Full verdict by magistrate in Mujuru inquest

By Nehanda Radio On Mar 29, 2012 386

By Walter Chikwanha (Provincial Magistrate)

Background

The factual background leading to the death of the Retired General is as follows; On the 15th of August 2011, the deceased left his Chisipite home in the afternoon, alone driving his white Double Cab Isuzu KB250 registration number ABT 0266, going to his farm – Ruzambo Farm in Beatrice area.

Presiding Officer in the Mujuru Inquest, Provincial Magistrate Walter Chikwanha entering Harare Magistrates Court

Ordinarily the deceased was to be driven by his personal driver Enoch Talapenzi, but on this day he went alone because he sent Talapenzi to Mr Savanhu’s farm to collect a ridger which was later taken to the farm.

On his way to the farm the deceased passed through Beatrice Motel where he drank four (4) tots of Johnnie Walker Black Label Old Scotch whisky mixed with soda water. At the motel the deceased was in company of various and regular patrons.

The deceased later left the motel alone, and arrived at this farm at around 2000 hours. Upon arrival at the farm he drove though the first security gate that was manned by a Security Guard called Clemence Runhare and he also drove through the second security gate that is manned by officers from Zimbabwe Republic Police, V.I.P . Protection Unit.

This second gate is the farmhouse gate that leads to Ruzambo Farm house where the decease used to reside whilst at the farm. He drove past the gate, after briefly conversing with one of the Police Officers and went to the farmhouse.

It is pertinent to highlight that during that time from around 1701 hours there was no electricity around the Beatrice area, including at Ruzambo Farm, due to Zesa load shedding. Electricity was only at 2054 hours.

After spending about five (5) minutes at the farmhouse, in the yard, the deceased drove out of the first gate guarded by the Police Officers and told them that he was going to get the farmhouse keys from one Rosemary Short his maid, who resided at the farm compound which is situated about three (3) kilometer’s from the farmhouse.

After leaving the first gate, in order to access the farm compound the deceased had to pass through another security gate, which is situated at the eastern direction of the farm and which on the day guarded by a security guard called Samuel Lewis. He passed through this gate and went to Rosemary Short’s dwellings at the farm compound.

The deceased met Rosemary Short and from whom he requested one (1) key that opens the kitchen door of the farm house. He was given the key by Rosemary, after having explained to her that he had left his in Harare and he then drove back to the farmhouse.

On the way to the farmhouse, the decease passed though Ruzambo Shop complex gate which was manned by one Ernest Nyamanja, the eastern gate which was manned by Samuel Lewis and the inner farm house gate which was manned by the three Police Officers who are namely Augustinos Chinyoka, Obert Mark and Lazarous Handikatari, the three are all Constables the Zimbabwe Republic Police.

The deceased parked his motor vehicle in the farmhouse yard and retired to bed. He never came out of the farmhouse or yard again.

On the morning of the 16 August 2011 at around 0140 hours, one of the Police Offices, Constable Chinyoka who was on duty that time, noticed smoke coming out through the of the farmhouse. He went to the house to investigate and he discovered that the farmhouse was on fire.

He immediately alert his colleagues who were asleep and they together with other farm laborers, whom they had awaken and called, a battled to fight the fire in order to put out and at the same time make efforts to locate the deceased.

The house was engulfed by fire which was so intense to the extent that at one time the heat in and around the house reached 530 degrees. They also informed Beatrice Police Station who in turn summoned the Harare Fire Bridge and Zesa to the farmhouse to attend to the fire.

The body of the deceased was only located after 0345 hours as it was still burning in the mini lounge of the farmhouse. The body was later conveyed to One (1) Commando Barracks Mortuary where it was certified dead by Doctor Annamore Jamu and a postmortem was carried out by Br Gabriel Gouzalez, a Forensic Pathologist.

These are the circumstances surrounding the death of the deceased, which will allow now be looked at in detail in an endeavor to comply with the provisions and requirements of the law, that is the Inquest Act, Chapter 7: 07 together with the regulations.

THE LAW

This inquiry was done in the terms of the provisions of the Inquest Act, of which Section 6(1) (b) provides as follows:

(1) Upon receiving the report mentioned in Section five, the Magistrate may

(a)…………………..

(b) If in his opinion the circumstances of the case require it, hold an inquest for the purpose of ascertaining the cause of the death or refer the report to such other Magistrate as the Attorney General may direct in order that such an inquest may be held”.

Section twelve (12) of the same Act provides as follows:

“ The Minister responsible for Justice, after consultation with the Chief Justice, may make rules for regulating the practice and procedure at or in connection with inquests”.

These rules were in deed made by the Minister and are provided for in Statutory Instrument Number 129 of 1998 and are referred to as:

“ Inquests Rules 1998”

Rule 6 (a) and (b) of these rules is pertinent and it provides as follows:

“The proceedings and evidence at an inquest shall be directed solely to ascertaining.

(a) Who the decease was?

(b) How, when and when the deceased came to his death?

Rule 7 goes further to provide limitations on what the court should do, as follows:

“The Magistrate shall not express any opinion or any matter other than those mentioned in rule 6”. A lot of evidence was adduced during the hearing, some of which had nothing to do with the four issues stated in the rules. The court will not comment on such evidence, as it is not relevant and also because of the restrictions clearly stated in rule (7) of the rules.

The provisions of the law as stated above are the ones that will guide the court in the findings that the court will make. The purpose of the inquest was as provided for the section 6 (1) (b) of the Inquest Act, that is

“ ascertaining the cause of death the court is required to find out as to who the deceased was, how, when where the decease came to his death” as provided for by rule 6 (a) and (b) inquest rules.

I will now deal with the issues as highlighted in the rules.

(A): WHO THE DECEASED WAS

Evidence was led in court that as people who were at he scene were battling to put the fire out, they were also looking for the deceased who they could not locate. The three Police Officers who were guarding the farm house and who first discovered the fire informed the court that as they were putting out the fire with others they were making efforts to try and locate the deceased.

