Indictment or Charge re: Identity of Aggrieved, Complainant or Victim, Corpus Delicti and the Presumption of Death

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion ...

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that, on various separate occasions, but during a period beginning 29 March 2009 to 14 August 2009, and at the Ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation's Offices in Harare, both accused persons, and in common purpose, unlawfully and fraudulently made misrepresentations with intent to defraud the Government of Zimbabwe, that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-Mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated Memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a share holder Agreement between Zimbabwe Mining Development Corporation and Core Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core Mining thereby causing an actual prejudice of two billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty, and, thereafter, proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities, being artificial persons, could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defense if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused's second complaint is that although the State alleges actual prejudice of two billion United States Dollars, it does not inform them as to how the prejudice came about.

In light of such objections, the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1) The court may either before or at the trial, in any case, if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the accused or to his legal representative without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)…,.”

Section 146 of the Criminal Procedure and Evidence Act [Chapter 9:07] prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment summons or charge

(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus, the State is under an obligation to frame a charge, among other things, so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.

Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid down in section 146 of the Criminal Procedure and Evidence Act.

It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two billion United States Dollars. In short, they are being accused of defrauding the Government of Zimbabwe of two billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The Government of Zimbabwe, duly constituted by the Constitution of Zimbabwe, is, therefore, undoubtedly, a juristic person.

HALO's South African Company Law through the cases, 6th ed, 1999 defines a juristic person as:

“a body corporate or association other than a natural person, that is endowed by law with the capacity to have rights and duties apart from its members.”

The State, being a juristic person, ought to be treated like any other juristic person: TETT and CHADWICK, Zimbabwe Company Law, 2nd ed…, states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law, therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus, the Government of Zimbabwe, like any other juristic person, has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person.

Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person.

It is instructive to note that section 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

The failure to mention or specify the natural person to whom the alleged misrepresentation was made cannot possibly prejudice the accused in their defence because the State elaborated, in its summary, that, the misrepresentation was made to the juristic persons through written letters which will be produced in court through named competent witnesses, including the Permanent Secretary in the Ministry of Mines.

Written documents which the accused can interrogate speak for themselves in the normal run of things: letters disclose their author, addressee, and the communication conveyed from one party to the other.

I can therefore perceive no prejudice to the accused if they have been provided with access to the relevant documents upon which the alleged misrepresentations are founded.

As regards the quantum of prejudice, the State elaborated that the amount of prejudice was occasioned in one capital sum arising from the misrepresentation. In the light of that explanation, it will be illogical to order the State to provide a non-existent break down when it alleges that the prejudice was not incurred in instalments.

The purpose of an indictment is to inform the accused of the case he is going to meet in Court without necessarily providing the evidence required to prove the allegations.

The summary of the State case provides a precis of the evidence upon which the State intends to rely on in proving its case.

Viva voce evidence, documents, exhibits, and any other evidence constitute the actual poof of the allegations against the accused as alleged in the indictment and summarized in the outline of the State case.

It is important not to confuse one stage from the other.

Having carefully perused the charge sheet and the State's response, it appears to me that the particulars required by the accused person, in respect of the indictment, are properly contained in the summary of the State case that is yet to be read in open Court.

For that reason alone, both the exception and application for further particulars cannot succeed. Both objections are accordingly dismissed.

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

The accused is charged with the murder of Keniard Doro. The indictment charges that on 20 January 2015, and at Hereford Farm, Centenary, the accused, acting with an intent to kill or realizing the real risk or possibility that his actions may result in death, struck the deceased several times all over his body with a knobkerrie thereby inflicting injuries from which the deceased succumbed to his death.

The accused, when asked whether he understood the charge, confirmed that he understood it.

When asked what his plea to the charge was, he said:

“I do admit the charge although I would like to explain further.”

Counsel for the accused stood up and indicated to the court that the plea by the accused did not accord with his instructions. He requested the court for leave to consult with the accused so that he could fully appreciate the accused's position.

The court granted the leave.

Counsel for the accused advised the court that he had taken instructions and explained to the accused the procedural aspects of plea recording. The court then explained the indictment to the accused and the elements of the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused confirmed that he fully understood the explanation of the indictment by the court.

When asked whether he admitted or denied the charge, in the light of the explanation which he had understood, he responded as follows:

“I will deny the charge because there are certain aspects I will agree to and others which I will deny.”

The court recorded a plea of not guilty, which plea was confirmed as according with his instructions by counsel for the accused. The court also recorded the accused's explanation.

The court is required to record the statements so made in terms of section 180(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.

The material facts alleged by the accused in his Defence Outline were as follows;

1. He denied taking part in any active act which led to the death of the deceased whom he did not know in his lifetime - albeit denying that the remains recovered by the police and said to be those of the deceased were not in fact those of the deceased....,.

The State opened its case by tendering a post mortem report as an exhibit in terms of section 278(2)(b) of the Criminal Procedure and Evidence Act.

The report pertained to the examination of the remains of a deceased person noted in the report as Keniard Doro Korekore. The remains were examined by Doctor Gonzalez, a legal medicine specialist employed by the Ministry of Health and Child Welfare. He examined the remains on 14 August 2015 at Harare Hospital after they were identified to him by Zimbabwe Republic Police details from Centenary. The doctors' observations revealed no fractures of the skull, ribs or long bones. He could not ascertain the cause of the deceased's death because only bones remained.

Counsel for the accused consented to the production of the report and it was accepted as exhibit 1.

The State led evidence from the following witnesses whose evidence is summarized hereunder.

Dorothy Simbi: Is the wife of the deceased. She testified that the deceased left home, that is Plot 13 Mukwengwere Farm, Centenary, on 20 January 2015 in the morning. He left driving his motor vehicle, a Toyota Ipsum registration No. ABL 4665. He was in the company of Shongedzai, their daughter. The deceased undertook the journey as part of his routine since he always ferried children to crèche at St Alberts. She said that the deceased relied on commuting passengers with this car for a living.

This was the last time that the witness saw her husband alive.

She last tried to call him on his phone around 10:00am but did not receive any response. The daughter, Shongedzai, who would have returned with the deceased, showed up in the evening - alone. Shongedzai narrated to the witness how she had moved with the deceased that morning. When the deceased did not show up the whole evening, something which he had never done before, she proceeded in the morning to St Alberts to make a report to the police. She also alerted members of the close family about the deceased having gone missing. Searches were carried out but the deceased was not found.

On 13 August 2015 the witness was shown some human remains by the police at Mvurwi police station. She identified the remains as those of the deceased. The remains consisted of a skeleton. She, however, identified the remains as those of the deceased through recognizing his belt and pair of cream trousers. She could not commit herself to saying that she identified the remains through a T-shirt though she mentioned it. The T-shirt had discolored. She also said that the head or skull had a jacked wrapped round it but she did not know whose jacket it was.

Under cross-examination, the witness refuted the suggestion that because the remains were just bones, she could not be certain that they belonged to the deceased. She steadfastly maintained her evidence that she identified the deceased's trousers and belt and also said that the deceased's bones were still intact, in a skeleton shape, and not just single bones....,.

The witness gave a simple narration of how the deceased left home in the morning on 20 January 2015 and was never seen alive again.

Her evidence was largely not contentious save for the issue of how she identified the remains recovered by the police as those of the deceased. She maintained her position the she identified the remains as those of the deceased through the belt which was still wrapped round the trousers which trousers was still downed by the skeleton. She identified the remains through the trousers which she said belonged to the deceased.

The items of clothing were buried together with the remains and were not available to the court. The court noted that the issue of the identification of the deceased's remains did not appear to have been an issue and was not questioned until the trial commenced….,.

Shongedzai Doro: Is the deceased's daughter and was residing at the same Plot as the deceased. She worked, and still works, as an Early Childhood Development (ECD) teacher at St Alberts Centre, Centenary.

She left home in the company of the deceased on 20 January 2015 in the deceased's motor vehicle. They were headed for St Alberts. As the vehicle got to St Alberts police station, the deceased's cellphone rang and it was on loud. The person who phoned said; 'Wave kupi mudhara (Oldman where are you now?). The deceased responded that he had already left home and that the caller should wait for him at Zororo restaurant. The caller then responded that he was already at the place.

On arrival at Zororo restaurant, the witness saw the accused. He came to the driver's window and spoke to the deceased saying that 'they were late'. The deceased then asked the accused to wait whilst he dropped the children he was carrying in the car at the bus rank. The deceased then gave the witness $100 and asked the witness to give him $10. She did so and retained $90. She disembarked from the vehicle. The deceased then told her that he had been hired by the accused but that the witness should wait for him after work so that they would return home together.

She testified that the accused, whilst sitting in the passenger seat, kept his face down and did not look up nor speak to her. When she finished work she waited for the deceased but he did not show up. Around 4:00pm she telephoned her husband who came to pick her up and they returned home. She narrated to her husband, and mother, how the deceased had left her, on hire by the accused, and taken a direction which she did not notice. This was the last time that she saw the deceased.

