DUBE
J:
The
appellant appeared before a Mvurwi magistrate facing a theft of trust
property charge in terms of section 113 of the Criminal Law
(Codification and Reform Act) [Cap
9:23].
The State allegations were that the appellant received US$2,440-00
from his employer for purposes of paying wages for contract workers
at Tel One Mvurwi Depot. Instead of handing over the money to the
intended beneficiaries, the appellant converted the money to his own
use. The appellant was convicted and fined USD300 or 6 months
imprisonment.
Aggrieved
by the conviction, the appellant appeals against both conviction and
sentence. His grounds of appeal are as follows:-
“AD
CONVICTION
Appellant
argues that the court a
quo
erred or misdirected itself in one or more of the following ways:-
1.
Whether or not the court a
quo
heavily relied on unsafe evidence which did not point to the guilt of
the appellant.
2.
Whether or not the court a
quo
relied on flouting of workplace procedures by the appellant as
evidence of theft, the charge alleged by the State.
AD
SENTENCE
1.
Whether the court a
quo imposed
a disproportionate and stiffer penalty without regard to the
accused's personal circumstances, mitigation and contrition”.
The
respondent's counsel, Mr Nyazamba,
raised
a point in
limine which
he requested the court to deal with before proceeding to deal with
the merits of the matter. He submitted that the notice and grounds of
appeal raised in respect of conviction fall short of the requirements
of Rule 22(1) of the Supreme Court (Magistrates Courts) (Criminal
Appeals), Rules,1979, (hereinafter referred to as 'the rules').
He
submitted further that the appellant's grounds of appeal are vague
and too generalised. That the rules require a notice of appeal to be
clear and specific and to indicate whether the misdirection alleged
is one of fact or law. He urged the court to dismiss the appeal as it
is not properly before the court, is a nullity and on the basis that
there is no appeal before the court. The appellant's counsel in his
response submitted that there was no need to give further details
because the notice of appeal states clearly what the grounds of
appeal are. He maintained that the grounds of appeal state what was
not canvassed by the trial court and that the substance of
appellant's appeal was that the State had failed to prove its case
beyond a reasonable doubt. He contended that the State has not
suffered any prejudice as the grounds are amplified by appellant's
heads of argument.
The
court directed the parties to proceed and argue the matter on the
merits and indicated that its ruling will be encompassed in the main
judgment.
Rule
22(1) provides that a notice of appeal should set out “clearly and
specifically the grounds of the appeal”. Failure to comply renders
the notice a nullity. In terms of Rule 47, if the notice is a nullity
and the time for noting an appeal has lapsed, the right to appeal
must be deemed to have lapsed.
Our
Criminal Courts in practice do not strictly scrutinise grounds of
appeal for compliance with the requirements of Rule 22(1). The
Attorney General's Office has in the past not paid particular
attention to the format of grounds of appeal and most grounds of
appeal though not complying with the rules, have gone unchallenged
resulting in litigants not adhering strictly to the rule. There is
need to comply with the rules of court. There are a number of cases
which have emphasised the need to comply with this rule as well as
set out the requirements of the rule.
In
Killian
v Geregskade
Uitenhage
1980 (1) SA 808, the court set out the requirements of a notice of
appeal and held that;
“a
notice of appeal requires that the points upon which an appellant
relies on be set out in precise detail so that the respondent can
know the points upon which a decision is required. The magistrate
must be properly informed of the grounds upon which the appeal is
based.”
Grounds
of appeal should be clearly stated and should not be in general form.
As enunciated in R
v
Jack
1990
(2) ZLR 166, a notice without meaningful grounds of appeal is not a
notice of appeal, and if the time within which to note an appeal has
lapsed, it cannot later be amended and the right to appeal falls
away.
The
first ground avers that the trial magistrate relied on unsafe
evidence to convict. If the ground is meant to challenge the
magistrate's findings of fact, it is not specifically so stated. In
R
vEmmerson
1958 (1) SA 442 at 442, BEADLE J said the following approach was
emphasised;
“…if
the ground of appeal is that the magistrate erred in law this should
be stated, and the particular mistake of law which the magistrate is
alleged to have made should be set out. If however, the ground of
appeal is that the magistrate erred on the facts this should be
stated, and the appellant should go further and state whether the
magistrate erred in accepting the evidence led or in regarding that
evidence as sufficient to prove the offence.”
A
ground that the court a
quo
misdirected itself in that it heavily relied on unsafe evidence which
did not point to the guilt of the appellant is too general. It lacks
precise detail of the points the appellant seeks to rely on. It is
vague as it does not state whether the magistrate erred in law or
fact.
The
first ground seems to attack the magistrate's findings of fact.