They believed that the deceased was in the house the last time they had seen him was when he passed the gate entering the yard into the farmhouse. When he was coming from collecting keys to the farmhouse from Rosemary Short, he had told them that he was going to retire for the night and never came out of the house or from the yard thereafter.

Rosemary Short who is the maid of the deceased and one of the last people to talk to the deceased told the court that after she was told about the fire, her first question to the Police Officers was whether or not they had located the deceased. When she herself reached the farmhouse, her pre- occupation was to look for the decease.

This was because the deceased had come to her to collect keys to the farmhouse and the deceased had told her that he was going to entire to bed at the farmhouse. The deceased had even intimated to her that he might even consider to sleep in his motor vehicle that night and to her this was neither strange nor surprising as he at one time or another slept in his vehicle.

When Rosemary arrived at the house, therefore, she was certain that if the Police and Security Guards had not seen the deceased leaving the premises for the second time after he had collected house keys from her then the deceased was in the house and it was critical that they looked for him. Even the window, the Vice President after being informed of the fire, she spoke to amongst other people, Albert Alufandika the gardener and Rosemary Short, over cellphone and urgent them to locate the deceased.

Upon his arrival at the scene besides coordinating efforts to put out fire, Inspector Dube, the Officer In Charge of Beatrice Police Station exerted efforts and directed people to pip through the windows so as to try and locate the deceased. All this occurred because as far as everyone was concerned at the time the fire started, the deceased was in the house.

After hours of battling with the fire when the fire had somehow died down but not completely, a body which was burning was discovered along the passage leading into the mini lounge from the main bedroom.

This body was described by witnesses like Inspector Dube, Constable Handikatani and his colleagues, Alufandika the gardener, Rosemary Short, Investigating Officer Chief Superintendent Makedenga, experts like Police Forensic Director Mutandiro and Forensic Pathologist Dr Gabriel Gonzalez and others, as a charred body that had been extensively burnt beyond recognition. It was therefore necessary for proper identity to be done since the body had been burnt beyond recognition.

From the evidence that was adduced the court made the following observations in regards to the identity if the deceased. There was no direct evidence of the fact that the body, which was discovered in the house, is that of the Retired General Solomon Mujuru. The body was burnt beyond recognition, hence there was no one who could positively assert and identify the body as that of the Retired General. There was, however, the use of circumstantial and scientific evidence to identify the body as that of the Retired General.

(1): Circumstantial evidence

As already alluded elsewhere above, the deceased was seen by witness leaving his Chisipite residence alone. He arrived at Beatrice Motel alone and left the Motel alone. This was stated in court by the bar lady of Beatrice Motel, namely Portia Kamvura and patrons at the Motel like Blessing Madzimure, Tongai Chimuka and Douglas Nyakanga.

When he left the Motel he was accompanied to his vehicle by Portia, Blessing and Douglas and they saw him driving off alone. The Retired General also arrived at the farm alone as was stated by Security Guard Samuel Lewis and the Police Officers, Constables Chinyoka, Mark and Handikatari.

I am aware there is evidence of one witness Clemence Runhare who stated that he was in the company of someone when he arrived at the gate that he was manning. I will be commenting on Mr Runhare’s observations in detail later.

The Retired General was also seen by Earnest Nyamanja another Security Guard and Rosemary Short alone. He conversed with Rosemary and he never intimidated that he was in the company of someone. The perception that the court got from the evidence adduced is that the relationship between the deceased and Rosemary was such that is the deceased was in the company of someone, he would have told Rosemary.

Clemence Runhare is the only witness who stated that when he saw the Retired General he was in company of someone else whom he identified as his driver Talapenzi. The court has reservations in the observations made by Mr Runhare on this day.

This is so because of the following reasons:

Firstly he identified that person who was with the General as Mr Talapenzi, his personal driver, but it is common cause that Mr Talapenzi was at Chisipite at that relevant time. He was definitely not in the company of the Retired General as he himself confirmed that and he is the one who received a telephone call from Rosemary about the fire whilst he was at Chisipite. This Clearly shows that Mr Runhare’s observations in the respect is totally faulty. Mr Talapanzi is the one who also drove the Honorable Vice President to the Farm on the farm on the morning of the 16th, after hearing the news of the fire.

Secondly, it has been accepted from evidence that there was no electricity at the farm because of load shedding by Zesa and the witness himself admitted that when the General arrived it was dark, there was no sources of lighting, the General did not light the interior of his motor vehicle and he was standing at a distance of about two metres from the General’s motor vehicle, surely for him to have made sure observations in the circumstances as described above, is in the court’s view not possible.

The cumulative effect of these factors, that it was at night, there was no electricity, the interior of the vehicle was not lighted, there was a considerable distance from where the witness was standing and the driver’s door let alone the passenger side of the vehicle and that the deceased spent very little time at the gate, are such that they effected the accuracy of the witness’s observations.

No wonder why he failed to see a suit that we hanged in the vehicle and he identified this so-called person as Talapenzi when evidence is clear that Talapenzi has been left at Chisipite by the deceased.

Thirdly, as already alluded to above evidence has been led that there was a suit that was hanged inside the deceased’s motor vehicle. Constable Mark told the court that when the deceased arrived at the gate, he noticed that there was a jacket that was hanged inside the motor vehicle.

Rosemary Short also told the court that besides the groceries, this jacket was one of the items she removed from the motor vehicle of the deceased on the morning of the 16th after the fire. In its analyses of the evidence it is further the court’s finding that in view of the darkness, and the other factors that affected Mr Runhare’s observations as described in (two) above, the witness might have possibly mistaken the hanged jacket which was in the vehicle to be a human being.

Fourthly all the witness who interacted with the deceased from the time he left his Chisipite house, to the time he went to Beatrice Motel and later ended up at the farm, insisted that the deceased was travelling alone. Even the other Security Guards whom he saw at the eastern gate (Samuel Lewis) and the other one who guards the gate leading to the farm shop (Earnest Nyamanja) both also saw the deceased alone.