She was part of the team which searched for the deceased on the following day. She also sought police assistance and tried to gather information on the deceased's movements at the bus rank to no avail.

The witness identified the remains of the deceased at Mvurwi police as well as the accused whom she saw having a meal. She said that she identified the deceased through his grey hair and T-shirt with a red line which was however no longer visible.

The witness was cross examined on the attire which the deceased had been wearing on the day in question and he said that the deceased was putting on a red T-shirt with a white stripe, grey trousers and a green jacket. When put to her that her mother had testified that the deceased was putting on a cream trousers, she disagreed and reasoned that her mother could have been mistaken on account of her age. She confirmed that the skeletal remains still had a belt round it but could not commit to the belt colour as it was dirty. There was still a little human flesh around the waist line of the skeleton with the rest being bones. Some of the grey hair was on the jacket and some on the head. The witness stated that she was scared when she saw the remains but maintained that her fears were related to her failure to have a second look at the skeleton. She was however satisfied that the remains were those of her father....,.

The witness's evidence was given in a simple narration. Despite the fact that the deceased was her father, she exhibited a high degree of composure. The court was impressed with her demeanor and accepted her evidence which was not seriously challenged save with respect to the identification of the deceased….,.

Elijah Doro: Is the deceased's son and stays at 61 Avenue Haig Park. He is employed as a Research Officer by the Parliament of Zimbabwe.

On 20 January 2015, he was in Harare when he received a phone call from his mother, the first witness, who reported that the deceased had not returned home after leaving in the morning. He advised his mother to report to the police after 14 days. In the meantime, he took time off work and went to join up with other family members to search for the deceased. The searches were in vain....,.

The witness identified the deceased by his clothing, namely, a cream trousers and golf t/shirt which he had bought for the deceased in Uganda. He noted that the deceased had a jacket wrapped on his head or skull and the jacket did not belong to the deceased....,.

Tapiwa Maziti: Is a detective sergeant in the Zimbabwe Republic Police and part of the investigating team.

He accompanied the investigating officer, Sergeant Chinyani, to Nembudziya and Kadoma Police Stations following the arrest of the accused and the last witness, Evans Mupundu. This was following the recovery of the deceased's motor vehicle. The team interviewed the accused, and, thereafter, the accused elected to make indications which he did freely and voluntarily.

The accused indicated the route which he took from St Alberts and also how he, Ngonidzashe Dube and Amos Moyo murdered the deceased. The deceased's remains were recovered, on the accused's indications, covered by stones in a shallow cave. The remains were taken to Mvurwi CID and identified by the deceased's relatives. He said that a team was dispatched to Gokwe to investigate the whereabouts of Ngonidzashe Dube and Amos Moyo but the two could not be found or identified.

The accused then gave another address to which police were dispatched. The witness was then transferred to Chiredzi and did not know what the result of the subsequent investigation or follow up revealed.

Under cross examination, he agreed that the accused mentioned the involvement of his accomplices, Amos Moyo, whom he said was his brother, and Ngonidzashe Dube, whom he said was a friend. He denied that the names mentioned by the accused were Amos Dube and Ngonidzashe Sithole. He also denied that the accused mentioned that he was employed by Amos Dube, a policeman.

The indications took one and a half to two hours when the police got to the mountainous areas where the deceased's remains were found. However, the aggregate time from the time the police and the accused left the station was about eight (8) hours because most of the time was spent negotiating the roads and the place was about 150km away from Mvurwi.

The accused indicated a rented place where he said him and his accomplices were camping before meeting with the deceased. He also indicated the place where the deceased was attacked and also where the deceased's body was buried. The witness described the general area where the murder occurred as a newly resettled area, sparsely populated, with the nearest house, though unoccupied, being some 200-300 metres from the place where the deceased's body was recovered. There were also some 10 or so houses some 500m-600 metres away. The area has dense vegetation. The team did not meet any person nor see livestock during indications.

The witness denied that the deceased was assaulted by either him or anyone else.

He denied that he already had an idea of the area where the indications took place. He denied being aware of whether or not the accused's warned and cautioned statement was confirmed nor the reasons thereof. He admitted however that the accused alleged, at court, on 13 August 2015, that he had been assaulted.

He denied that the accused was denied food and said that, as a detainee, the accused was fed by the uniformed section of the police.

He denied the suggestion that he was out to mislead the court.

In re-examination, he said that he was not aware that the deceased was dead prior to indications.

On clarifications by the court, the witness testified that the remains of the deceased were located at Hereford Farm in Centenary being a place which the witness had never previously visited. Despite the suggestion by the accused's counsel that the witness was out to mislead the court, the court did not share this view. On the contrary, the evidence of the witness was clear and easy to believe.

The crux of his evidence related to indications allegedly made by the accused. The indications led to the recovery of human remains identified later as those of the deceased. It was not alleged that the remains were planted where they were found and the accused merely led to the place. It was not shown that the witness knew the place where the recovery of the remains took place prior to the accused's indications....,.

Roy Chinyani: Is a Detective Sgt in the Zimbabwe Republic police. He is the investigating officer.

He was allocated a docket concerning the missing deceased and his motor vehicle, an Ipsum, registration No. ABL 4605, on 21 January 2015. The witness interviewed Alexio Manyara and Roderick Chakabuda on 24 January 2015. They alleged that they had been offered employment by the accused as driver and assistant on 24 January 2015 but the accused just dumped them.

Roderick Chakabuda knew the accused. He alleged that he had previously stayed with him in Muzarabani. The witness later received information concerning the deceased's vehicle from Farai Doro. He teamed up with other police details and went to Nembudziya police station where he interviewed Evans Mupundu who narrated how he had been requested by the accused to drive the vehicle, and, later, paid a deposit fine for driving a vehicle without a licence. He recovered the deceased's vehicle and discovered that the accused had been released to go and collect the vehicle registration book before the vehicle could be released to him.

However, the accused did not return.

In August 2015, he was advised of the accused's arrest in Kadoma. He proceeded there and interviewed the accused under warn and caution. He then took the accused to Mvurwi Police Station for further investigations. At Mvurwi, the accused elected to make indications. The accused indicated the place where he was picked up by the deceased, the place where the vehicle failed to cross a stream, and the place where the deceased was attacked, as well the place where the remains were recovered in a shallow cave.

He said that the accused mentioned that he committed the offence with accomplices, namely, Amos Moyo and Ngonidzashe Dube. The accomplices could not be found at places where the accused gave out as their place of abode. The persons were not known.

He went to Chikurubi Prison where the accused gave him names of girlfriends of the said accomplices and where to find them so that they could assist in the location of the accomplices. The girlfriends were not located nor known.

The witness' evidence, as to the recovery of the deceased's remains, was the same as that of the last witness and no purpose will be served by regurgitating it. Under cross-examination the witness said that the belt and trousers were buried with the remains of the deceased and he did not consider it necessary to keep them as exhibits....,.

The witness gave his evidence in a straightforward manner. The evidence was not contentious. Again, the materiality of his evidence lies in the indications made by the accused...,.

The accused elected to give evidence and he took the oath.

He gave a long story in which a lot of what he stated had little relevance to his defence.

His defence, per his Defence Outline, was basically that whilst he had knowledge of the case, his involvement was peripheral or indirect because he was acting on instructions of Amos Dube, a serving member of the Zimbabwe Republic Police, who was his employer.

The evidence will not be repeated but a summary of the same will suffice.

He said that he had been employed by Amos Dube for three (3) years as a herd boy. He was told by his employer that they were going to buy cattle in Muzarabani and he was surprised. He was given a phone and directed to telephone the deceased. The deceased was known to Amos Dube. Amos Dube told the accused, on phoning him, to say that they would be going to pay lobola and would meet Amos on the way. He did connect with the deceased and met with Amos Dube and Ngonidzashe Sithole at a place called Chinyani.

It was at this place that the deceased was ordered to disembark from the vehicle, grabbed by his hands, and handcuffed. Ngonidzashe Sithole then put the deceased in leg irons. The deceased was tied to two trees whilst prostate. He called out for help but no one assisted him. He was left there.

He said that the handcuffs belonged to Amos Dube. He admitted that the three of them, with Amos driving, left or abandoned the deceased. In short, they robbed the deceased of his motor vehicle.

The rest of the evidence concerned how the trio continued to use the vehicle for their errands.

He admitted being sent to try and retrieve the car registration book from the deceased's place and posing as a policeman there after being given a police uniform by Amos Dube. The trio later returned to where the deceased was. He was still alive. The deceased was asked for the car registration by Amos Dube and Ngonidzashe Sithole. He told them that the book was at his home.

He went to the deceased's homestead. He admitted lying to the deceased's family about the registration book.

He admitted that he again returned to the scene with Ngonidzashe Sithole and Amos Dube and found that the deceased had died. He said that Ngonidzashe Sithole then gave him keys to unlock the handcuffs and leg irons. Amos Dube, however, volunteered to unlock the cuffs and did so. The deceased's body was then placed beside a rock and covered with grass and stones. The deceased's remains were left there and the trio drove away.