Appellant is not clear whether the magistrate erred in accepting the
evidence led or in regarding the evidence as sufficient to prove the
offence. That ground was not adequately canvassed.
The
second ground raises the query whether or not the court relied on
flouting of work place procedures to prove the offence of theft.
Respondent's style is quite interesting. Instead of stating his
ground of appeal, he poses a general question. Furthermore, that
question is vague and does not state whether the challenge is of law
or fact. Both grounds of appeal are superficial and empty and do not
comply with the rules.
The
procedure governing filing of notices of appeal is a procedure
separate from that for heads of arguments. The two processes serve
two different purposes and the processes are filed at different
stages. Grounds of appeal are required at the initial stages of the
appeal to inform stake holders of the appeal. Heads of argument on
the other hand serve a completely different purpose of identifying
the heads of argument in opposition to/or in support of the appeal.
It is inappropriate to file grounds of appeal that are vague on the
premise that these will be bolstered up by the appellant's heads of
argument as that objective is not achievable. Filling of grounds and
a notice of appeal is not a mere formality. The grounds should
therefore be precise, clear and unambiguous at the stage at which
they are filed. Appellant's argument that the defects in the notice
of appeal are cured by the heads of argument does not therefore find
favour with this court.
This
court cannot overemphasize the need for grounds of appeal to be
always clear and precise. They should set out in detail the points
upon which the appellant relies. They serve a purpose which is to
advise the trial magistrate of the points challenged on appeal. The
magistrate's views and comments in turn are meant to assist the
Appeal Court on the points challenged. It is difficult for a trial
magistrate who is expected to reply to an imprecise ground of appeal
to make a meaningful response. The respondent should also be
sufficiently informed of the requisite points the appellant wishes to
take on appeal so that the respondent is capable of making a
meaningful response. The Appeal Court on the other hand should be
adequately advised on points over which its decision is required.
Looking at the contents of the grounds and the format in which they
are in, this court is at a loss as to the basis of this appeal and
the points over which its decision is required. It is undesirable to
pose questions in a notice of appeal whose purpose it is to identify
issues and clearly define them for purposes of the appeal.
A
notice of appeal which does not comply with the rules of law, at law
is a nullity. The present grounds of appeal are a nullity as they
fall far short of the requirements of Rule 22. The application
succeeds.
Notwithstanding
that the grounds of appeal are a nullity we would still dismiss the
appeal on the merits for the following reasons;
Mr
Nyazamba
supported both conviction and sentence. Appellant's counsel
submitted that it was illogical for the court to conclude that
appellant stole the money when there is someone else who had keys to
where the money was left and there is evidence that he entered that
room searching for pins. That the inference drawn by the learned
trial court was not consistent with all proved facts.
The
trial magistrate convicted appellant after finding that the appellant
failed to follow procedures and that his design was to steal the
money. That he failed to give the money to his assistant or put the
money in a lockable cabinet and instead put it in an unlocked drawer.
That he failed to make a report and only did so on Thursday after
being prodded to report by his co-accused.
The
trial magistrate found that the only reasonable inference to be drawn
is that the appellant misappropriated the money. That the possibility
that anyone else other than accused stole the money is very remote.
That his conduct, when he received the money and upon discovery of
the theft shows that he stole the money. The trial court convicted
the appellant on the basis of circumstantial evidence and drew the
inference that he stole the money. The trial court considered and had
regard to all the circumstances of the case as well as his
explanation for failure to secure the money and to report the theft
soon after discovering the offence before coming to the conclusion it
did.
What
this court is being called upon to decide is whether the inference
drawn by the court a
quo
was the only reasonable inference to be drawn from the proven facts.
It
is trite that where a judicial officer convicts an offender on the
basis of a finding of circumstantial evidence, there must not be
other co-existing circumstances which would weaken or destroy the
inference sought to be drawn. The inference drawn must be the only
reasonable inference that can be drawn from the proved set of
circumstances.
See
S
v
Marange
and Ors
1991 (1) ZLR 244; S
v
Hartlebury
and Anor
1985 (1) ZLR p1 (HC); S
v
Machakasa
SC106/89
for that approach.
The
court is required to have regard to all the facts and the
probabilities of the matter and as WOODERMEYER JA in R
v
Blom
1939
AD 188 @ 202-203 put it;
“In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:-
(i)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not the inference cannot be drawn.
(ii)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct”.
Appellant
gave his own account of the events leading to the loss of the money.
Whilst
there is no onus on an appellant to show his innocence, the court was
still required to be satisfied that his explanation was improbable
and that his explanation was false. As put in Rv
Difford
1937 AD 370 @ 373;
“……..