It therefore boggles the mind how Mr Runhare and him alone observed that the deceased was in the company of the someone. That obviously makes the court conclude that it is either the witness is not telling the truth, or his memory is failing him or his observations were faulty for he reasons illustrated in the tree above.

For the four reasons I had given above I am not convinced at all that the observations made by Mr Runhare on this day were correct. His observations and perceptions of events on that day are faulty, hence the court will not accept them. Even if, however, the court was to accept that in deed Mr Runhare saw the deceased in the company of someone, that person did not enter the farmhouse. There is a distance of about three hundred metres (300) between Mr Runhare’s outer gate and the farmhouse gate guarded by the Police.

When the deceased reached the farmhouse gate guarded by the Police Officers, he stopped his motor vehicle, he lighted the interior of his motor vehicle and according to Constable Mark, he even conversed with the Police Officers asking them if everything was well at the farm. The Police Officers did not see anyone in the motor vehicle, the deceased was alone.

What they saw was a jacket, which was hanged in the motor vehicle. These officers had clearer and better observations and perception of the events than Mr Runhare. This is because the deceased lighted the interior of his vehicle hence they were able to see clearly what and who was in the vehicle, the deceased spent more time in their sight between 10 and 30 seconds) unlike with Mr Runhare as they conversed with him and they were three of them who all agreed that the deceased was alone. Constable Mark who was closer to the deceased was standing a distance about 30 cm from the decease’s door, a distance which is much closer as compared to Runhare who made his observations at a distance of one to two metres.

The court is therefore convinced that at the relevant time when the deceased entered the farmhouse yard for the first time arriving from the Motel and for the second time coming from Rosemary’s house, he was alone. Even if one is to argue that Mr Runhare saw him with someone, that is neither here nor there because when he entered the farmhouse he was alone, he was not in the company of anyone. He would not have even told Rosemary (the maid) about the possibility of him sleeping in his motor vehicle on that day if he was in the company of another person.

One would note that the court has dedicated more time on this aspect because it is important and it has a bearing on the identity of the burnt body that was found in the house. This is because if there were two people who entered the farmhouse that day, then it will obviously be difficult it not impossible to conclude that the body that was burnt beyond recognition is that of the deceased.

The farmhouse is guarded twenty four hours a day by trained Police Officers. There were three Police Officers who would be on the twelve (12) hours duty. At the relevant time Constable Chinyoka was on duty whilst Constables Mark and Handikarari were asleep as they were not on duty. Unfortunate insinuations were made against the Police Officers that they were asleep on duty, which is not true.

The two who were asleep were not on duty at all. Constable Chinyoka is the one who was on duty, no wonder why he is the one who discovered the fire at 0140 hours and later alerted his colleagues. Constable Chinyoka stated in his evidence that the perimeter fence was well secured and no one entered the farmhouse or farmhouse yard besides the deceased.

In light of the above observations the court can safely make a finding that the only person who entered the farmhouse at the relevant time and who was in the house at the time of the fire was the Retired General, the deceased. This explains why when the fire was discovered everyone involved made frantic efforts to locate the Retired General. It is because they knew that he had entered the farmhouse on returning from Rosemary Short’s house and he had entered alone.

From the evidence adduced the court noted that this is the basis upon which the Police concluded that the charred body which was burnt beyond recognition and which was found in the house belonged to the Retired General Solomon Mujuru.

The use of circumstantial evidence is a way of reasoning which draws probable conclusions from facts that are known. It is a process of inferential reasoning which is based on facts that would have been proved in court and such inference must be reasonable and in criminal law, the requirements go further to state that it must be the only reasonable inference.

What is before the court is that the Retired General had been seen travelling alone when he left Chisipite. He arrived alone at Beatrice Motel. He left Beatrice Motel alone heading for the farm. The last people to see him when he retired to bed were the Police Officers who guard his premises and who confirmed that he was alone when he retired to bed.

Noone entered his premises, after he retired to bed. He is the only person who was inside the farmhouse at the time that the fire started. All these facts point in a particular direction and all these facts are in harmony with the hypothesis being analysed that the body that had been burnt beyond recognition is that of Retired General Solomon Mujuru.

This is an inference which is based on facts adduced in court and one which is reasonable in the circumstances. The conclusion therefore made by the Police that the body belonged to that of the Retired General was reasonable, as this is the only conclusion that one could arrive at in the circumstances.

(ii) Scientific Evidence

The Police also confirmed the identify of the deceased through forensic evidence by doing a DNA analysis. DNA evidence is at times referred to as an example of circumstantial evidence but there are others who argue that it is a form of direct scientific evidence. This, however, is not relevant for purposes of this ruling.

Evidence was adduced in court from the Police in the form of the Investigating Officer Makedenge and Police Forensic Director Mutandiro that a sample of flesh was removed from the body of the deceased for purposes of extracting a DNA sample. When this sample of flesh was removed from the deceased’s body one of the deceased’s relatives, his nephew called Mudiwa Mundawarara was present. A comparison blood sample was obtained from Kumbirai Rungano Mujuru, the female child of the deceased. Again Mr Mundawarara was present when this was done.

i) The samples were sent for DNA analysis in the Biology Section at the Forensic Science Laboratory of South Africa Police Services in Pretoria. The DNA analysis was done by a Warrant Officer in the South African Police Service called Dumisani Porcia Chauke. She concluded after the analysis, that the probability of the person discovered burnt beyond recognition of being the father of Kumbirai Rungano Mujuru is 99.90 percent.

This according to her is a strong statistical calculation of the evidence. This therefore confirms that the body discovered in the house is that of the Retired General Solomon Mujuru. Refusing to accept this evidence would lead to the improbable coincidence that the person who was burnt in the house is Kumbirai Mujuru’s father who was not General Mujuru.

The court, however, noted that the DNA analysis was done well after the burial of the deceased. This in the court’s view was inappropriate on the part of the Police. I do appreciate that there was strong circumstantial evidence, which I have already analysed above, which pointed to the identity of the body as that of the Retired General Mujuru.