The accused testified that after covering the remains of the deceased, Amos Dube drove the vehicle, with him and Ngonidzashe Sithole as passengers, to Centenary. Whilst in Centenary, Amos Dube then said that he was known in the area. He was asked to look for a driver because he (the accused was not known). He then went to the bus rank and looked for a driver to drive his boss. He engaged a driver whose name he does not remember but that driver was in the company of Roderick Chakabuda whom he knew. He said that the driver, him and Roderick Chakabuda then proceeded to Chegutu where Amos Dube and Ngonidzashe Sithole had proceeded in advance. The driver and Roderick Chakabuda were dropped off in Chegutu and Amos Dube took over the driving and the trio, that is, the accused, Amos Dube and Ngonidzashe Sithole then proceeded to Kadoma.

From Kadoma, they drove to Copper Queen where the vehicle ran out of fuel and it was left on the roadside. The trio went to their homes.

On the following morning, the accused was instructed to go and collect the vehicle and he went with fuel. He said that he engaged a driver whom he knew to drive the vehicle but it would not start as the battery was flat. He then returned to Amos Dube's place and collected a tractor battery. The driver was able to start the vehicle. From there, he said that the vehicle, with him and the driver as the occupants of the vehicle, was driven to Kuwirirana Business Centre. He did not tell the driver their exact destination. At Kuwirirana Business Centre, he was instructed by Ngonidzashe Sithole to take the vehicle home. He however never got the opportunity to do so because he was then arrested at that Business Centre and detained by police details from Nembudziya. He was released on the following day to go and collect the vehicle registration book.

He lied to the deceased's family that upon his release he was given the police uniform by Amos Dube. He then masqueraded as a policeman and tried to get the deceased's family to give him the book after lying to them. He gave details of the lies he told the deceased's family about who he was and why he wanted the registration book. He had said that he had business at St Alberts after failing to get the book. He returned to his accomplices and they agreed to abort the efforts to retrieve the book.

The deceased's family members continued to phone on the numbers which he had given them when he lied that he was going to St Alberts. Amos Dube would cut them off.

In terms of sequence of events, the visit to the deceased's homestead occurred before they went back to where they had left the deceased in handcuffs and leg irons to retrieve the same and bury the deceased's remains. He said that he then returned to his workplace in Gokwe and continued with his duties of herding cattle and doing other chores. He then went to Kadoma for some shopping, missed his bus back home and was arrested by police officers patrolling the bus rank. He was detained for four (4) days and was collected by police officers from Mvurwi CID on the fifth day.

He denied having been in police uniform upon his arrest. He said that police assaulted him.

He testified that he told the police to quickly arrest Ngonidzashe Sithole and Amos Dube but the police did not believe his story about the involvement of Ngonidzashe Sithole and Amos Dube. They accused him of lying.

The accused was asked by his pro-deo counsel whether he did anything in the goings on which contributed to participating in the commission of the offence charged. The accused's response was that;

“I was following instructions.”

He said that he was forced to sign a warned and cautioned statement and was thoroughly beaten to a point where the magistrate at Guruve ordered that he be treated as he was coughing and nose bleeding.

The court noted, however, that the statement was no tendered in evidence.

He said that Amos Dube and Ngonidzashe Sithole used to visit him at prison. He further testified that each time he gave the police the correct names of his accomplices, the police would deliberately change the names to fix him because he is an orphan. He said that the police changed the names to Amos Moyo and Ngonidzashe Dube yet he had given them the names Amos Dube and Ngonidzashe Sithole.

The accused was cross examined by the prosecutor.

He was just on the defensive and evaded questions. He however agreed that the person whom he lured on the pretext of hiring him is the same person whose remains were recovered by police. The admission, of course, put paid to his denial, in the Defence Outline, that the remains recovered by the police were those of the deceased in this indictment.

He denied that Shongedzai Doro saw him when he was picked up by the deceased. He denied picking up Arnaldo Maguina Mussaliva, the priest. He denied being in uniform when he went to the deceased's residence to try and get the vehicle log book.

Asked why he impersonated a police officer, he said that he was not educated and had in fact asked Amos Dube and Ngonidzashe Sithole whether, when they sent him to try and get the vehicle log book, he would not meet up with the police.

He denied that he introduced himself to the deceased's family as Constable Makomo of Bindura Traffic.

Asked about the cell number which he gave to the deceased's relatives being that of a teacher he said that the number belonged to Amos Dube.

He said that when the deceased was being tied up, he sat inside the car and did not do anything. Asked what he thought was happening when the deceased was being tied up, he said that he was pre-occupied with his thoughts which were troubling him, in particular, that he no longer wanted to work for Amos Dube. Asked why he did not report the incident to the police, he said that he was not given a chance. As to why he continued associating with Amos Dube and Ngonidzashe Sithole, to the extent of hiring drivers and also accompanying them to Kadoma, Chegutu, Sanyati and Copper Queen, he said that he had nowhere to go.

He agreed that when the trio returned to the place where the deceased had been left tied up, to follow up on the vehicle log book, the deceased was still alive but very hungry. He appreciated that the deceased could die.

Asked if he cared at all what would happen to the deceased, he said that he did care, but that Amos Dube and Ngonidzashe Sithole were hard-hearted or headed.

He agreed that he was 26 years old at the time of the incident, an adult, but that Amos Dube stopped him from helping the deceased. He said that he was illiterate and did not own a driver's licence.

It was put to him that Amos Dube and Ngonidzashe Sithole were an afterthought of his and he said that the police deliberately recorded the names wrongly.

He could not explain the discrepancy between his Defence Outline and his evidence regarding indications and said that the police are the ones who made him indicate the various indications and that he was in leg irons.

He agreed that he stayed with his accomplices in a hut near the place where the deceased was attacked but that he stayed there with his accomplices only once. Asked by the court whether he appreciated that he and his alleged accomplices were committing an offence, he said that he could not do much as he was employed.

Asked why the police would shield criminals by recording wrong names to the ones he gave them, he said that he did not know.

The accused did not impress the court at all as witness in his defence. He failed to present a coherent account of his involvement in the events leading to the death of the deceased. The court was of the view that the accused was making every effort to make a clean breast from blame or involvement in the death of the deceased and sought to portray his role as being on the peripheral.

He sought to convince the court that he was just an unwilling log in a machine being operated upon by his accomplices. Measured against the State witnesses, the accused presented himself as a pathetic witness who did not care to tell even the most obvious lie. Each time that the accused opened his mouth to speak, one expected surprises if not fairy tales. The court rejected the evidence wherever it conflicted with that of State witnesses.

The prosecutor submitted that there were really few, if any, material disputes of fact when one considered or contrasted the evidence of the State witnesses with that of the accused. The only point of disagreement or departure consisted in the accused's involvement of his alleged accomplices whom no one appears to have seen – except, of course, the accused.

The police tried to follow on the leads regarding the accomplices but drew a blank.

The accused's assertion that the police, when given leads and names of the accomplices, deliberately changed the names given to them, is so improbable and unbelievable as to be decidedly false.

Only a gullible court would accept that, in the circumstances of this case, and given the seriousness of the charge of murder, the police would have sought to sacrifice the accused and exonerate the accomplices. No motive for such dereliction of duty or un-professionalism on the part of the police was suggested and the allegation just didn't make sense and must be dismissed.

The objective evidence in this matter clearly established, beyond any reasonable doubt, that:

(a) The accused purported to hire the deceased for purposes of going to pay lobola in Mount Darwin - which was a lie. The motive for the hire was intended to lure the deceased to agree to the hire as he would have wanted to know the purpose of the proposed trip.

(b) At all material times, the accused was in the deceased's motor vehicle and had possession and control of it, either by himself or through third parties whom he engaged to drive the vehicle under the guise that he had employed them only to dump them.

(c) The accused's actions leave the court, and, indeed, any reasonable trier of fact, in no doubt that he intended to deprive the deceased of his motor vehicle and went to the extent of impersonating a police officer and lying to the deceased's family as to his identity in a bid to cause the family to release the registration book. If the registration book had been released to the accused, he would have again hoodwinked the police at Nembudziya to release the deceased's vehicle to him.

(d) The accused could not have remained in the motor vehicle when the deceased was being disposed of his vehicle as he alleged. It is also inconceivable that the deceased would not have offered some resistance. In any event, even if it were accepted that the accused had accomplices who helped him disable the deceased, he, nonetheless, did not dissociate himself from the unlawful acts of the accomplices and thus made common purpose with them. He clearly appreciated what had been done to the deceased, that is, robbing him of his motor vehicle. He then willingly took a ride with his accomplices in the vehicle, that is, if there were any accomplices at all.

(e) The remains of the deceased were found as a result of indications made by the accused....,.

The accused's pro deo counsel submitted that there was no evidence led, beyond reasonable doubt, that the remains recovered by the police were those of the deceased.

This submission was startling because the accused himself indicated the place where the remains of the deceased had been buried. There was no suggestion that the remains could be of anyone else other than the deceased. The accused admitted that the deceased died as a result of the actions of the accused's accomplices and they recovered their handcuffs and leg irons from the deceased's body before burying his remains under stones and grass.

