The State v Shupikayi Machembo

On 24 May 2007 at 10 pm, the accused was driving a lorry carrying 8 passengers along the Harare/Mutare road towards Macheke. He was stopped at a police roadblock for driving without tail lights and ordered to drive to the police station. He refused and drove on for three kilometers before being stopped again. When asked to alight, he refused and drove off towards Macheke. At a second roadblock at Macheke, police blocked his path with a police car and ordered him to stop. He defied the orders and circumvented the police car. A police officer fired two warning shots into the air, but the accused did not stop. The officer then fired at the vehicle, hitting and killing one of the 8 passengers. The accused was charged with culpable homicide on the basis that by failing to obey police orders to stop, he acted negligently and caused the death of the passenger. He pleaded guilty and was convicted and sentenced to a fine of $1 million or 20 days imprisonment in default, and ordered to surrender his driver's licence for endorsement. The matter was referred for review by the scrutinizing regional magistrate who questioned the propriety of the conviction.

• Whether the accused's failure to obey police instructions to stop constituted negligent conduct
• Whether death was reasonably foreseeable as a result of the accused's failure to stop
• Whether the essential elements of culpable homicide were established on the facts
• Whether conviction for culpable homicide was appropriate where death was caused by a policeman's gunshot rather than the accused's driving

The conviction and sentence were set aside. The court ordered that the accused be refunded the fine that he paid. The court noted that it remains the prerogative of the Attorney-General to charge the accused with contravening section 43 of the Road Traffic Act if he so wishes.

For a conviction of culpable homicide to stand, two essential elements must be established: (1) the accused must have been negligent in their conduct, and (2) death must have been reasonably foreseeable as a direct result or natural and probable consequence of that negligent conduct. Where death results from an intervening act by a third party (such as a police officer shooting at a vehicle), rather than from the accused's manner of driving or conduct, and where such death was not reasonably foreseeable to a reasonable person in the circumstances, the causal link required for culpable homicide is not established. Negligent conduct alone, even if it creates a dangerous situation, is insufficient for culpable homicide if the death that ensued was not the direct result or natural and probable consequence of that negligence.

The court observed that the accused's actions in failing to stop when ordered by police constituted a deliberate and conscious act that was grossly negligent, and that "the greater misdeed incorporates the lesser." The court noted that the accused should more appropriately have been charged with contravening section 43 of the Road Traffic Act (failure to obey police instructions), and that it remains the unfettered prerogative of the Attorney-General to charge him with that offence if he so wishes. The court also commented that a reasonable person would not expect an armed policeman to shoot at a moving lorry with passengers at the back in an attempt to stop the driver, implying criticism of the police officer's decision to fire at the vehicle.

This case is significant in Zimbabwean criminal law as it clarifies the essential elements required for a conviction of culpable homicide, particularly the requirement of reasonable foreseeability of death. It establishes that while an accused's conduct may be negligent and may create a dangerous situation, this alone is insufficient for culpable homicide if the death that resulted was not reasonably foreseeable as a natural and probable consequence of the accused's actions. The case distinguishes between negligent conduct and the causal link required between that conduct and death. It also demonstrates the limits of culpable homicide liability where death is caused by an intervening act (in this case, a police officer's decision to shoot at a vehicle with passengers), even where the accused's initial conduct was unlawful and negligent. The case serves as an important precedent on the two-pronged test for culpable homicide: negligence plus reasonable foreseeability of death.