If the Police felt that they needed even stronger evidence regarding the identity of the body in the form of DNA analysis, then it made no sense for them to authorise burial before that issue was cleared. The Director of Forensic Mr Mutandiro admitted in court that it was an oversight on their part and fortunately the DNA results were consistent with the factual conclusions that they had already made.

In conclusion therefore having analysed the circumstantial evidence and the forensic evidence as stated above, the court can safely conclude in answering the first question of this inquest as to “who the deceased was,” that the charred body that was discovered in the farm house, is that of the Retired General Solomon Mujuru.

(B) WHEN THE DECEASED CAME TO HIS DEATH

The next issue that requires to be ascertained by this court is as to when the deceased came to his death.

The evidence before the court is that the now deceased arrived at the farm on the night of 15 August 2011, around 2000 hours. According to the Police Officers who were manning the gate, namely Constables Mark and Handikatari, after the deceased had entered the farmhouse yard, he stayed there for five minutes and later came out.

When he arrived at the gate he told them that he was going to Rosemary Short’s house to collect keys to the farmhouse. He late came back after about fifteen (15) minutes, the gate was opened by Constable Chinyoka whom he told that he was now going to retire to bed. According to Rosemary Short, the Retired General Mujuru came to her house around 2000 hours and requested her to give him keys to the farmhouse because he had forgotten his in Harare.

It is also around this time that the Security Guards who are namely Samuel Lewis (guarding the eastern gate that leads to the farm compound) and Ernest Nyamanja (guarding the gate that leads into the farm shop), also saw Retired General Mujuru.

The sequence of events in terms of time on the movement of deceased are as follows, the deceased first entered the farmhouse around 2000 hours, he went out after five (5) minutes (around 2005 hours) going to collect the farm house keys from Rosemary Short. He came back and re-entered the farmhouse after fifteen (15) minutes (around 202 hours) whereupon he informed Constable Chinyoka who opened the gate for him that he was now retiring for the night. This was the last time the deceased was seen.

The last people to see the now deceased, therefore are the Police Officers who were manning the farmhouse gate. They last saw him on the night of 15 August 2011 at around 2020 hours.

The fire was first discovered by Constable Chinyoka on morning of the 16th August 2011 at around 0140 hours.

It is not known at that time whether the Retired General Mujuru had died or not, because no such evidence was brought before the court. It is also not known from the time the fire was first discovered around 0140 hours up to the time the charred body was discovered around 0345 hours, whether he was dead or alive because, again, no such evidence was brought before the court.

What is, however, clear to the court from the analysis of evidence before it, is that as at around 2020 hours on 15 August 2011, the Retired General Mujuru was alive and as at 03454 hours on the morning of 16 August 2011 he was dead.

The court can therefore, safely conclude that the Retired General Mujuru died between the hours of 2020 hours on the night of 15 August 2011 and 0345 hours on the morning of 16 August 2011.

(C) WHERE THE DECEASED CAME TO HIS DEATH

The law also requires the court to make as to where the deceased met his death. This obviously refers to the place and or position where the deceased met his death.

This issue has already been exhaustively discussed elsewhere in this ruling. The deceased entered the farmhouse at around 2020 hours on the night of 15 August 2011. His burnt and charred body was later discovered in the farmhouse. The position where the body was discovered in the house was clearly marked in exhibit three (3), that is the sketch plan, in the passage of a room called the mini lounge. This mini lounge is the room next to the main bedroom, where the deceased is believed to have gone to sleep.

The answer therefore to the third issue the court is required to ascertain on, is that the deceased met his death inside the farmhouse, on the passage of the mini-lounge at Ruzambo Farm in the Beatrice area.

(D) HOW THE DECEASED MET HIS DEATH

The facts that I have alluded to elsewhere in the ruling is that after the Retired General Mujuru entered the farm house purportedly to retire for the night as stated by Constable Chinyoka, he never came out alive.

Constable Chinyoka is the Police Officer who was on duty. During the course of the night he would make regular patrols in an around the farmhouse yard. According to his evidence, the purpose of these patrols was to protect the person of the deceased and his property and further to ensure that there were no intruders.

After the deceased had entered the yard to retire for the night as stated above, the next event that occurred is that Constable Chinyoka when carrying out one of his regular patrols observed that the farmhouse was on fire. It is after that fire that the deceased’s charred body was discovered, burnt beyond recognition.

In order to inquire and find out how the deceased died and how the fire started the court analysed the following forms of evidence,

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I) Evidence of witnesses who interacted and met the deceased just before he went to bed.

II) Investigations by the Police

III) Investigations by the Fire Brigade

IV) Investigations by the Police Forensic Unit

V) Investigations by the Zimbabwe Electricity Supply (ZESA) official

VI) Findings of the Doctor who conducted the postmortem

VII) Findings of the South African Forensic Scientists

The court will now analyse the nature of evidence of the group of witnesses stated above in an effort to ascertain what caused the death of the deceased.

i)The last witnesses to meet the deceased

The last witnesses to meet the deceased were as follows, Clemence Runhare (Security Guard), the three Constables Chinyoka, Mark and Handikatari, Samuel Lewis, Rosemary Short (the maid) and Ernest Nyamanja (the Shop Security Guard).

Mr Runhare first met the deceased the first time as he entered the farm arriving from Beatrice Motel. The court has already dealt at length with his evidence when he met the deceased at that time. What is pertinent is what transpired after the deceased had retired for the night.

He told the court that at around 0220 to 0225 hours in the morning as he was at his point of guard he head some noise which sounded like explosion of bullets. It is at that same time that he also met another guard who came to where he was and told him that had also heard some sounds. The court noted the confusion the witnesses had over.

At one time he changed and stated that the time he heard bullet explosions was around 1100 pm and the other time 1200 midnight. Everytime he was asked a question he would come out with a different time. He was generally not an impressive witness. He is also the same witness and the only one for that matter who claimed to have seen the General in the company of someone when he arrived at the firm.