What better evidence of identification could one have sought for?

This was a clear case where the identification of the body of the deceased was made by the accused and confirmed by the State witnesses. No scientific evidence was necessary.

In any event, it would not have mattered that the remains were not of the deceased but of another human for as long as such un-identified person would have been killed as a result of the unlawful actions of the accused. See section 56 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant sought a review of the second respondent's decision placing the applicant on his defence on the following grounds;“1. The irrationality or outrageousness of the 2nd respondent's decision of dismissing the Applicant's application for discharge at close of State case when the evidence led in court clearly show that ...

The applicant sought a review of the second respondent's decision placing the applicant on his defence on the following grounds;

“1. The irrationality or outrageousness of the 2nd respondent's decision of dismissing the Applicant's application for discharge at close of State case when the evidence led in court clearly show that the State failed to prove a prima facie case against the applicant. Put differently, 2nd Respondent dismally failed to objectively consider the evidence which clearly exonerated the applicant from any wrong doing.”

The brief background to the matter is that the respondent pleaded not guilty before the Magistrates Court to a charge of fraud as defined by section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. At the conclusion of the State case, the respondent applied for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The application was dismissed.

He now seeks review of that decision.

Generally, it is not desirous for a higher court to interfere in an incomplete trial before an inferior court. JOHN REED-ROWLAND in his book Criminal Procedure in Zimbabwe says about this…,;

“The High Court's statutory power of review can be exercised at any stage of criminal proceedings before an inferior court.

However, in uncompleted cases, this power should be sparingly exercised.

It would only be appropriate to do so in those rare cases where otherwise grave injustice might result or justice might not be obtained. For example, if grave irregularity or impropriety occurred in the proceedings, it would be appropriate for the High Court to consider the matter. Generally, however, it is preferable to allow the proceedings to run their normal completion and seek redress by means of appeal or review.”

Section 29 of the High Court Act [Chapter 7:06] gives the High Court extensive review powers in criminal proceedings of the Magistrates Court. Such powers are exercisable at any stage of the hearing. However, as stated above such powers should be used sparingly whilst proceedings are still incomplete so as to discourage the overflow of the High Court with incomplete proceedings of the Magistrates Court.

The High Court should not usurp or interfere with incomplete proceedings before the Magistrates Court to allow the magistrate to independently deal with the discretion imposed on him/her. The High Court should only interfere where actual and permanent prejudice will be occasioned to the applicant. The applicant must provide proof that he/she will suffer prejudice should the High Court not interfere at this stage.

The applicant averred that the decision of the magistrate is irrational and outrageous.

The particulars for the fraud were that;

“In that on various separate periods but during the period extending from 1 February 2006 to 2 February 2012, and at Kwekwe Consolidated Gold Mines, Kwekwe, Lee Waverly John unlawfully misrepresented to Carslone Enterprises (Pvt) Ltd that he was the new owner or director of Kwekwe Consolidated Gold Mines (KCGM) through an omission to disclose the permanent dereliction of the mine by previous owners and directors whose whereabouts are currently unknown to the prosecutor; that is to say, the accused, holding himself out as a director and new owner of KCGM, tributed the mine to Carslone (Private) Limited thereby causing prejudice to the good reputation and good administration of the Registrar of Companies office and the Ministry of Mines and Mining Development.”

The applicant argued that Carslone Enterprises denied that it was the complainant in the matter.

The evidence of Mirirai Chiremba, a representative of Carslone Enterprises, exonerated the applicant. Mirirai Chiremba testified that Carslone Enterprises did not suffer any prejudice. The witnesses from the Companies Office also testified that her office suffered no prejudice. She testified that, in terms of papers held by her office, the applicant was a director of Kwekwe Consolidated Gold Mines (KCMG). No evidence was led from the Ministry of Mines and Mining Development.

Evidence by the investigating officer was hearsay evidence and should have been rejected by the court.

In his ruling, the magistrate conceded that the evidence of Chakanyuka, from the Companies office, was of no assistance. He also found that Mirirai Chiremba's evidence showed his company benefitted financially and there was no prejudice on his company. The magistrate found that there was evidence that the applicant improperly and fraudulently acquired directorship and control of Kwekwe Consolidated Gold Mines (KCGM).

From a reading of the magistrate's ruling, there is no evidence that the applicant committed the offence he was charged with.

A specific charge was put to the applicant but the magistrate seems to be of the view that the evidence led so far prima facie establishes guilty of fraudulently acquiring directorship of Kwekwe Consolidated Gold Mines (KCGM).

The charge put to the applicant herein involves misrepresentation to Carslone Enterprises (Pvt) Ltd that he was a director of Kwekwe Consolidated Gold Mines (KCGM) causing prejudice to the good reputation of Carslone Enterprise, Registrar of Companies office, and the Ministry of Mines.

No evidence was led to show prejudice of good reputation of the three entities.

I am satisfied that the evidence led did not prove a prima facie case against the defendant warranting him being put to his defence.

Whilst it is correct that in terms of section 157 of the Criminal Procedure and Evidence Act it is not necessary to identify the persons who have been defrauded, in this case such persons were mentioned. It became essential to prove the elements of the offence vis-a-vis those persons, which the respondent failed to do.

No misrepresentation were proven to have been made to Carslone Enterprises.

I am satisfied that to allow the applicant to be placed on his defence would irreparably prejudice him. The magistrate's ruling is tantamount to placing the onus on the applicant to prove his innocence. The Constitution has already placed the onus on the State to prove the guilt of an accused person. See Ndlovu v Regional Magistrate, Eastern Division and Anor 1989 (1) ZLR 264 (H) and Makamba v Sithole N.O. and Anor HH83-04.

The decision by the trial magistrate is not supported by evidence led and hence it is unreasonable. In fact, the decision is completely wrong consideration being had to the evidence submitted before the magistrate. I am of the view that the decision defies all logic and is completely wrong.

In the result, the application succeeds and it is ordered as follows;

(1) The decision of the second respondent, of dismissing the applicant's application for discharge at the close of State case, under case number R874/12, be and is hereby set aside.

(2) Applicant is discharged and acquitted at close of State case.

(3) There be no order as to costs.

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

The five accused persons were charged with criminal abuse of duty as public officers as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations against them were that between 3-23 May 2017, at ZINARA, the five accused had unlawfully, and in common purpose with each other, in the exercise of their functions and contrary to their duties as public officers, engaged third party companies to source foreign currency on the informal market on behalf of ZINARA.

This was in their capacities as Finance Director, Finance Manager, Accountant, Regional Engineer North, and Director Administration and Human Resources of ZINARA.

The companies in question whom they were said to have sourced were Access Finance (Pvt) Ltd, Grayriver (Pvt) Ltd, and Caudless Trading (Pvt) Ltd.

The five accused were said to have made payments amounting to US$2,940,558=69 to these three companies as consideration towards the servicing of a loan owed by ZINARA to the Development Bank of Southern Africa (DBSA) without authority of ZINARA Board of Directors for the purpose of showing favour to these three companies.

The first accused, Simon Mudzingwa Taranhike is the Finance Director of ZINARA. The second accused, Shadreck Matengabadza is the Finance Manager. The third accused, Stephen Matute, is the Accountant. The fourth accused, Givemore Tendai Kufa, is the Regional Engineer North, whilst the fifth accused, Precious Murove, is the Director Administration and Human Resources of ZINARA.

Each pleaded not guilty to the charge.

Their core defence was that the payments were not made on behalf of ZINARA but on behalf of Infralink (Pvt) Ltd (Infralink), and that, as such, ZINARA lacked locus standi in the matter.

Their resultant standpoint was that they could not have abused their duties as public officers when they were transacting on behalf of the private company.

Furthermore, they argued, that, in view of the circumstances surrounding the payment of the monies in settlement of the loan, the ZINARA Board itself, through its lawyers, had since withdrawn charges....,.

They also drew attention, in their defence, to the letter written to the National Prosecuting Authority by their lawyers on behalf of the ZINARA Board, prior to the commencement of the trial.

The letter highlighted that the Board was never appraised of the criminal charges against its officers. Furthermore, there was no Board resolution from ZINARA authorising anyone to institute a criminal report. It additionally highlighted that ZINARA and Infralink are, at law, two separate legal entities and that ZINARA had no locus standi.

The letter equally emphasised the context under which the payments had been made, and, in particular, the dire contractual consequences of failure to pay. It concluded that:

“The ZINARA Board fully accepts that it is lawfully bound to assist the National Prosecution Authority in combating corruption and criminal conduct and would not spare any effort or resource in supporting the prosecution of a deserving case. However, the ZINARA Board's impartial consideration of the facts at hand has prompted the need to alert the National Prosecuting Authority on the needless damage that may arise to the standing of ZINARA in circumstances where, in its view, no palpable wrong was done.”

The State took a different view.

It proceeded on the basis of being the dominus litis, and, that, the accused persons had a case to answer.

