1
Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
LEVISON MHOSVA
and
TAZVITYA MUDZINGWA
and
LUCKSON KWANGWARI
versus
THE STATE
HIGH COURT OF ZIMBABWE
KAMOCHA AND MOYO JJ
BULAWAYO 19 JANUARY AND 19 MARCH 2015
Criminal Appeal
Mr N. Mashayamombe for the appellants
Mr T. Makoni for the respondent
MOYO J:
The second appellant is the one who is properly before court in this matter.
The rest of the appellants are out of court as the notice of appeal filed of record only relates to
the second appellant.
The second appellant was charged and convicted of extortion as defined in section 134
(1) (a) of Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations leading
to the conviction of the second appellant stemmed from the fact that the body of the deceased
Senzeni Mhosva (appellant’s relative) had been deposited at Chigombe homestead. The body
was deposited as a means to compel the Chigombes to pay damages prior to burial as a condition
for her burial. He was sentenced to $400/3 months imprisonment. In addition the accused
persons were ordered to return the three beasts, goats and cash to the Chigombe family.
Dissatisfied with both conviction and sentence second appellant approached this court. The sum
total of the grounds raised in the notice of appeal were that the learned magistrate erred in
convicting the second appellant as no evidence linked him to the commission of the offence.
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Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
On sentence second appellant averred that the sentence was excessive in the
circumstances.
Professor G Feltoe in his Commentary on the Criminal Law (Codification and Reform)
Act, 2004, he states as follows with regard to the offence of extortion as defined in section 134
(2) of the code,
“Where for the purpose of inducing or compelling the payment of any money or property
as damages, or as marriage compensation in respect of a deceased person, X leaves or
deposits the deceased person’s body on any land or premises occupied by another person,
or hinders or prevents the burial of the deceased person’s body, he or she shall be guilty
of extortion or, if he or she failed to induce or compel the payment of any money or
property, attempted extortion.” (emphasis is mine).
It is clear from this phrase that the offence is not only committed upon leaving or
depositing the body, but the offence is also committed where an accused prevents or hinders the
burial of the deceased prior to certain conditions being met.
In the case of S v Ncube 1993 (1) ZLR 286 (SC), a member of the appellants’ family was
killed during an altercation with a member of another family. The appellants took the body of
the deceased to the home of the other family, threatening that if agreement for compensation for
the death was not reached the body would be left there.
compensation.
The other family then paid
The appellants were convicted of extortion. The appeal against conviction was
dismissed. The Supreme Court ruled that what the applicants had done was to unlawfully subject
the complainant to pressure that induced them to submit to the taking from them of an advantage
in the form of compensation. This constituted extortion even if the compensation was made
under customary law.
It is important to note that at the time the Ncube case was decided in 1993, the legislature
had not yet expressly provided for extortion in relation to matters regarding the dumping of
bodies prior to burial in a bid to derive compensation from such conduct.
The legislature subsequently crafted section 134 (2) of the Code which in my view is now
specific as to the exact conduct that qualifies as extortion in such instances at law.
This offence according to Feltoes’ Guide to Criminal Law in Zimbabwe 2005 edition at
page 82, has the following essential elements:
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Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
1)
X must intend his words, express or implied, to operate as threat or pressure
2)
He must intend the pressure to induce the complainant to submit and to hand over the
advantage, and
3)
He must know that he is using illegitimate or improper pressure, e.g knows money not
due or knows demanding money under guise of authority to extract when he knows he
has no such authority or obtains what he believes is due to him by use of illegitimate
pressure (emphasis is mine).
In the facts before us, the deceased who is a relative of the second appellant died and at
the time of her death she was with the appellants’ side of the family. She was nonetheless
married to the complainant’s side of the family during her lifetime.
Upon her death, the
appellant’s side of the family took her body and ferried it to the complainant’s side of the family
and left it there.
Aynos Chigombe was the first to testify and he said that he had been phoned whilst he
was in Masvingo and he was told that “a corpse had been left at our homestead” (my emphasis).
He then instructed the people to inform the police so that the corpse would be taken to a
mortuary (obviously the police were involved because the situation obtaining was abnormal). He
also told the court that they later went to their in-laws accompanied by three police officers, they
talked and agreed. They asked what should happen and they (in-laws) said they needed five
beasts and $500-00 in order to bury the deceased. (my emphasis).
He said they asked to go back to their elders to consult them on whether what the in-laws
needed could be found.
(This shows that they were not even ready with the form of
compensation that was needed).
They then gathered the beasts from different relatives who chipped in with different
things i.e. in the form of beasts and money. He said that the contributions were to pave way for
the burial (my emphasis). They did not make a report to the police but were later informed that
the deceased’s relatives had been arrested as the agreement the parties had reached that burial
would not take place before the beasts arrived was an offence. He said that the deceased’s body
had been left by a kombi and another black car, but he did not know who exactly left the corpse.