What is pertinent about this witness’ evidence in relation to the cause of death are his assertions that he heard some noise which sounded like explosion of bullets. It is in the context that his evidence will be considered together of Samuel Lewis, the other security guard, who also told the court that he heard some sounds of something bursting and that made him to run to the point of guard where Runhare was situated. They heard the same sound together and they ran towards the farmhouse where they discovered that the house was on fire.

Even when it was put to him that in his statement he had written that he heard sounds of gun shots he refused to confirm that by keeping quite. The court is in fact more comfortable in accepting what he said in court because he is not the one who wrote his statement as he can neither write nor read.

Upon his arrival at the house, Runhare told the court he discovered that the sound which initially he had assumed to be of bullets explosion was in fact caused by asbestos sheets that were cracking and exploding. The basis of him to make such a conclusion was because that same sound he had heard whilst still at his point of guard at the gate, is the same sound that was being produced by the exploding asbestos sheets.

Samuel Lewis also told the court that when he arrived at the farm house in the company of Runhare he established that the bursting sound he had heard whilst at this point of guard was in fact caused by asbestos sheets that were cracking and bursting.

From the evidence of these two witnesses, it is clear that at no time did anyone of them hear sounds of gun shots because none of them ever said than in their evidence. The notion therefore that Runhare told the court that he heard sounds of gun shots is not true as it is at variance with the evidence contained in the record. What Runhare said he heard are bullet explosions and not gun shot. The sound of a bullet explosion is different to the sound of a gunshot, as was well explained by the Police ballistic expert, Assistant Inspector Mtizwa.

This distinction is critical because in house as illustrated by Assistant Inspector Mtizwa, they recovered about six (6) kgs of ammunition that had exploded. This ammunition had been caused to explode by the heat from the fire. Assistant Inspector Mtizwa was quite categoric that their tests had shown that none of the ammunition had been fired from a gun but all had exploded because of the heat. The evidence of Assistant Inspector Mtizwa is therefore consistence with that of Mr Runhare. It might be possibmatter who claimed to have seen the General in the company of someone when he arrived at the firm.

It is important at this juncture to point out that at no point in Runhare’s evidence did he state that he heard sounds of gun shots but instead he said he heard sounds of explosion of bullets. It is further important to clarify that at no point during his evidence did Samuel Lewis state that he heard sounds of gun shots but instead he indicated that he heard sounds of something bursting. Even when it was put to him that in his statement he had written that he heard sounds of gun shots he refused to confirm that by keeping quite. The court is in fact more comfortable in accepting what he said in court because he is not the one who wrote his statement as he can neither write nor read.

The evidence of Assistant Inspector Mtizwa is therefore consistence with that of Mr Runhare. It might be possible therefore that the explosion of bullets that Mr Runhare heard was coming from the ammunition which was in the house and which was exploding because of the heat or it was caused by the asbestos sheets which were cracking and exploding because of the fire. This is the same explanation given by Samuel Lewis.

The two witnesses were in agreement that they heard sounds whilst they were still at their points of guard and at the time they were now together, to Runhare it sounded like bullets explosion and to Lewis they were just bursts. The same witnesses were also in agreement that upon arriving at the house they observed that asbestos were cracking and bursting because of the heat.

The two’s evidence further agreed that the same sound they heard at their point of guards is the same sound that was being produced by the cracking and exploding asbestos. They agreed in their conclusion that the sound they had heard before whilst at their point of guards and at the time they were going to the house was in fact the sound of cracking and exploding asbestos.

In light of the analysis of evidence of the two witnesses I have made above, the court makes a finding of fact that the issue of gun shots sounds being heard by the two witnesses is not true. This is because the evidence adduced does not reflect that fact at all.

There is also the evidence of Rosemary Short in which reference is made to gunshots. It is important to highlight that when evidence was led from her by Mr Chimbari from the Attorney General’s office, she never talked about hearing sounds of gunshots. When questions were later put to her by the family lawyer Mr Kewada, she again never mentioned the issue of hearing sounds of gunshots.

I highlight these facts because Rosemary had a close relationship with the deceased, the nature of her evidence was so vivid and detailed such that she took a long time on the witness stand. One would therefore not have expected her to leave out such a relevant and important piece of evidence, if at all it existed.

It was only when she was questioned by Tendai Mundawarara, the deceased’s nephew that the issue of gun shots came into being. And her first response was that the only time she heard gunshots was sometime back, in June or July, prior to his day and she had inquired with the Police Officers, who told her that it is them who had fired the gun shots into the air in order to scare off would be intruders or at times they would explain that they would be killing snakes.

It was upon a lot of insistence and persistence by Mr Mundawarara for her to explain what she heard on the night of 15 August or morning of 16 August, that she told the court that there were sounds coming from the direction of the house that were akin to gun fire. She inquired from the Police Officer, Constable Mark who was present and he explained that the sound was caused by exploding asbestos.

Rosemary Short already new what the sound of gun fire was like because she heard it when Police fired in the air or when killing snakes prior to this day. Considering the relationship that she had with the deceased and the nature of her involvement in this case, if she had heard the same sounds, surely this should have been the first thing she would have told the Police but she did not. This should have been one of the first issues she would have told the court, again, she did not. It needed some persistent questioning for her to make reference to it.

The court therefore concludes that she acted in this way because, she was sure that the sound came from exploding asbestos, as she was told by Constable Mark. In any case this is the same exploding sound of asbestos that was referred to by Runhare and Lewis. No allegation was made against the Police that they were malicious or they were telling lies to mislead court.

The only allegations against them was that they were incompetent. The court therefore find no reason to doubt Constable Mark when he told Rosemary that the sound was caused by exploding asbestos, moreso, when it is the same sound that was also heard by other witnesses.

In this regard it is farfetched to conclude that Rosemary Short heard sounds of gunshots on the day in question.

