand. Under military law, members of the armed forces are generally required to obey lawful orders.

The principle of obedience to orders is governed by various statutes and regulations, including the Defence Act and the Code.  Paragraph 8 of the First Schedule to the Defence Act outlines the concept of “mutiny”, which includes refusing to obey lawful orders.  Also, s 268 of the Code addresses the defence of acting under lawful superior orders.  It states that a person may not be held criminally liable for actions taken under orders from a superior officer unless those orders are manifestly unlawful.  This section reinforces that while obedience to orders is a duty within military and law enforcement contexts, it does not extend to orders that are clearly illegal or violate fundamental legal principles.

The court a quo correctly found that the orders were unlawful, based on evidence that they were not sanctioned by the proper authorities.  The principle of lawful orders is fundamental, and mere adherence to an order does not absolve individuals of liability if the orders violate the law. Therefore, the appellants’ defence that they were simply obeying orders is meritless as elaborated above hence this ground of appeal is devoid of merit and is accordingly dismissed.

Whether or not the court erred in its assessments by failing to recognize the presence and roles of different types of officers during the operation.

The appellants argue that the court a quo failed to consider the involvement of various soldiers when evaluating the operation. By this we understand this relates to the issuance of fuel, guns and a motor vehicle by other soldiers at Cleveland Range.  However, there was no proof of complicity in the illegal operation by the officers who issued the provisions.

In light of the above, the arguments presented by the appellants regarding the court’s failure to consider the involvement of other soldiers during the operation cannot stand. This is so because the involvement of other soldiers does not alter the illegality of the orders or actions taken.  Each individual’s responsibility is assessed based on their specific role and knowledge of the orders given, emphasizing that legality is determined by the nature of those orders rather than the hierarchy of participants.  In this regard, the court a quo did not fail to consider the involvement of various soldiers hence this ground of appeal is meritless and is hereby dismissed.

Whether or not the court erred in relying on the doctrine of common purpose to convict the appellants.

The appellants further argue that the court a quo improperly applied the doctrine of common purpose on the basis that they simply followed orders collectively.  Indeed, in convicting the appellants, the court a quo held that they acted in common purpose with civilian co-conspirators in committing the crime.  However, the doctrine of common purpose was discarded by s 3 of the Code which provides that Roman-Dutch criminal law no longer applies within this jurisdiction. The evidence that was led against the appellants shows that they associated with each other to commit robbery.  The appellants were thus co-perpetrators in terms of s 196 A (1) of the Code.  See S v Madzokere SC 71/21 which discusses the principle of liability in terms of s 196 A (1). Despite the court a quo’s reliance on the discarded common law principle of common purpose, it cannot be said that this resulted in the conviction of innocent persons. The evidence available shows that the appellants committed the offence and the defence of obedience to superior orders could not be sustained.

In casu, the appellants associated with each other with the intention to commit robbery whilst armed with guns.  They succeeded in the enterprise save that they were subsequently arrested.  In light of the above discussion, this ground of appeal is devoid of merit and it ought to be dismissed.

Whether or not the court a quo properly sentenced the appellants

The appellants argue that the sentences imposed on them were excessive and that the court a quo did not consider the value of life outside prison.  The appellants further argue that the court a quo relied on assumptions in its assessment of sentence.

Section 80 of the Defence Act provides as follows:

“(1)   Subject to this section, an appellant may appeal against conviction to the Appeal Court-

on any ground of appeal which involves-

(i) a question of law alone; or

(ii) a question of fact alone; or

(iii) a question of mixed law and fact; or

on any other ground which is certified to be sufficient by—

(i)  the Appeal Court, where the appellant is stationed in Zimbabwe: or

(ii) the confirming authority, where the appellant is stationed outside    Zimbabwe.

(2)   Where an appeal certificate is refused by the confirming authority the appellant may apply to the Appeal Court for an appeal certificate and the Appeal Court may, if it thinks fit, issue such a certificate.

(3)   The procedure for-

(a) the noting of an appeal; and

(b) applying for an appeal certificate; and

(c) furnishing the Commander with a copy of-

(i) the notice of appeal; or

(ii) the application for an appeal certificate; shall be as prescribed by    rules of court.

(4)   Subsection (1) shall not affect the operation of any sentence of a court martial, other than a sentence of death.”

In light of this court’s confirmation of the appellants’ conviction, it follows, by virtue of the above provision that the sentences imposed cannot be interfered with.  As was held in S v Mugoni 1994 (2) ZLR 184 (A) at p 193F:

“Since this court has upheld the conviction, it is precluded under the Defence Act from altering the sentence imposed.  See S v Steele 1972 (1) RLR 377 (CMAppC) at 379F; S v Chibanda supra at 174D.”

See also the case of Tendai Kandima v The State SC 32-23 in which similar sentiments were expressed.

During this court’s exchanges with Mr Mzizi, it turned out that he was unaware of the Defence Forces (Courts Martial Procedure) Regulations, 1956. Section 50A (1) provides for reconsideration of every sentence in excess of 83 days by the officer who confirmed the sentence who is called the reconsidering officer.  In terms of s 50 (2) every such sentence shall be reconsidered at six-month intervals.  Despite the failure of this appeal, the door has not been completely shut on the appellants.  The reconsidering officer is exhorted to take note of this observation.

DISPOSITION

In light of the foregoing, the Court finds that the appeal lacks merit.  The appellants were properly convicted.  There is no legal basis to interfere with the sentences imposed.

Accordingly, it is ordered that the appeal be and is hereby dismissed in its entirety.

BHUNU JA                       :		I agree

CHIWESHE JA                : 		I agree

Defence Legal Services, respondent’s legal practitioners