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Judgment No. HB 65/15
Case No. HC (CRB) 30/15
Xref No. Victoria Falls CR 150/12/07
THE STATE
versus
NYAKUDZI SHILLAH RUDO
HIGH COURT OF ZIMBABWE
MAKONESE J
HWANGE 16 MARCH 2015
Criminal Trial
Miss N. Ngwasha for the state
Mr T. Mukuku for the accused
MAKONESE J:
Accused was employed as a manager at Robins Camp, Hwange
National Park during 2007. She was then aged 42 years. When the trial commenced accused
was aged 49 years. Accused has been arraigned in this court on a charge of murder. It being
alleged that on 18 December 2007 and along Zambezi River, at Mpalajana, in the Province of
Matabeleland North, accused did wrongfully, unlawfully and intentionally kill and murder
Josephat Matsheza, a male adult aged 23 years.
The accused pleaded not guilty to the charge of murder. She tendered a plea of guilty
with respect to the lessor charge of culpable homicide. I accordingly entered a plea of not guilty
on the murder charge. The state indicated that it was conceding to the plea of guilty in respect of
culpable homicide. A statement of agreed facts was tendered into the record of proceedings as
Exhibit 1. The agreed facts are summarized as follows:
“STATEMENT OF AGREED FACTS
The state and the Defence agreed that the following issues are common cause being that:
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Judgment No. HB 65/15
Case No. HC (CRB) 30/15
Xref No. Victoria Falls CR 150/12/07
(1)
The accused resides at Matopo National Parks and was aged 42 years at the time
of the commission of the crime. She was employed as a manager at Robins
Camp, Hwange.
(2)
The deceased used to reside at Zambezi Camp, Victoria Falls, he was aged 23
years at the time he met his death.
(3)
Accused and deceased are not related but they both worked for National Parks.
(4)
On the 10th December 2007 the deceased was deployed by Trumber Jura the Area
Manager along the Zambezi river for routine patrol.
(5)
The accused was advised of this deployment and she deployed personnel along
the Kazungula – Victoria Falls area.
(6)
On the 17th December 2007 the accused moved her personnel from Kazungula –
Victoria falls area to patrolling along the Zambezi River after hearing that a
suspected poacher’s campsite had been sited.
(7)
Among the personnel were Mgcini Mlilo and Bhekinkosi Phuthi.
(8)
Accused did not communicate to her personnel that there had already been a
deployed into that area.
(9)
On the 18th December 2007 Mgcini Mlilo and Bhekinkosi Phuthi came across
deceased who had been earlier deployed by Trumber Jura, they suspected
deceased to be a poacher and they shot him several times using an AK 47 assault
rifle and he died on the spot from gunshot wounds.
(10)
The accused person pleads not guilty to murder but pleads guilty to culpable
homicide in that she negligently caused the death of the deceased.”
The state then produced a Post Mortem Report Number 652/650/2007 (Exhibit 2). Dr I.
Jekenya is a qualified medical practitioner attached to Mpilo Central Hospital. On 21 December
2007 he examined the remains of the deceased and compiled his findings in the post mortem
report. He concluded that the cause of death was:
(a)
polytrauma (multiple trauma)
(b)
multiple gunshot wounds
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Judgment No. HB 65/15
Case No. HC (CRB) 30/15
Xref No. Victoria Falls CR 150/12/07
On marks of violence the pathologist observed that the deceased’s body had multiple
gunshot wounds, and injuries as follows:
(a)
left above knee front entry wound 5mm from the side and exit 1.5cm
(b)
huge gun shot wounds above right knee
(c)
entry wound of the right shoulder with a lodged shrapnel.
(d)
multiple gun shot wounds of the right neck with fractured bones, mandible, maxillary
bone and raptured voice box, laryrix, oesophagus and thyroid.
(e)
entry wound on the opened mouth just below the left upper canine tooth. It passes
through the maxillary region to the left anterior and middle carnial fossae through the
temporal bone fracture and raptured left outer ear.