FIRE BRIGADE REPORT

The Fire Brigade investigations and report were down by Clever Mafoti. When they arrived at the scene the fire had almost subsided, there were only some isolated pockets of fire left. They then, using water which was in the bawser at the farm, extinguished the fire. He told the court that they were no table to establish the cause of the fire because by the time they arrived most of the leads had been disturbed and interfered with by people who had been fighting the fire.

He, however, observed that there might be possibly two sources of fire (the points where the fire started) in the bedroom and in the main lounge. He explained that this could have been caused firstly by arsonist, secondly by a short circuit within the function of electricity power of thirdly by the pre-mixture and convergence of heat and dust in the ceiling which would have created a ball of fire that is then thrown to the other end of the house.

Evidence from the Fire Brigade expert was not of any assistance to the court as they were unable to establish the cause of fire. What, however, was noted by the court is that the Fire Brigade is heavily under-equipped and have no capacity at all to react to an emergency. They had no vehicles, the only vehicle they had had leakages such that if they had put water in its tanks, by the time they arrived all the water would have leaked out. It further took them more than thirty minutes to leave the station after receiving the report and more than one and half hours to arrive at the scene. Their attendance at the scene therefore became merely academic and cosmetic.

A Police Officer from Beatrice called Constable Garikayi had initially told the court that after the discovery of the dead body in the passage of the mini lounge, he noticed that he body was still burning and a blue flame was coming out. Asked to explain the cause of this bluish flame, Mr Mafoti told the court that, in a fire accident and if the temperatures reach above 500 degree as what happened in this case, what would happen first is that some fluids from the body will ooze out, thereafter fat will come out as well.

That will create what is called a triangle of combustion. This triangle consists of hot air combustible materials coming from the body and then heat. A combination of these three items would then cause a spontaneous ignition of fire with a blue flame. This explanation is consistent with what the Polio Forensic Scientist Mr Mutandiro told the court which was to the effect that one time the temperatures in the house reached 520 degrees celcious.

The witness further explained why people had to continue pouring buckets of water on the body but the fire would not be extinguished. He stated that water boils at 100 degrees celcious and the temperature in the room was way, above 100 degreed celcious. When water was poured, because of these very high temperatures, it vaporised, the hydrogen in the water would then explode and cause intense burning of flames. There was need therefore to continuously pour water so as to reduce the temperature, when this temperature falls down, the water would become effective and fire would be extinguished.

Mr. Mafoti is an experienced fire fighter with 27 years experience. He is well learned in this field with various courses to go along with. Whilst he was not of much value in telling the courts how the fire started, his expert knowledge assisted the court in his explanation of two very pertinent issues, firstly the bluish flame coming from the body and secondly as to why a lot of water was poured on the body but the fire would not be extinguished.

ZESA REPORT

The Zesa investigations were carried out by its Customer Service Officer for Beatrice Area called Douglas Nyakungu. After being told of the fire accident at the farm, he attended the scene at around 0730 hours.

In his investigations because of the extensive damages that had been caused by the heat, he could not establish whether or not an electrical fault had caused the fire.

POLICE INVESTIGATIONS

The evidence of Forensic Scientist Mr. Mutandiro dealt with the examinations he made when he reached the scene. He observed that the house had been extensively damaged by fire. He observed that the body was completely burnt beyond recognition and it was charred as well, with the feet and the right arm burnt out. He also observed that the carpet beneath the body was not burnt and he explained that this indicated that the body was protecting the carpet from the fire and also that the body had been on that position before the fire.

Mr. Mutandiro also collected debris from identifiable position in the house and pieces of burnt curtains which he packed and later sent for forensic examination in South Africa. The places where he picked the debris are the places he suspected to have been the seats or sources of fire (where the first started). The purpose of sending debris to South Africa was in order to determine as to what caused the fire.

They placed these exhibits in an exhibit plastic bag which was then packed in a container and later transmitted to South Africa.

It is pertinent to note that after examining the above stated exhibits, Officers from the South African Police Service, Forensic Science Unit could not determine the cause of the fire. It was the evidence of Warrant Officer Jack Maine that various reasons caused this result.

Firstly the method of packaging of the exhibits used by the Zimbabwean authorities was wrong and not in accordance with international standards. The exhibits were supposed to be packed in an oven packaging material or metal tin with no rust. The way the exhibits were packed exposed them to contamination.

Secondly the method of gathering the debris was also not good enough and was too subjective. Mr. Mutandiro had picked debris from the area he assumed were the sources of fire. If he made a mistake in choosing these areas and left out a relevant area, again it affected the results.

Warrant Officer Jack Maine told the court that there are specialised machines or even dogs that can be used to detect possible sources of fire. The court no doubt, considers his evidence highly including the decisions that he made on that day. But human errors are part of human life and should never be ruled out. Mr. Mutandiro is a highly qualified Forensic expert with more than 20 years experience.

Whilst the court has no reason at all to doubt the decision of Mr. Mutandiro on that day, it would have been more prudent and more perfect to have sought the South African expertise in determining the source of fire, so that debris could have been picked on the basis of the identification made by such expertise.

The effect of what transpired is that if the fire started at a place which Mr. Mutandiro failed to detect, then no debris from that place was taken. Because no debris from that place was taken South African examination could obviously not determine what caused the fire. The court appreciates the economic quagmire that this country has been exposed to for so many years and this has resulted in serious lack of resources in the majority of our public institutions and the Zimbabwe Republic Police has not been spared.

That is the reason why the communication radios of the three Constables who were guarding the farmhouse were not working. It is unfortunate and in deed unfair that the fact that the radio was malfunctioning was being blamed on the three Officers. That is also the reason why Beatrice Police had no motor vehicle at the station and had to borrow a vehicle from one of the local farmers. This is again why experts like Mr. Mutandiro did not have proper packaging material for exhibits and machines to use in their trade unlike their South African counterparts.

This in the court’s view cannot be blamed on the individuals like Inspector Dube, the three Constables who guarded the farmhouse or Director of Police Forensic Mr. Mutandiro. It is an institutional challenge that is far much bigger than what transpired.

