MATHONSI J: At
the end of the hearing of this appeal we upheld the appeal, set aside the
conviction of the appellant and quashed the sentence. We indicated that the reasons for that
dension would follow. These are the
reasons.
The Appellant was convicted of
stock theft by the regional magistrate, Bulawayo on 28 August 2006 and
sentenced to 9 years imprisonment. He
appealed to this court against conviction only on the following grounds:
''GROUNDS OF APPEAL
PREJUDICE
1. From the onset the learned trial magistrate erred by allowing himself
to be influenced by the fact that the court had dealt with a number of cases of
stock theft involving complainant, that is apparent from the judgment. This appellant was greatly prejudiced by this
in his defence.
2. The appellant had his bail revoked midway in the trial without having
breached any of the conditions.
DELIVERY OF THE BEASTS
3. The learned trial magistrate erred in
failing to make a full inquiry to his satisfaction as to how appellant was
alleged to have taken delivery of the purchased beasts. Complainant had no corroboration whatsoever
in as far as delivery of the purchased beasts was concerned.
4. The learned trial magistrate also erred in
dismissing the testimonies of 3 defence witnesses who stated that as of
September 2005 appellant still had not yet collected his beasts from
complainant.
5. The learned trial magistrate further erred
in dismissing appellant's explanation that after purchasing the 3 beasts from
complainant in 2003 he had to wait until they had calves before collecting
them. The magistrate dismissed this as
strange while in actual fact that is the traditional (sic) among rural
villagers.
6. The learned magistrate also erred in holding
that the absence of appellant's son to testify, whom the cattle had been bought
on his behalf (sic) was fatal to appellant's defence and meant that the son got
the cattle and went away.
THE ALLEGED THEFT
7. The learned magistrate erred in failing to
put sufficient weight to the fact that the appellant collected 3 beasts from
complainant's herd, but only 2 are alleged to have been stolen.
8. The learned magistrate failed to appreciate
that the appellant's defence was the claim of right and the state had the onus
of disproving it and this was not done.
DESCRIPTION OF
BEASTS
9. The learned magistrate also erred in accepting
complainant's strong testimony that all the 3 beasts sold to appellant had no
ears.''
It is common cause that sometime in 2003 the
appellant through his wife Elizabeth Siwela, purchased 3 cows from the
complainant and was issued with a receipt dated 22 January 2003 which contained
the transaction and also reflected that the final payment of the purchase price
was made on 28 July 2003. The
description of the cattle bought by the appellant was given as ''2 redish
heifers and one brindle red heifer with blackish stripes.''
In 2005 the complainant who told the court that
he had about 800 cattle at his farm, was at the dip tank when he saw a cow
which had his ear mark and brand mark, now bearing the appellant's brand and among
the appellant's cattle. He later saw a 2nd
one and reported the matter to the police who were accompanying him alleging
that appellant had stolen his cattle.
The description of the cattle recovered from
the appellant and allegedly stolen from the complainant as given by the state
witness Brighton Tshuma is that one cow was ''like an impala in colour –
redish.'' State witness Stanford Bereke,
the investigating officer described the 2 cows that he recovered from the
appellant as ''one cow had impala colour-red.
The other was brindle with 7C and below was PSW.''
It must be noted that the complainant only
pointed 2 cows as having been stolen from him and their description clearly
matches that of the beasts bought by the appellant from him 2 years
earlier. When confronted with this fact
under cross examination, the complainant could only say that those that he sold
to the appellant had no ears after all their ears had been eaten away by
ticks. It is difficult to understand why
the appellant would have bought such deformed cattle. We found that story unbelievable anywhere.
The trial magistrate did not concern himself
with an inquiry into the issue of whether the cattle allegedly stolen were not
the same that were sold to the appellant.
It is important to note that when the appellant collected and branded
the cattle he did so openly having invited the local anti theft committee
members who testified in court that the cattle were collected in broad daylight
from complainant's employees.
In light of the foregoing it is strange that the
court a quo still concluded that the state had proved
theft beyond a reasonable doubt. Mr
Makoni for the Respondent conceded that the appellant's guilt had not been
proved beyond a reasonable doubt especially as the court a quo not only failed to clarify whether the beasts allegedly
stolen were not the same as those that had been sold to the appellant but also
that the learned trial magistrate appeared to place the onus of proof on the
appellant instead of the state. The
trial magistrate wanted the appellant to call his ''boys or sons--- who drove
the 3 cattle'' to be called to confirm that issue.
We are of the view that the concession by the
state is proper. Clearly there remains a
possibility that the complainant was laying a claim to cattle which he had
already sold.
In the result it is ordered as follows:
that
1. The
appeal succeeds with the result that the conviction of the appellant of stock
theft is set aside.
2. The
sentence imposed is also accordingly quashed.
Ndou
J ................................................. I agree.
R. Ndlovu, Appellant's legal Practitioners
Criminal Division, Attorney
General's Office, Respondent's Legal Practitioners