It is clear from these injuries that the deceased had no chance of survival. I am satisfied
that from the evidence presented in court that accused’s plea of guilty to the lessor charge of
culpable homicide was properly made.
The accused was clearly negligent in failing to
communicate to personnel under her command that the deceased had been earlier deployed in the
area. The accused was duly acquitted of murder and convicted of culpable homicide.
In assessing an appropriate sentence, the court took into account mitigating factors of the
case. The accused is a widow with three children. She was employed by the Department of
National Parks for more than 21 years. At the time of the offence she was employed as a
manager. She resigned in 2010. She is now self employed and operates a bookshop in Dete.
She is a female first offender who has pleaded guilty. The court took into consideration that
there is always a need to keep female first offenders out of prison wherever possible. Female
first offenders must only be sent to prison where imprisonment is the only appropriate sentence.
See the case of State v Lilian Ncube HB 97/07. The court was advised that at the time of this
offence there was an anti-poaching operation in the Hwange and Victoria falls area. The game
rangers were on a crusade against dangerous and armed poachers who were targeting rhinos. In
2007 a total of 16 rhinos had already been shot and killed by these poachers. The accused and
her colleagues had information that suspected poachers had been sited along the Zambezi river.
They were armed with AK 47 assault rifles and were considered dangerous. The information
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Judgment No. HB 65/15
Case No. HC (CRB) 30/15
Xref No. Victoria Falls CR 150/12/07
availed to the accused was that the poachers were about to cross the border into neighbouring
Zambia. Accused believed that it was critical to go after these poachers. There was no radio or
signal communication between the accused and the other group of rangers operating in the same
area. On the fateful day the two rangers Mgcini Mlilo and Bhekhinkosi Phuthi were deployed
into the area were the poachers were suspected to have established a camp. They observed the
deceased who was doning civilian clothes.
He was carrying an AK 47 Rifle and was
approaching the Zambezi River. It was against the National Parks Operating Manuals for game
ranchers to put on civilian clothes whenever on duty. Section 2.18 of the Parks and Wildlife
Management Authority (Conservations Operations Manual), 2006 stipulates that:
“The Rangers should wear a uniform while on patrol. No civilian clothes are to be worn
by a ranger. No civilian clothes are to be carried on patrol.”
The deceased was mistaken to be a poacher. The two rangers opened fire at the deceased,
who suffered multiple gun-shot wounds. He died instantly. The court took into account the
perculiar surrounding circumstances of the case and in particular that the accused believed she
was compelled by the call of duty to aggressively pursue the poachers. The court always takes
into consideration the delays in the finalization of the case. The delay in this matter was
primarily not caused by the accused. It was brought to the attention of the court that initially the
state charged Mgcini Mlilo and Bhekinkosi Puthi with murder, but an opinion was prepared
indicating that charges were to be laid against accused instead. In 2010, charges were formally
preferred against the accused. There is no proper explanation for the delay in bringing the matter
to court. There is no suggestion or evidence that accused played a part in the delay in the
prosecution of the matter.
It is my view that a custodial sentence is not appropriate. Whilst the courts must always
uphold the sanctity of human life, the court must be alive to all the circumstances of each case,
including the personal circumstances of the accused, the circumstances surrounding the
commission of the offence, and in the instant case the inordinate delay of 8 years between the
commission of the offence and the finalization of the case. When all the factors are taken into
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Judgment No. HB 65/15
Case No. HC (CRB) 30/15
Xref No. Victoria Falls CR 150/12/07
cumulatively, the justice of the case demands that the sentence be fair to the offender. A balance
must be struck between the interests of justice and those of the accused person.
The accused is accordingly sentenced as follows:
Accused is to pay a fine of $300-00, in default of payment 3 months imprisonment. In addition 3
years imprisonment is wholly suspended for 5 years on condition accused does not within that
period commit an offence involving the use of firearms and for which she is sentenced to a term
of imprisonment without the option of a fine.
National Prosecuting Authority, the state’s legal practitioners
Marondedze, Mukuku and Company, the accused’s legal practitioners