It is rather worrying that a fire brigade takes more than thirty minutes to leave the station in order to go and attend a fire because they have no machinery, it is further surprising that the Fire Brigade takes more than an hour to reach a place that is hardly sixty kilometers away and it sounds unbelievable that the same Fire Brigade reaches the farm house without water because the only road worthy vehicle they had only carries four hundred litres of water and its leaking like at sieve to the extend that by the time they reach the house all the water would have been lost.

This is the court’s view should not be blamed on people like Mr Mafoti who try to do their best under very difficult conditions. It simply speaks volumes of the state in which our institutions are found in and it’s a cry for major and immediate interventions.

It was further the evidence of Mr Mutandiro that he observed that the fire was so intense to the extend that it caused metal bars to bent and windowpanes to crack and melt. He therefore concluded that at one time the temperatures reached 520 degrees Celsius. He described this fire as complex and one that could not be judged as ordinary.

By the end of their investigations both the Zimbabwean and the South African experts failed to determine the cause of the fire.

This is the same conclusion reached by the Officer In-charge of the scene and the Investigation Officer, Chief Superintendent Makedenge. Chief Superintendent Makedenge is the one who led the team of investigators. They interviewed all the witnesses, gathered all the exhibits and coordinated all the investigations but at the end he did not get any evidence that would show that there was foul play in the death of the now deceased. In fact in his own words he commented on this aspect as follows at page 557 to 558 of the record: –

“We got no any tangible evidence that indicated that foul play might be suspected. Noone ever came forward with any information that we were supposed to investigate as to whether there was any foul play and what we investigated there wasn’t, there were no indications of foul play. And with the report that I got from ZESA, the Fire Brigade, then Forensic Science there were no indications and the postmortem that was conducted by Doctor Gabriel Alivero.”

DR GABRIAL GONZALEZ (FORENSIC PATHOLOGIST)

Dr Gonzalez is the one who conducted the postmortem. He is a Cuban national whose English is not good, hence a Spanish Interpreter had to be hired when he gave evidence.

It was alleged that the Doctor is not registered to practice in Zimbabwe by the Medical and Dental Council of Zimbabwe, hence he was not qualified to practice in Zimbabwe, nothing was however shown to the court to show that the Doctor was not allowed to practice in Zimbabwe.

The court, however, takes judicial notice of the fact that the Zimbabwean Government entered into a government to government agreement with the Cuban government in which Cuba agreed to assist Zimbabwe by sending Cuban Doctors who would then work in our hospitals. This was cause by the shortage of Doctors in Zimbabwe and is the reason why in most Public Hospitals in Zimbabwe one would find these Cuban Doctors working in those hospitals.

This is also the same explanation that was given by Dr Gonzalez which was to the effect that he did not have a practicing certificate issued by the Dental and Health Professional Council but he was a member of the Cuba Medical Brigade and he was authorised to work in Zimbabwe through the Ministry of Health and based on the agreement between Zimbabwe and Cuba.

These are facts which are notorious, which the court accepted on the face of it. That obviously explains why the Police did not hesitate to give him such an important task of performing the postmortem of a person in the stature of the Retired General Mujuru. This is not surprising if one considers his qualifications and the fact that he has 29 years experience as a Doctor.

If therefore someone has doubts or is of the belief that Dr Gonzalez is not authorised to work in Zimbabwe, the court would obviously require information much more concrete than mere bald allegations. It would have been much more acceptable if those making these allegations would have produced proof in the form of a letter from the Ministry of Health and or Health Professional Council confirming that Dr Gonzalez was not authorised to work in Zimbabwe.

The court therefore accepted and did not see any reason to doubt the credentials of Dr Gonzalez, in the same way it did not have any reason to doubt the credentials of Dr Fusire who extracted blood from the deceased’s daughter.

Dr Gonzalez came out with the following findings after carrying out the postmortem:

i) That death was caused by open fire origin is unknown.

ii) That there was carbon in the trachea of the deceased, which is a vital sign of smoke inhalation.

He further explained in his evidence that the presence of carbon in the trachea area of the deceased was indicative of the fact that at one time the fire had started the deceased was alive because the deceased could only have inhaled smoke through breathing.

A lot of questions were put to the Doctor challenging the manner in which he conducted the postmortem but he adequately explained his actions. He agreed that an X-ray is normally taken at postmortem but he could not do so in this case because of the condition of the body, which was heavily charred. He further agreed that the body is normally cut open from top to bottom for purpose of examination.

But in this case he could not do so because the body had been destroyed by the fire, it was heavily charred with bones breaking.

He also agreed that ordinarily the head is opened in order to examine the brain but in this case it was not possible because the skull was heavily burnt and the brain was damaged by the fire, in fact there was no more brain to talk about. He further agreed to the suggestions that the organs are normally removed one by one for examination, but explained that this was one way of doing it, the other acceptable way was to do the examinations without necessarily removing the organs. In this case most of the organs, like kidney, bladder, prostate, spleen, pancreas and lungs were all absent as they had been burnt out by the fire. The liver and gall bladder were present but severely burnt and charred.

It was argued that the Doctor should have extracted blood from the body for tests but the Doctor explained that this was not possible because the body was charred and there was no longer blood in the body.

Finally the doctor carried out a thorough examination of the body and concluded that the body did not have any external or internal injuries caused by anything else other than the fire.

The family was assisted to put questions to the Doctor by a pathologist from South Africa called Doctor Perumel. The court noted that a lot of criticism was directed at the Doctor in the manner he carried out the postmortem but the court does not share this criticism. The criticism directed at the Doctor is what one would term as textbook criticism. The family lawyer was comparing what Doctor Gonzalez did to what is written in textbooks. But this is not the situation, which was prevailing on the ground. One would fail to understand how they expected Dr Gonzalez to extract blood from a heavily charred body which did not have blood.