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

Whether the confirmed warned and cautioned statement by the appellant was admissible evidence

The appellant and his co-accused were arrested on 1 April 2011. Four days later, on 5 April 2011, the investigating officer recorded a statement from the appellant after duly warning and cautioning him on his rights.

On 12 April 2011, the appellant was taken before a magistrate for the confirmation of the statement. He successfully challenged the confirmation of the statement on the basis that the statement was not his and that he had not made it voluntarily.

The confirming magistrate correctly declined to confirm the statement.

However, without citing any law for his decision, the magistrate thereafter ordered the appellant and the investigating officer to record a second statement.

The second statement was recorded the following day and was confirmed on the same date.

In challenging the second statement during the trial a quo, the appellant alleged, that, he had been threatened by the investigating officer with assault if the second statement was once again not confirmed. He thus did not inform the confirming magistrate that the statement was not his but that it was merely presented to him for signing.

It appears that the court a quo was not quite clear on the steps to take in dealing with the challenge.

The admissibility of the statement was challenged in the Defence Outline and orally in court when the prosecution tendered the statement with the other exhibits at the commencement of the trial.

In a terse, but correct ruling, the court a quo provisionally admitted the statement into evidence with the other exhibits and placed an onus on the appellant to rebut the admissibility of the statement.

The court was correct in provisionally admitting the statement into evidence, as, on its face, there was nothing irregular.

During the State case, the investigating officer gave evidence on how he had recorded the statements from the appellant, and, during his evidence-in-chief, the appellant in turn gave evidence on how the statement was taken.

He maintained his stance that the statement was not his as certain portions of it were insertions by the police.

In the main judgment, the court a quo held, that, the appellant, through his counsel, had withdrawn his objection to the admission of the statement into evidence.

This was contrary to the evidence on record.

And, to confirm the uncertainty that the court a quo appears to have been operating under regarding what to do with the challenge to the statements, it initially held that it was unnecessary for it to establish whether or not the second statement had been voluntarily made by the appellant as the appellant had withdrawn his objection to the admission of the statement.

Moments later, it observed that:

“Although the warned and cautioned statements were produced by consent after the accused had withdrawn their objections, it is in my view necessary to deal with the accused's evidence of the alleged duress because of the continued reference to the statements by the accused persons. Mr Mushonga submitted that the accused were not challenging the confirmation of the statements per se but the decision by the magistrate to confirm a new set of statements.”

The court then proceeded to find that the appellant had not been unduly influenced in making the statement.

The law on the admissibility of confirmed statements is codified. It is settled.

Section 256(2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in section 113(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof.

However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.

In a long line of decided cases, the steps that a court must take where an accused person challenges a confirmed warned and cautioned statement is settled. It is this:

Where the accused raises a potentially sustainable challenge to the propriety of the confirmation proceedings, the court is obliged to determine the validity of that challenge as a separate issue of fact.

The onus is on the State to prove the absence of any irregularity.

If the State discharges the onus, the statement is provisionally admissible and the onus shifts to the accused to rebut the presumption that the statement is admissible.

The onus of proof, on the accused, is to prove, on a balance of probabilities, that, the statements are inadmissible.

If the accused's challenge is upheld, the onus remains on the State to prove, beyond a reasonable doubt, that the accused made the statement and that he made it freely and voluntarily: see S v Woods 1993 (2) ZLR 258 (SC); S v Slatter and Others 1983 (2) ZLR 144; S v Manukwa and Others 1982 ZLR 30 (SC); and S v Gwaze & Anor 1978 RLR 13…,..

Against the yardstick set by the above authorities, the court a quo erred in many respects which I will not fully go into.

Primarily, as this was its ratio decidendi, the court a quo erred in holding that the appellant had withdrawn his challenge to the statement.

The record indicates that the appellant consistently denied having made the statement which he alleged was a confession to the offence.

The court a quo was aware, that, right up to the end, the appellant challenged the statement attributed to him. He thus “continued to make reference” to the irregularity of the statements throughout the trial as rightfully observed by the court a quo in its judgment.

In the absence of consent to the admission of the statement, the court a quo had to make a finding of fact on whether or not the statement was admissible evidence.

This it did not do.

I must make the point, that, contrary to the finding by the court a quo, that the confirming magistrate did not err in directing the police to record a statement from the appellant afresh, the recording of the second statement from the appellant was irregular and must be set aside.

The court a quo was of the view, that, since the appellant had not advanced any law that precluded the recording of the statements afresh, the order by the magistrate was proper.

Such a law is easy to find and ought to have presented itself to the court a quo.

The recording of extra curial statements from the accused is part of the investigation of the alleged crime. It is an exercise that falls wholly within the domain and discretion of the police. They, and not the court, elect whether or not to record a statement from the accused.

In our legal system, which is adversarial, and the magistrate or judge is a neutral umpire, the magistrate, or judge, has no role or place in the investigation of matters that come before the court.

Therefore, he or she cannot direct the investigation of the alleged crime at any stage.

It matters not that he or she will not tell the accused person on what to say in the statement as was contended by the court a quo. The bottom line is that the court has no power, whatsoever, to direct the police to record a statement from the accused person at any stage of the investigations or of the trial.

It is thus over-reaching of grave proportions for confirming magistrates to direct the police to record second statements from accused persons after declining to confirm the first statement.

Even if the statement that is eventually recorded from the accused is exculpatory, the bottom line is that a directive by the court, to the police, to record a statement from the accused is grossly irregular and so is the statement that is recorded pursuant to such a directive.

I note, in passing, and for the benefit of the Chief Magistrate, that, the directive to the police by the confirming magistrate in casu appears similar to one that was issued by the confirming magistrate in Mangoma v S SC36-20 in which this Court also set aside the statement.

The police may feel obliged to comply with such directives which not only have no basis in law but may violate the rights of an accused person to a fair trial.

I do not think that it is necessary to burden this judgment with a discussion on whether or not there is a law that precludes the police from recording a second set of statements from an accused person after the confirmation of the first has been declined.

It however presents itself clearly to me that the recording of a statement from an accused person by the police, whether first or subsequent, at the instance of, and in fulfilment of a directive of the court, is grossly irregular.

It is therefore my finding that the court a quo erred in admitting into evidence the statement by the appellant on the basis that it was adduced by consent.

There was no such consent.

Had the court a quo followed the approach laid out in the authorities cited above, it would have found, as I do, that the recording of the statement was irregular as it was at the instance of the court.

The confirmed statement by the appellant, dated 13 March 2011, must be struck off the record, and, any reference to its contents be expunged from the evidence.

The finding that I make above must apply with equal force to the statement made by the appellant's co-accused on the same date. This is so notwithstanding that he is not a party to this appeal. His statement was recorded in similar irregular circumstances.

I now turn to the second issue.

This is whether, after expunging from the record the evidence that was in the statements by the appellant and his co-accused, there remains sufficient evidence implicating the appellant in the murder of the deceased.

Whether the appellant was properly convicted of murder

The appellant and his co-accused were charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The section defines murder in the following terms:

“47 Murder

(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realising that there is a real risk or possibility that his or her conduct may cause death; and continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Thus, under the section, it is not necessary, as was the position under the common law, to find the accused guilty of murder with either actual intent or with constructive intent. Put differently, it is not necessary under the Criminal Law (Codification and Reform) Act (the Code) to specify that the accused has been convicted under section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act.

Killing or causing the death of another person with either of the two intentions is murder as defined by the section.

It further appears to me, that, the distinction between a conviction of murder with actual intent and murder with constructive intent, which, under the common law, greatly influenced the court in assessing sentence, is no longer as significant or material as it was.

The sentence to be imposed for murder committed with the intent, specified in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act, has also been codified as I shall show below.

In framing his fourth ground of appeal, which gives rise to the issue under discussion, the appellant had this to say:

“4. The court erred in adopting an armchair approach in adopting and applying the circumstantial evidence doctrine and make unsubstantiated inferences which are not supported by evidence that the appellant killed the now deceased. The appellant had no intention to kill or to cause whatever harm to the now deceased. The now deceased drop off (sic) alive and unharmed at Marogoro (G)ame (P)ark after the boom gate.”

I temper down my criticism of the inelegant manner in which the ground was framed in recognition of the fact that the appellant noted this appeal in person and counsel took over the matter at a later stage.

Before the hearing of the appeal, counsel could, however, have amended the ground to make it conform to the rules of this Court in terms of clarity and precision.

Nothing, however, turns on this.

I understood the ground to be an attack on the finding a quo that the appellant and his co-accused had killed the deceased with actual intent.

During the hearing of the appeal, counsel for the appellant made two concessions which have a direct bearing on the second issue in this appeal.

(i) Firstly, he conceded, that, the court a quo properly found, on the evidence that was before it, that notwithstanding that his remains were never found, Alneshto Bayeta was dead at the time of the trial.

(ii) Secondly, he conceded, that, the only reasonable inference that could be drawn from the facts of this appeal is that the deceased died after being left by the appellant and his co-accused in the game park.

He thus conceded that the deceased died at the hands of the appellant and his co-accused.

