City of Bulawayo v The State

On 5 December 2013, the deceased Shepherd Mpala Mgcini, a 17-year-old, was at Induba grounds in Iminyela Township, Bulawayo playing soccer. After his team was knocked out of the tournament, he stood near a tower light owned by the City of Bulawayo. The deceased came into contact with a naked part of an armoured electric cable at the tower light and was electrocuted, leading to his death. The cause of death was listed as cardiac arrest and electrocution. Zimbabwe Electricity Supply and Distribution Company (ZETDC) officials attended the scene and found that: (i) the cable was old and in a state of neglect; (ii) the armoured cable was not earthed; and (iii) the earthing connection had been vandalised. Evidence revealed that the deceased had been swinging on the electrical cable before his electrocution. The City of Bulawayo was charged with culpable homicide under section 49 of the Criminal Law (Codification and Reform) Act.

• Whether the appellant was the factual cause of the deceased's death
• Whether the appellant was the legal cause of the deceased's death
• Whether the State proved negligence on the part of the appellant beyond reasonable doubt
• Whether the deceased's conduct of swinging on the cable constituted a novus actus interveniens
• Whether the vandalism of the earthing cable could be reasonably foreseen by the appellant
• Whether the appellant had a duty of care in the circumstances and whether it was breached

The appeal succeeded. The conviction and sentence imposed by the Provincial Magistrate were set aside.

For a conviction of culpable homicide to succeed, the State must prove beyond reasonable doubt that the accused was both the factual and legal cause of the victim's death. Factual causation is established using the 'but for' test - asking whether the death would have occurred but for the accused's conduct. Legal causation requires that the unlawful consequence was reasonably foreseeable from the accused's conduct. Where an accused is alleged to have been negligent, the State must prove that such negligence actually caused the death in the particular circumstances of the case. An intervening act by the victim, particularly where the victim is of an age where they should exercise caution (in this case, a 17-year-old), may break the chain of causation. Vandalism of infrastructure by third parties that could not reasonably be foreseen does not establish negligence on the part of the owner/maintainer of the infrastructure where regular maintenance was conducted.

The court made several non-binding observations: (1) Expert evidence from witnesses who are employees of an interested party should be scrutinized carefully for potential bias, and courts should not simply adopt expert opinions without examining the factual basis. (2) The age of the victim is a pertinent factor in assessing duty of care and negligence - the older the victim, the more they are expected to take care of themselves and not take risks detrimental to their safety. (3) The court noted the relevance of sections 3 and 4 of the Electricity Act (Chapter 13:19) which places responsibility on the Electricity Regulatory Authority for ensuring safety in electricity delivery, suggesting that ZETDC as the electricity supplier had some responsibility for safe distribution. (4) The court observed that discrepancies in expert reports should be adequately explained, and where initial exculpatory findings are later contradicted, this undermines the reliability of the subsequent incriminatory findings.

This case is significant in Zimbabwean criminal law for clarifying the requirements of factual and legal causation in culpable homicide cases, particularly where intervening acts (novus actus interveniens) may break the chain of causation. It emphasizes that the State bears the burden of proving beyond reasonable doubt that the accused's conduct was both the factual cause (using the 'but for' test) and the legal cause (reasonably foreseeable) of death. The case also addresses the duty of care owed by public authorities in maintaining infrastructure, and the relevance of the victim's age and conduct in assessing negligence. It demonstrates that even where some negligence might exist, a conviction cannot stand unless causation is properly established. The case provides guidance on the evaluation of expert evidence and the need for a sound factual basis for expert opinions.