Similarly it is difficult to comprehend how Dr Gonzalez was expected to remove organs like lungs, kidneys and others for examination when these organs were not there as they had been destroyed by heat or how they expected the Doctor to cut the head and examine the brain when the brain had been destroyed by fire. Yes that’s what the text books and the so called international standards required but the situation on the ground was different, this was a heavily charred body which had been destroyed by a fire of extra-ordinary magnitude.

In my analysis of the manner the doctor conducted the postmortem I am left in no doubt that all that what he did was the best in the circumstances. Even if one is to agree to a second postmortem as was suggested, I would wonder what value this would add because there is no blood to extract, there are no organs to examine and there is no brain to examine. No value at all will be derived from that. That is the reason I have already concluded that the criticism leveled at Dr Gonzalez is merely “text book criticism”, as the situation on the ground required some innovative approach.

In the circumstances, therefore, the court finds no reason at all to reject Dr Gonzalez’s findings. From all the evidence that I have analysed above it is clear that no witness was able to tell the court as to what caused the fire and no expert or scientist who carried out tests and examinations was also able to tell the court on what caused the fire. What the court was told and in-deed what the court agrees with is that this fire was out of the ordinary in view of how it started, the way it spread and the heat it generated. It was to some extend a strange fire indeed.

WHETHER OR NOT THERE WAS FOUL PLAY

From the evidence that was adduced no one was able to tell the court whether or not there was foul play that caused the death of the Retired General Mujuru. The Investigation Officer told the court that his conclusion was that there was no foul play. The Police Forensic Scientist Mr Mutandiro told the court that he could not tell whether or not there was foul play. In other words his investigations failed to reveal anything. The forensic scientist from South Africa Police Service also failed to come out with anything.

The court has taken note as already alluded to elsewhere in this document, that there are various factors that compromised investigations. Firstly the failure to adequately and properly cordon the areas of the fire (farm house) made it impossible for fire experts like Fire Brigade to properly examine the scene and investigate the cause of fire. As a result Fire Brigade were not able to determine the cause of the fire.

It has further been observed by the court that the way the forensic scientists in Zimbabwe gathered and packed the exhibits which were sent to South Africa was flawed. Errors could have been made in identifying areas where the debris were to be taken from the errors were certainly made in the manner the exhibits were packaged. All this could have compromised and in the end affected the results of the investigations.

The question which one would ask is whether it is necessary to recommend further investigations. In its view the court does not see the necessity and no value will be derived from that. The scene has already been tempered with and evidence is contaminated because it now more than six months after the death of the deceased.

I must further comment that this is a case in which there was and continues to be a lot of suspicion over the death of the now deceased. So many people and even relatives of the deceased believe that there is amiss in the death of the now deceased but from the forty one witnesses who testified no one was able to point to the court as to the basis of such suspicion and what it is that is amiss.

Even the relatives of the deceased were given an opportunity in addition to the family lawyer to question each and every witness who testified. This was done in order to bring out everything which they thought could have caused the death of the deceased but still nothing was specifically pointed to the court.

Suspicion was raised on the fact that the deceased did not have the farm house keys but had to borrow from the maid, Rosemary Short. But it came out clear from Rosemary’s evidence that she gave him one key only to the door which leads to into the farm house, the rest of the keys he had and these were recovered in the bedroom by the Police. He specifically told Rosemary that he had left his key in Harare.

With this explanation from the deceased to Rosemary and the fact that the rest of the keys were found in the house, the court would wonder where the hullabaloo over missing keys was coming. The only person who would know why he left the other key in Harare is the deceased. Besides that ,however, no one pointed to the court how the missing key could be linked to the death of the now deceased or to the cause of the fire.

The motor vehicle keys were missing and up to now they are yet to be recovered. The Investigating Officer confirmed this fact and further explained that they carried out thorough investigations but could not find the keys. This again is a cause of suspicion but again nothing specific was drawn to the attention of the court. The court is not even able to recommend further investigations in that regard firstly because the Police have thoroughly investigated that issue and secondly I do not see how this will assist in finding out how the fire started.

In the final analysis the court summarises its findings as follows: The name of the deceased is Retired General Solomon Tapfumaneyi Mujuru. This fact is clear from the factual evidence presented before the court and the DNA analysis done in South Africa. They all point to the same direction as regards to the identity of the deceased.

The court also concludes that the deceased met his death between the hours of 2020 on the night of 15 August 2011 and 0345 on the morning of 16 August 2011. This is because at around 2020 and 0345 hours that was the time his body was discovered inside the farmhouse. It is in this regard also that the court has concluded that the deceased met his death in the farmhouse. This is because that is where his body was discovered.

A postmortem was carried out by Dr Gonzalez who concluded that the cause of the death was carbonisation due to open fire. There is no other evidence before the court to show to the contrary and the court has no reason at all to doubt the findings of the Doctor. This is the basis upon which the court makes a conclusion that death was caused by carbonisation due to open fire. The Doctor even went further in his examination to find out whether there were some other injuries on the body of the deceased caused by something else other than those caused by fire and he did not find any.

The court analysed evidence of all the forty one witnesses to determine what caused the fire to start but could not get any answers. Experts were called to testify from ZESA, Fire Brigade, Police and South African Forensic experts, all of them for one reason or another could not furnish the court with an explanation on how the fire started. This therefore is the basis upon which the court concludes that the cause of fire could not be determined.

Despite the suppositions, speculations, conjectures and suspicions by various people including the deceased’s relatives, nothing concrete and no evidence at all was placed before the court to show that there was foul play in the death of the deceased.

In addition to that there is evidence from the doctor that deceased did not suffer any other injuries besides that caused by fire and there is also the evidence from the lead, Investigator, Chief Superintendent Makedenge to the effect that they carried out exhaustive investigations but there was nothing to show that there was foul play leading to the death of the now deceased. The facts and evidence presented before the court, therefore, do not show that there was foul play and consequently the court concludes that there was no foul play.

W Chikwana

PROVINCIAL MAGISTRATE

14 March 2012