He however urged us to find the appellant guilty of murder with constructive intent at most or guilty of culpable homicide, instead of guilty of murder with actual intent as was found by the court a quo.

Both concessions were properly made.

The facts that are common cause in this appeal, and which I captured in the background to this appeal above, come largely from the appellant and his co-accused.

In explaining their possession of Leonard Mhundwa's motor vehicle, the appellant and his co–accused gave the only account that is before the court of what happened from the time they purported to hire the deceased's vehicle in Chirundu to the point where they left him, 42 kilometres away, on the Harare-Chirundu Road in the middle of the game park.

It is common cause, that, when they hired him, Alneshto Bayeta was alive.

He has not been seen since.

His torn and blood stained clothes were recovered along a spoor down a slope in an animal-infested game park.

The only reasonable inference, in part, to be drawn from these facts, is that Alneshto Bayeta is dead.

It is on the above basis that I accept the first concession by the appellant's counsel as having been properly made.

Alneshto Bayeta is dead.

It is further common cause that the remains of Alneshto Bayeta were never recovered. The precise cause of his death will remain unknown.

What is common cause, however, as indicated above, is that he was alive at the time the appellant and his co-accused robbed him of the vehicle that he was driving.

He died thereafter.

The appellant and his co-accused admit to setting in motion a series of events that caused the death of Alneshto Bayeta.

There was direct evidence before the court a quo that the deceased's blood-stained and torn clothes were found along a spoor that started 20 metres down the slope where the appellant and his co-accused admit leaving the deceased.

The inference by the court a quo, that it was the body of the deceased that was dragged along the spoor, cannot be faulted.

The fact that the spoor started some 20 metres down the slope has exercised my mind to a large extent.

What reasonable inference is to be drawn from this fact other than that the deceased, or his body, was thrown 20 metres down the slope?

The possibility that the deceased may have wandered down the slope in the darkness after being ejected from the car is not only fanciful but is also born of my own imagination as the appellants did not so argue.

I reject it.

The only reasonable inference that one draws from the starting point of the spoor down the slope is that the deceased, or his remains, were thrown 20 metres down the slope.

It is therefore my finding, that, beyond reasonable doubt, the deceased, or his remains, were thrown 20 metres down the steep slope.

Quite apart from the finding that I make above, and in addition thereto, there is no disputing the fact, that, in all that they did on the night in question, the appellant and his co-accused must have realised that there was a real risk or possibility that their conduct might cause the death of the deceased, and, notwithstanding that risk or possibility, continued with such conduct.

The appellant's counsel has submitted that the appellant acted “recklessly.”

The appellant's conduct went beyond “recklessness” or gross carelessness.

He must have realized and foreseen the real risk or possibility of death arising from his conduct right from the time he and his co-accused robbed the deceased of the motor vehicle. He did not desist from such conduct at any stage.

It is on the basis of the above that the concession by the appellant's counsel, that the appellant and his co-accused be found guilty of murder “with constructive intent”, inapplicable as that verdict may be, was properly made.

By the same token, having accepted that the appellant acted recklessly in causing the death of the deceased, the submission that the appellant be found guilty of culpable homicide becomes untenable and must be rejected.

It is therefore my finding, that, on the evidence that was common cause, and without in any way relying on the appellant's warned and cautioned statement, the appellant and his co-accused were properly convicted of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: CHIRAWU-MUGOMBA J

The applicant was, on the 29th of September 2013, convicted by this court of murder in terms of section 47(1)(a) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. He was sentenced to 25 years imprisonment.

On 6 June 2018, he filed an application for condonation for late noting of leave to appeal against both conviction and sentence.

In his explanation for the delay, three factors have been proffered by the applicant;

(a) That, he lost contact with the legal practitioner who represented him at the trial.

(b) That, he faced difficulties in accessing the record of proceedings even when he had engaged legal practitioners. The initial record supplied was not a complete one; and

(c) He faced financial constraints.

The applicant averred, that, he has good grounds of appeal against conviction in that the magistrate who confirmed his warned and cautioned statement erred in accepting that it be re-drafted.

He alleged that he challenged the initial confirmation of his warned and cautioned statement since he had been tortured by the police. He alleged that the indications made at the scene of the crime were stage-managed.

Further, that, apart from the warned and cautioned statement, there is no other evidence that links him to the offence.

The evidence, in his view, points to a verdict of murder with constructive intent in view of the circumstantial evidence.

With regard to sentence, the applicant averred, that, although he accepts that the court has discretion; in his case, the court failed to place due weight on the fact that he was a youthful offender who was aged 20 at the time of the commission of the offence. He thus deserved mercy and leniency as he could be rehabilitated.

The above largely forms part of his draft Notice of Appeal.

The respondent is not opposed to the relief sought and proffered three reasons as follows;

(a) The court based its ruling on circumstantial evidence since no body was found, and, another court may draw different inferences....,.

The proposed grounds of appeal, in relation to the conviction, are based on three factors, namely;

(i)...,.

(ii) Circumstantial evidence;...,.

The court dealt extensively with the issue of circumstantial evidence.

It concluded that the deceased was left by the appellant and his co-accused in Marongoro Game Park which they knew was infested with wild animals. Clothes belonging to the deceased were found and the only conclusion that could be drawn from the facts is that he had died.

The court admitted that it relied on circumstantial evidence.

The court placed reliance on the reported decision in S v Shoniwa 1987 (1) ZLR 215 (S) in which the late DUMBUTSHENA CJ…, stated as follows…,:

“The law is that, on a criminal charge, the fact that a person was murdered can, like any other fact, be provided by actual evidence or circumstantial evidence if that evidence leads to that conclusion of fact, although no body or corpse was found.

The court must, as in any other criminal case, be satisfied, beyond reasonable doubt, of the guilt of the accused person.

In order to convict a person where no body has been found, there need be no confession establishing the guilt of the accused. There must be, however, sufficient evidence to establish the corpus delicti. That evidence can be wholly circumstantial provided it is sufficient to preclude every reasonable inference of the accused.”

The totality of the evidence led could only lead to the reasonable inference that the appellant and his co-accused left the deceased to die.

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

The two accused persons are brothers. They were jointly charged with the murder of Jokonia Choga Muunganirwa at Chemhanza Hill in Chevakadzi Resettlement Area in Bindura on 31 January 2010. They were alleged to have caused his death by assaulting him indiscriminately all over his body and stoning him on the ribs and head.

The State called the evidence of eight witnesses, one of which was impeached, and produced a total of 17 exhibits consisting of 5 physical and 12 documentary exhibits.

Each accused person testified on his own behalf and both called the evidence of the nurse in charge of Bindura Prison camp and produced one documentary exhibit.

The Missing Man and Common Cause Evidence

The events leading to the alleged murder started at Billabonge Farm, situated some 14km from Chevakadzi Resettlement area in Bindura.

On some undisclosed date in 2009, two aluminium pipes went missing from the farm, and, in January 2010, a further four were stolen from the same farm. The farm owner set up a team of undercover investigators consisting of employees of various grades drawn from his security guards and general workers. They were tasked to investigate blacksmiths and welders in the surrounding villages and resettlement areas who were perceived, by virtue of their craft, to be the consumers of aluminium pipes.

The first accused was a welder who used aluminium solder to repair metal utensils.

The deceased and his wife, Faith Shonhiwa, were co-opted into the team, and, in consequence, sometime in January 2010, the wife took a black pot with a finger sized hole at the bottom for repair to the second accused's homestead.

Prior to her visit, her employer and the police, in a bid to apprehend Accused 1, unsuccessfully raided his homestead. In order to allay any suspicion from the occupants of Accused 2's homestead she deliberately misled Accused 2's pregnant wife that she hailed from Kerry and not Billabonge Farm. She left the pot in her custody.

On Friday, 29 January 2010, the deceased left Billabonge Farm. He was wearing a white shirt, black pair of trousers, scotch-checked cap, black pair of gumboots, and blue work suit jacket and grey suit jacket.

He took his 12 year old nephew Edmore, destined for Kerry Farm, with him to his communal home. He was expected back on Sunday 31 January 2010. He was tasked to collect the pot from Accused 1's homestead.

That Sunday, at around 2pm, he parted company with his nephew at Kerry Farm and proceeded to Chevakadzi Resettlement area to collect the pot.

The Defence Outline of Accused 1 and the evidence of a ritual friend to the accused persons, Pias Muchambo, established that he arrived at Accused 1's tuck-shop in Chevakadzi Resettlement area. He was directed to the first accused's homestead from where he collected the black pot.

Pias Muchambo stated, that, the man who arrived at the tuck shop was wearing a yellow shirt, khaki pair of trousers, and carried a sack.

He asked for directions to Accused 1's homestead.

Accused 1, who together with Accused 2, the witness, and other patrons were drinking beer at the tuckshop, attended to the man some 4m away from Pias Muchambo.

Pias Muchambo heard the two men discussing about a pot.

Thereafter, the man took the direction to Accused 1's homestead and was soon followed by both accused persons.

The man was never seen again. He did not return to his wife at Billabonge Farm.

The missing man's family and workmates conducted a search for him but failed to find him.

On 5 February 2010, the man's wife and four security guards visited Accused 2's homestead where they found Accused 2, his wife, and mother and members of the apostolic faith celebrating the birth of a baby.

The mother berated her daughter-in-law for accepting the black pot and failing to refer the man's wife to Bhobho, the local blacksmith. She turned her ire on the man's wife for allowing herself to be used by the farm owner of Billabonge in his bid to get her sons arrested and pretending to be from Kerry Farm.

She intimated that Accused 2 had observed her movements on the day she left the pot and threatened her with harm if she ever visited her son's homestead again. She however indicated that her pot had been collected by an elderly man on the preceding Sunday but declined to describe him further.

In the result, she made a missing person report at Bindura police station on 8 February 2010.

Two detectives accompanied her to Accused 2's homestead and questioned the mother about her outburst on her last visit. The police managed to collect some aluminium pots and pieces of pipe which they took to the police station but failed to get any information on her missing husband.

It was common cause that the missing man's relatives mounted a big search for him.

On 14 and 15 February 2010, they co-opted the village head of the two accused's village, Mhedziso Jenje. They conducted the search in his village and concentrated their focus in the vicinity of Accused 1's homestead. The second accused and a group of local youths participated in the search on the second day.

The missing man was not found.

On 13 March 2010, members of the Bindura CID team consisting of Detective Sergeants Trymore Mutambi, Leonard Karemba, and Niverd Charuma descended on Accused 1's homestead. The two accused persons were not present. They took their mother and young brother, Simbarashe Ackim, to the police station for questioning and left word with the village head for the two to report at the police station.

On the next day, the two went to the village head's home before proceeding to the police station. They were detained and their mother and young brother were released.

The two accused persons were subjected to intensive interrogation by the investigating team.

On 15 March 2010, the two accused and seven detectives in plain clothes and one uniformed police officer drove in a Mitsubishi truck to Accused 1's residence and then a further 4kms to Chemhanza Hill. The truck was driven by Detective Sergeant Mutambi and the two accused were in the back pan with other detectives.

At Chemhanza Hill

The events that took place at Chemhanza Hill were hotly disputed by the two accused persons.

The investigating officer, Detective Sergeant Mutambi and Detective Sergeant Karemba's version of events was confirmed by the Village Head, Mhedziso Jenje and his aide, Black Chihumo.

The two villagers stated, that, the two accused persons did not exhibit any signs of physical discomfort and mental strain during the drive and at the scene. They did not observe any visible injuries on either of them. They appeared to be in good health.

They formed the opinion that the two acted out of their own free volition.

They were present throughout the indications and heard the words uttered by each accused person as he pointed out the different spots that were captured by the police photographer on celluloid.

The testimony of the village head and his aide was that the two accused persons led the police to Chemhanza Hill.

Accused 2 remained in the police truck while Accused 1 led the police some 20m uphill to a burnt patch of ground on which were some ashes. He pointed at the spot where a man died. He showed the stones, exhibit 7, and stick, exhibit 9 used to assault the man. He pointed out the spot where the man lay after the assaults and where his remains were burnt. He walked to the top of the hill and pointed to a cave. He then entered the cave and retrieved some bones. He emerged with a plastic bag containing bones about 7 to 8cm long which he showed to those on top of the hill and when they descended to those at the bottom of the hill where the car was parked.

The second accused also followed the same route pointing at various features along the hill slopes and rocks.

The Village Head and his aide said the second accused retrieved a flattened tin, exhibit 8, from the cleft between two rocks, a crashed black pot, exhibit 3 from on top of the hill, and pointed and picked up the stone he used, exhibit 7.

A piece of burnt rubber, which looked like the remnant of a gumboot, exhibit 4, and a piece of cloth from a worksuit were retrieved from the ashes as were somemore bones.

Each accused person picked the stone he used to hit the man and volunteered information on the part of the body where each directed his stone.

It was common cause that the photographs, exhibit 10 to 17, were all taken by Detective Sergeant Sharara.

The two detective sergeants stated how the first accused picked a 1,25m long stick he used from the ground. He was photographed, in exhibit 10, holding the 1.25m long stick, exhibit 9.

In photograph 11, he pointed to the place of killing, a burned out area with a 3 kilogramme stone and 8 pieces of bones on the ground.

In exhibit 12, he pointed to fire burnished stone weapons at the site.

He was outside the cave in exhibit 13, and, in exhibit 14, he held one of the charred bones while pointing at the remains in the cave.

In exhibit 15, he pointed to the back of the cave where the smashed pot and flattened tin were while exhibit 16 were tree stumps from which firewood was cut.

They both indicated that Accused 2 in turn pointed to the same features that were pointed out by Accused 1.

Exhibit 17 showed Accused 2 holding the stone he used and pointing to the stumps of cut firewood that was used to burn the remains.

The photographs did not reveal any visible signs of assault on each of the accused persons.

Detective Sergeant Karemba indicated, under cross examination, that, the missing man's family called the aid of a spirit medium in their search of the missing man. He was adamant that the accused, and not the spirit medium, led them to the Chemhanza Hill where the recoveries were made.

The evidence of Dr Lawrence Hlatwayo of Bindura Hospital established that the charred bones were human bones and not animal bones.

He indicated, that, they were thicker than bones of such animals as monkeys and baboons that are regarded as second cousins to humans, designed as they were to withstand gravity in the upright posture.

He identified the phalange, tibia, and fibula and scapula bones that constitute the human hand and arm from the remains that were submitted to him for post-mortem.

In the absence of DNA testing and forensic equipment, he was unable to establish the cause of death from the charred remains he saw and whose remains they were notwithstanding the suggestive history that he extrapolated from the police documents attached to the request for the postmortem....,.

Counsel for the accused persons strenuously argued, that, the State had failed to establish beyond a reasonable doubt that the bones belonged;

(i) Firstly, to a human being;

(ii) Secondly, to a male; and

(iii) Thirdly, to the missing husband.

We were satisfied that Dr Hlatwayo established, that, the bones belonged to a human being. He physically examined the bones that were retrieved from Chemhanza Hill. He saw bones belonging to a human hand, the tibia and fibula and phalange and the human shoulder, the scapula and others from the vertebrae bones of the backbone.

In the absence of DNA testing, the doctor was unable to say whether they belonged to a male or female. He could not say they belonged to the missing husband nor establish the cause of death.

It was common cause, that, there was no direct evidence to establish the identity of the person to whom the bones belonged, the cause of death, and the perpetrators, if any, who might have killed that person.

Both State and defence counsel submitted, that, answers to these questions must perforce rely on the circumstantial evidence led during the trial.

Counsel for the State submitted, that, the circumstantial evidence established that the charred remains belonged to the missing husband, the cause of death was the malevolent force directed to his person and the perpetrators were the accused persons.

In S v Nyamayaro 1987 (2) ZLR 222 (S)…, KORSAH JA cited with approval the sentiments of WATERMEYER JA in R v Blom 1939 AD 188…, that:

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.

(2) 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.”

In our view, the State has proved, beyond a reasonable doubt, that, the missing husband collected his pot from Accused 1. The two accused persons were last seen following him to Accused 1's homestead. The pot that he collected from Accused 1 was positively identified by the hole at the base by the deceased's wife as the one that was collected by her husband.

On the indications of both accused persons, the pot was recovered from atop Chemhanza Hill.

The accused persons, in turn, pointed to various places on the hill and gave information, as they did so, of how the deceased came to Chemhanza Hill. They pointed out the weapons used, the 1.25m long stick, exhibit 9, and two stones weighing 3kg each, exhibit 7. They demonstrated how the first accused fell the deceased to the ground before crashing his ribs with the 3kg stone and how Accused 2 finished him off with a skull crunching strike to the head with the other stone of the same weight.

They pointed at the trees they cut and the spot they set the corpse on fire. They pointed out the tin they used to carry some of the charred bones in. They pointed out a cave on top of the hill where they deposited them. They pointed the spot where they threw the pot and tin. Apparels similar to those worn by the deceased were recovered from the scene.

All these were established by the State beyond a reasonable doubt.

That the charred remains belonged to the missing husband was consistent with these proved facts.

The cause of death by the blows delivered to the ribs and head was established by the information the accused gave that accompanied the pointing out.

The stones, exhibit 7, were pointed out by the accused persons and recovered.

These proved facts exclude every other reasonable inference which could be drawn on the cause of death and identity of the owner of the bones and the purveyors of that death.

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J

On 12 January 2019, three accused Thabane Ngwazani, Evans Munotumaani and George Ndimani being Accused 1, 2 and 3 respectively appeared before the Provincial Magistrate sitting at Mutare facing stock theft charges as defined in section 114(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], where the State alleged, that, on 31 December 2018, and at Village 12 Nyamajura, Odzi, Thabane Ngwazani, Evans Munotumaani and George Ndimani, one or all of them unlawfully took a brown heifer which was stray, the owner of which is yet to be established, knowing that the stock was stray or realizing that there was a real risk or possibility that the stock might stray (sic) and intending to deprive permanently the unknown owner.

The State Outline was structured as follows:

The complainant in this case is the State represented by Maxwell Nyamavanga, a male adult aged 36 years residing at Village 12 Nyamajura, Odzi and he is not employed.

Accused 1 is a male adult residing at Nyamatsine Business Centre, Odzi and he is not employed. Accused 2 is a male adult residing at Plot 45 Alma Farm, Odzi and he is employed as general worker at Plot 45 Alma Farm, Odzi. Accused 3 is a male adult residing at Village 12 Nyamajura, Odzi and he is not employed.

On a date to the prosecutor unknown, but during the month of August 2018, at Plot 45, Alma Farm, a brown stray heifer joined herd of cattle being herded by Accused 2. Accused 2 advised his employer, Lovemore Manyati, and other local neighbours, namely, Fidelis Mutupe and Shephard Khaza. Accused 2 and his employer decided not to register the brown stray heifer as a found stock with the police.

Accused 1 approached Accused 3 looking for a buyer of a brown heifer. Accused 3 found a buyer.

On 31 December 2018, Accused 2 took the heifer to Accused 3's kraal in Village 12 Nyamatsine, Odzi. Accused 1 sold the brown heifer to the buyer brought by Accused 3.

On 2 January 2019, Maxwell Nyamavanga reported the case at ZRP Odzi, and, Accused 1, knowing that a case was reported, went to the person who had bought the heifer, repossessed the heifer, and returned it to Accused 2's homestead on 8 January 2019. The value of the stolen heifer was $600 and was recovered.

Accused 1 and 3 pleaded not guilty and Accused 2 pleaded guilty. There was a separation of trial and the trial court put the following questions to the accused after facts had been read to him:

“Q. Understand and agree with the facts?

A. Yes.

Q. So, is it correct that on 31 December 2018, at Village 12 Nyamajura, Odzi, you took a stray cattle as alleged?

A. Yes.

Q. You had the owner's consent to take it?

A. No.

Q. You intended to deprive the owner permanently of the cattle?

A. Yes.

Q. You knew that your conduct was unlawful?

A. Yes.

Q. Any defence?

A. No.

Verdict: Guilty as charged.”

The learned Provincial Magistrate, in his reasons for sentence, indicated that there were special circumstances in that a stray bovine which the accused was keeping, and the accused decided to sell it after the death of his father so he had urgent need for money to attend to his father's funeral. He concluded that the circumstances are special because there was a huge temptation on the accused to dispose the bovine which he was keeping but whose owner he did not know.

The accused was sentenced to 4 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition within that period accused does not commit any offence involving dishonesty and for which the accused will be sentenced to imprisonment without the option of a fine.

The facts of this matter raise a number of issues which render the conviction open to attack.

I am not satisfied with the propriety of the conviction of the accused.

The charge sheet shows that the owner of the heifer is yet to be established and the charge ends alleging that the accused intended to deprive permanently the unknown owner.

The State Outline states that the complainant is the State represented by Maxwell Nyamavanga.

Maxwell Nyamavanga is the one who filed a report of stock theft at Odzi Police Station. The pertinent question is: can that make him the complainant?

If he was the complainant, why did the State allege, on the charge sheet, that the possessor or the owner was unknown, and why did the State not allege that the heifer belonged to the State?

At the time the heifer was allegedly stolen, who was the owner or possessor of that heifer?

The State Outline shows that the accused, Evans Munotumaani was employed by Lovemore Manyati. Thabane Ngwazani is the one who sold the heifer and met Evans. Evans Munotumaani delivered the heifer to George Ndimani. When the matter was reported to the police, Thabane Ngwazani repossessed the heifer from the buyer, drove it and dumped it at Evans Munotumaani's place of employment on 8 January 2019.

It is obvious that Thabane Ngwazani did that to avoid arrest by the police since he was the one who sold the bovine beast.

It is not clear as to when Evans Munotumaani sold the beast to fund his father's funeral; the issue of funding the funeral surfaces when the learned trial Magistrate was dealing with special circumstances.

It is not clear on the facts nor on the encompassing of the essential elements for stock theft as to when Evans Munotumaani committed the crime.

It is trite law, on special circumstances, that they should not be peculiar to the offender but extraordinary to the crime.

It is not out of reach to conclude, that, the trial court sweated to find special circumstances because it was aware that the conviction was not proper so had to pass a lenient sentence.

It is also possible that Evans Munotumaani was sacrificed by the employer and implicated to protect Mr Manyati. How could an employee sell a beast without the owner of the herd's knowledge?

These issues could have been exposed if the essential elements were well traversed.

In the matter of S v Machokoto 1996 (2) ZLR 190 (H) GILLESPIE J and CHINHENGO J were confronted with virtually an identical situation as in this case and at p201G-H his Lordship GILLESPIE J had this to say:

“In, Hunt South African Criminal Law and Procedure Vol II, Common Law Crimes 2nd ed by MILTON at p602, theft is defined as the unlawful contracratio with intent to steal a thing capable of being stolen. This definition is accepted as accurately embodying the cardinal elements of the offence. It involves four essential elements – the taking; the unlawfulness; the intent; and the fact that the property was capable of being stolen.

Obviously, these four elements can be, and most frequently are, explained to the accused by three questions:

Q. Did you take this property?

Q. Did it belong to the complainant?

Q. By doing so, did you intent to deprive him permanently of his ownership?

A fourth question:

Q. Did you have any right to do so? is usually and often unnecessarily added.

These questions, it must be said, by no means necessarily constitute a proper explanation of the essential elements in all possible circumstances in which a theft might be committed and charged.

Had the magistrate used this formula, however, he would surely have stumbled upon the defect in the charge which is mentioned by CHINHENGO J, namely, the unstoppable averment that the alleged stolen animals were the property of the State.

However, leaving aside that point, which needs no further remark by myself, these questions even had they been put, are by no means such that they would have constituted adequate explanations of the essential elements of this particular charge.

The facts of this case provide an exemplary lesson in the need to adopt one's questioning by way of explanation of the charge, to the individual circumstances of the case.”

On 31 December 2018, Evans Munotumaani did not sell the heifer to the buyer. It is not clear as to when Evans sold the beast to Thabane Ngwazani, and it is not explained to the accused, Evans, why Thabane Ngwazani returned the heifer to Evans Munotumaani.

All this explanation ought to have been sought during the covering of the essential elements to the charge; had the court a quo exhaustively explained all these aspects to Evans Munotumaani, the court would have detected the problem.

Evans Munotumaani heralded to the neighbours about the heifer, his employer kept it openly, and, moreso, where the State alleged that the owner was not yet established, possession by the accused was bona fide.

It cannot be ruled out that the heifer could have been abandoned: see S v Machokoto 1996 (2) ZLR 190 (H)…,.

In any case, if the facts clearly pointed to the guilt of Evans Munotumaani, the question is why did the State decide to join the other two (2) accused? What was it that they did to be implicated?

And since the accused, Evans Munotumaani, was not legally represented, this aspect was supposed to be clarified by the trial court.

On p204B in S v Machokoto 1996 (2) ZLR 190 (H) the court concluded:

“It follows that if the accused genuinely, even if wrongly, believes an animal to be abandoned or without owner, then, he may assert a claim of right as a defence to the charge of theft. More than that, if such was his state of mind, than he is properly to be regarded as a bona fide possessor of the animal and thus entitled to its fruits. This provides a defence to the charge relating to the second of progeny of the first; the defence here is not based so much on a claim of right but on the circumstances that the animal cannot be stolen, since it is properly that of the accused.”…,.

The accused was but an employee at Plot 45 Almar Farm and this was public knowledge - even to the co-accused. The court wonders why the employer was not charged as well if the conduct of this employee was blemish.

It is apparent to the court that there are a number of grey areas which clouds the conviction of the accused in this case and the charge as well as the facts are fatally defective.

Setting aside the conviction on the charge ought to be regarded as an acquittal on the merits.

The conviction should be set aside on this basis and substituted by the following:

Accused is found not guilty and acquitted.

A warrant of liberation is hereby issued.

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Law Portal
Zimbabwe

Indictment or Charge re: Identity of Aggrieved, Complainant or Victim, Corpus Delicti and the Presumption of Death

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: CHIRAWU-MUGOMBA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J

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Law Portal Zimbabwe

Indictment or Charge re: Identity of Aggrieved, Complainant or Victim, Corpus Delicti and the Presumption of Death

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA Ruled By: BHUNU J

HH528-16 : THE STATE vs PATRICK MOYO Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA Ruled By: MATANDA-MOYO J

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: CHIRAWU-MUGOMBA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HMT07-19 : STATE vs EVANS MUNOTUMAANI Ruled By: MUZENDA J and MWAYERA J

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Law Portal
Zimbabwe

HH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH438-18 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: CHIRAWU-MUGOMBA J

HH143-18 : STATE vs JAMES ACKIM and LAMECK ACKIM
Ruled By: KUDYA J and ASSESSORS: MHANDU and CHIVANDA

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J