No onus rests on the accused to convince the court of the truth of
any explanation which he gives. If that explanation is probable, the
court is not entitled to convict unless satisfied not only that the
explanation is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
being true, then he is entitled to his acquittal”.
See
also R
v
N
1946 AD 1023.
The
learned trial magistrate considered both the State version and
appellant's explanation. The court considered cumulatively all the
evidence available. There is sufficient evidence on record to support
the conviction. Appellant violated the standing procedures for
securing money. He kept money in a drawer instead of a locker in his
office. He gave the keys to another person and failed to tell him
that there was some money in the drawer. He went away for four days
without paying the wages when he was required to ask his second in
charge to take over the assignment if he could not perform it
himself. He was aware that the contract workers required to be paid
before the holiday break. Upon his return, he spent a day without
asking for the keys and his explanation is that the person with the
keys did not have them close by. When he subsequently entered the
office at 8am, he says that he did not notice that the money was
missing until three hours later. After discovering that the money was
missing, the appellant did not make an immediate report. He did not
inform his second in charge of the theft and yet he had a meeting
with him the same day. His explanation is that he had not decided to
tell him. When asked in cross examination why he did not later phone
him, he gave no response. He failed to report until he was prodded by
a colleague to report the theft. He failed to report the theft the
same day only to report the next day. His explanation that he did not
phone him because he had not decided to tell him shows that he had
something to hide. Appellant's explanation for failing to secure
the money and to report the theft on time is improbable, fanciful and
unreasonable. The only reasonable inference that can be drawn is that
he stole the money. His conduct is not consistent with a person who
had had money stolen from him but someone who stole the money and had
something to hide. The trial court cannot be faulted for the approach
it adopted.
Having
found no misdirection on the part of the trial court, this court
finds no basis for interfering with the lower court's findings. As
remarked by KORSAH J in S
v
Masawi
and Anor
1996 (2) ZLR 472 (S) commenting on the findings of a lower court;
“If
these findings have support in the facts established and in
reasonable inferences, they are conclusive on appeal. After
conviction a verdict will not be set aside unless the record clearly
shows that upon no hypothesis whatsoever is there substantial
evidence to support it”.
Appellant
challenges the sentence imposed on the basis that it is unreasonably
stiff. The trial magistrate in considering the appropriate sentence
considered that the appellant was a first offender with family
responsibilities. That he has since reimbursed the complainant. The
court also considered that the appellant's moral blameworthiness is
very high. It considered imposing both a custodial sentence and
community service and decided against such sentences.
Appellant
stands convicted of a very serious offence. Theft of trust funds is
viewed in very serious light. He stole from employer and breached the
trust entrusted in him and he cannot expect to be treated leniently.
As put in Ndlovu
v
S
SC
84/84 per GUBBAY JA @ 99;
“the
offence involved a serious breach of trust placed in the appellant by
his employer.......The regrettable prevalence of theft by employees
occupying positions of trust ......... has resulted in the court
issuing stern warnings that such offenders cannot expect to be
treated leniently”.
The
aggravating features of this case far outweigh the mitigating
features. The magistrate properly considered that the appellant has
since compensated complainant. The court was not expected to place
too much weight on the mitigating effect of restitution as appellant
was convicted of a very serious offence and his moral blameworthiness
is very high. He stole from his employer and he did so out of greed
rather than need as he was gainfully employed.
Our
courts view seriously the offence of theft of trust funds.
As
put in, Mayberry
v
S
HC-H
248/86;
“In
cases involving dishonesty a willingness or ability to make
restitution is always a mitigating factor. Generally speaking, it
will be given considerable weight especially where the accused is a
first offender. The judicial officer should try to ensure that the
complainant is compensated for his pecuniary loss at the expense of
the accused, but a balance must be struck with the seriousness of the
offence …”
Similar
sentiments were expressed in S
v
Mpofu
1985 (4) SA 322.
The
learned trial magistrate properly considered that the appellant was
gainfully employed and stole out of greed rather than need. Appellant
stands convicted of a very serious and prevalent offence and he stole
from his employer thereby breaching the trust entrusted in him. His
moral blameworthiness is very high.
What
is in appellant's favour is the fact that he is a first offender
and ordinarily all efforts should be made to keep first offenders out
of jail.
A
suspended sentence would not have met the justice of the case. A
caution and discharge would also not have been appropriate regard
being had to the aggravating features of this case. Appellant is
lucky that he got away with a fine. A short and stiff custodial
sentence would in our view, have met the justice of the case.
Appellant is lucky that he got away with a fine. If the trial court
erred, it erred on the side of leniency.
In
the result, the appeal is without merit and is dismissed.
BHUNU
J, agrees ………………………..
Kajokoto
and Company,
appellant's legal practitioners
Attorney
General's Office,
respondent's legal practitioners