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Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
He then said that “We did not volunteer to pay because we had nothing we all wanted to
please our in-laws with the things we did not have.” (my emphasis)
The second appellant in his cross-examination of this witness asked if whether the
witness came with the police, they were pressurised or ill-treated to which the witness replied in
the negative. The cross- examination of this witness by second applicant shows that he was part
and parcel of the crew that discussed the issue of payment prior to the deceased being buried as
he asked such questions as:
Q:
Does that not show that we were understanding each other?
Q:
Did you not request us to bring our daughter?
The second state witness, Mukungunugwa Esau, told the court that accused two who is
the appellant, was the spokesperson for the group and that they had said they wanted to see
payment first before burial. (my emphasis) The prosecutor in examination in chief asked him
the following question.
Q:
What were the consequences if you paid nothing?
A:
The deceased was not going to be buried.
This witness further told the court that:
“We did not voluntarily pay them. If that was the case the deceased should have been
buried on a Wednesday.”
Accused two (who is the second appellant in cross-examination of this witness asked the
following question:
Q:
Is it correct that we forced you to pay.
A:
Yes. This is because you gave a condition that we have to pay before burial takes place.”
Samuel Munyuki told the court that accused two (who is second appellant in this case)
came with a commuter omnibus and another black car, they were carrying the deceased. He
further continued that the accused persons had a group of about fifteen with them and that four
people carried the corpse and left it on the passage, covered with a metal sheet. He also said that
they then came to his homestead carrying an infant that was left behind by the deceased and that
the three accused persons were part of this group.
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Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
Under cross-examination by second accused person (who is the second appellant) the
witness was adamant that he had seen the second appellant and that in fact he knew him well and
that he is a police officer who he came to know when he was staying at Ross Camp in Bulawayo.
He also confirmed that they had met before at Madamombe Township. He confirmed that he
saw the three dumping the corpse (including the second appellant).
Gracious Hwera was the next state witness and she told the court that she saw accused
one and two ferrying the corpse from the kombi. She told the court that the small vehicle was
being driven by accused two who is the second appellant.
Nothing much turned on the cross-examination of this witness by the second appellant.
Although Onias Machida, the next state witness seemed to be hostile he nonetheless
confirmed that the beasts arrived before the corpse and also that the deceased’s body had gone
bad. Joshua Chigova another hostile witness told the court that the burial occurred at 11pm.
From the aforestated contents of the court record, it is clear that deceased’s body was taken to the
Chigombes and left there. It is also clear that payment was a condition for the burial to take
place, causing the Chigombes to run around and put together from different relatives beasts and
some money so as to please their in-laws. It is also clear that the second appellant was part and
parcel of this whole transaction and that he was present at all material times. It is also evident
that he championed the negotiations that were held to the effect that payment should be made
upfront prior to burial.
In our view the essential elements of the offence of extortion as defined in section 134 (2)
of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were satisfied by the facts of
this case as against second appellant beyond any reasonable doubt. We say so because section
134 (2) gives two series of conduct that constitute extortion, its either the accused deposits a
corpse in premises occupied by another, OR hinders OR prevents the burial of the deceased
person’s body so as to induce payment.
The action of depositing the corpse to induce payment prior to burial is in itself extortion.
Also, the action of hindering burial so as to induce payment is also extortion.
Also, the action of preventing burial so as to induce payment is also extortion. Not only
did the appellant partake in the deposit of the corpse as per the state witnesses’ testimony but he
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Judgment No. HB 52/15
Case No. HCA 172/14
Xref CRB No. CH 380-2/13
also hindered or prevented burial prior to payment as he clearly was heading the delegation that
did the payment negotiations prior to burial. Aynos Chigombe and Esau Mukungunugwa told
the court clearly that they did not pay voluntarily and that they did not even have the beasts and
cash demanded, but that they had to pay to pave way for the burial. There is no volition here,
whatever “agreement” was reached under such circumstances is no agreement at all. The
Chigombes had a corpse dumped at their homestead, they had to comply with the conditions that
were set by the Mhosvas prior to the burial, what choice did they have? What freedom did they
have? None. It is our finding that second appellant and others by conduct did cause the
Chigombes to comply with their demands through pressure. Pressure can be by conduct. The
conduct of dumping the corpse in itself would pressurize Chigombes into action. The condition
that payment had to be made prior to burial, did extent pressure on the Chigombes. It is
accordingly our view that all the essential elements of the offence of extortion as defined in
section 134 (2) of the Code were met by the evidence on record even as against second appellant.
It is for these reasons that we did not accept the concessions made by the state counsel as
we were of the view that they were not properly made. The sentence given does not warrant any
intervention by this court.
We accordingly dismiss the appeal in its entirety.
Kamocha J, agrees………………………………………..
Mashayamombe and Company, 2nd appellant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners