MATHONSI J: On 27 December 2001 a serious armed robbery was
committed at Johannesburg International Airport, South Africa in which cash and
jewellery worth ZAR 117 million were stolen.
Some of those suspected of having committed the offence were believed to
had crossed the border into Zimbabwe where they were believed to be hiding and
spending the proceeds of the robbery.
The South African Police sought the
assistance of their counterparts in Zimbabwe, the Zimbabwe Republic Police, in
tracking down the suspects and bringing them to book. This resulted in meetings being held between
the two groups of law enforcement agencies at Bulawayo Provincial Headquarters
in January 2002 on the issue and strategies being put in place to investigate
the matter and arrest the suspects.
Names of those suspects were
provided at those meetings and they included Khulekani Ncube alias Davida Ncube
and Ngoneni Mafu alias Sotsha Mafu. The
appellant was then a superintendent in the Zimbabwe Republic Police and the
officer commanding Criminal Investigations Department (CID) Law and Order Section
in Bulawayo. When teams were formed to
investigate the matter, he was made the overall commander of those teams.
Much later, on 31 July 2002, the
appellant had, in the course of his duties, received information that there was
a suspected armed robber who had secured sanctuary at a house in Mahatshula
suburb of Bulawayo. He put together a
team of detectives from his Law and Order Section and the Homicide Section of
Criminal Investigations Department and instructed them to proceed to the house
in Mahatshula with a view to arrest the suspect. The team was led by Detective Assistant
Inspector Refias Masuna and included Detective Sergeant Itai Jonathan Muchena.
That team proceeded to the said
house and arrested a suspect by the name Khulekani Ncube and impounded a Nissan
Hardbody motor vehicle, which had no papers to prove its ownership, as well as
a firearm. The appellant was called to
the scene and he attended in the company of one Rowen Dube, who was later to be
charged with him. After making some
inquiries from the team of officers he had sent there and from the suspect, the
appellant ordered the release of Khulekani Ncube.
The Nissan Hardbody motor vehicle
was driven to Central Police Station for further investigations but the
following day, it was released on the instructions of the appellant.
The appellant and Rowen Dube were
latter arrested and charged with corruption in contravention of section 4(a) as
read with section 15(2)(e) of the Prevention of Corruption Act [Chapter 9:16]
it being alleged that, as public officers, they had unlawfully and corruptly
released Khulekani Ncube and the Nissan Hardbody motor vehicle, registration
number 758-227J for the purpose of showing favour to the said Khulekani Ncube.
After a lengthy trial at the Regional
Magistrates' Court they were convicted on 6 October 2003 and each sentenced to
4 years imprisonment of which 2 years imprisonment was suspended for 5 years on
condition of good behaviour. Unhappy
with the outcome the appellant filed an appeal to this court on 23 October 2003
against both conviction and sentence on the following grounds:
“AD
CONVICTION
1. The
learned magistrate erred in law in failing to find that the basis for arresting
Khulekani Ncube within
Zimbabwe was flawed and should have found that there
was no legal basis upon which the Zimbabwe authorities could have
authorised the police to effect an arrest.
Accordingly,
as the arrest of Khulekani Ncube was in effect unlawful then any action taken
by the appellants in effecting his release could not have been unlawful.
(2) The learned magistrate erred in
accepting the evidence of the state witnesses.
(i) more particularly as to
the appellant's knowledge of the identity of Khulekani Ncube;
(ii) the learned magistrate
erred in ignoring the inconsistency in the evidence of the two principal state
witnesses and therefore the absence of corroboration;
(iii) the learned magistrate
ought to have found that the authenticity of the alleged minutes of the meeting
between the Zimbabwe Republic Police and the South African Police Section was questionable and therefore
unreliable;
(iv) in particular the
learned magistrate erred in finding that the first appellant ever held out that
Khulekani Ncube had been cleared of involvement with the offence in South
Africa;
(v) the learned magistrate
erred in finding that at the time Khulekani Ncube was released either the first
or second appellant were aware of his identity or ought to have been aware of
his identity and the fact that he was required in South Africa.
(vi) the learned magistrate
erred in finding that release of the Nissan hardbody and the pistol was
unlawful or improperly authorised by either of the appellants;
(vii) the learned trial
magistrate ought to have found that any act carried out by the first appellant
was done lawfully and that any act done by the second appellant was done under
the lawful instruction of his superior.
(viii) the learned magistrate
overlooked the fact that Khulekani Ncube was subsequently arrested, placed on
remand and then released with no charges having been brought against him, the
South African Police service having advised that he was not in fact wanted by
them.
AD SENTENCE
The sentence imposed induces a sense of shock more particularly (in the case
for the second appellant) the sentence ought to have been ordered to run
concurrently with that imposed in CRB (sic) and that in any event a fine (as
provided by the Act) would have been appropriate coupled with a suspended
sentence”.
It
must be stated that when the appeal was filed it was filed for both the
appellant and his co-accused Rowen Dube but the latter did not pursue his
appeal. The appellant, on the other
hand, appeared in person after being granted leave to prosecute the appeal in
person.
Section 4(a) and section 15(2)(e) of
the Prevention of Corruption Act under which the appellant was charged were
repealed by Act No. 23 of 2004 and are no longer in our statute books but at
the time of the trial they were still our law.
Section 4(a) provided;
“If
a public officer, in the course of his employment as such does anything that is
contrary to or inconsistent with his duty as a public officer for the purpose
of showing favour or disfavour to any person, he shall be guilty of an offence
and liable to a fine not exceeding level 10 or to imprisonment for a period not
exceeding five years or to both such fine and such imprisonment.”
Section 15(2)(e) read:
“If
it is proved in any prosecution for an offence in terms of section 3 or 4 that
any public officer, in breach of his duty as such, did or omitted to do
anything to the favour or prejudice of any person, it shall be presumed, unless
the contrary is proved, that he did or omitted to do the thing for the purpose
of showing favour or disfavour; as the case may be, to that person.”
The appellant's first ground of
appeal is premised on the argument that he was not lawfully entitled to arrest
Khulekani Ncube and for that reason he did not act unlawfully when he released
that person. The fallacy of that
argument is self evident. Khulekani
Ncube was suspected of having committed a robbery in South Africa and
repatriating the proceeds to Zimbabwe where he was suspected of prodigally
frittering those proceeds away purchasing expensive motor vehicles for cash.
Faced with that situation the
learned trial magistrate concluded that he was covered by the provisions of
section 25(2)(e) of the Criminal Procedure and Evidence Act [Chapter 9:07]
which provides:
“Any
peace officer may, without any order or warrant, arrest any person who has been
concerned in, or against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists of his having
been concerned in any act committed at any place outside Zimbabwe which, if
committed in Zimbabwe would have been punishable as an offence, and for which
he is, in terms of any enactment relating to extradition of fugitive offenders
or otherwise, liable to be arrested or detained in Zimbabwe.”
The conclusion of the trial court in
this regard cannot be faulted. The
attempt by the appellant to rely on the judgment of Cheda J in Khulekani Ncube and Another v Minister of
Home Affairs and Another HB 50/03 (not reported) is not sustainable at all.
In that case, the court ordered the
release of Khulekani Ncube and his co-accused because the extradition of the
accused persons had taken longer than the 2 months period allowed by section 33
of the Extradition Act [Chapter 9:08] for the holding of a suspect in custody.
By any stretch of the imagination,
that judgment cannot be interpretated as meaning that the arrest of Khulekani
Ncube was unlawful. In my view, the
appellant had a duty to apprehend the suspect if he was aware that he was
wanted in connection with the armed robbery which occurred at Johannesburg
International Airport.
The appellant has submitted that he
did not know that Khulekani Ncube was wanted in connection with the robbery
when he went to Mahatshula on 31 July 2002 and that the minutes of meetings
held between the Zimbabwe police and their South African counterparts in
January 2002 were not authentic and therefore unreliable. He has maintained that any action he took
including the release of Khulekani Ncube and the Nissan Hardbody motor vehicle,
was lawful.
The court a quo made a lot of findings on the events which unfolded at
Mahatshula on 31 July 2002 and the release, the following day, of the motor
vehicle. These findings were made on the
credibility of witnesses. Having
considered the evidence of state witnesses, including Detective Assistant
Inspector Masuna, the court a quo accepted it as credible and rejected that of
the appellant and his co-accused. The
witnesses testified that the appellant had been present at the house in Mahatshula
when Rowen Dube greeted Khulekani Ncube affectionately and told the other
officers that he was one of those wanted in connection with the airport robbery
in South Africa. The court believed them
and disbelieved the appellant.
At page 18 of its judgment the court
a quo reasoned:
“For
these reasons the court will not attach any due (sic) weight to the first
accused's (appellant) contention that Masuna had a reason or cause or motive to
falsely implicate him. This would mean
Masuna told the court the truth that he found accused person with Khulekani
Ncube the following day of the 31st of July 2002 when he ordered him
to release the vehicle.
The
first accused's attempt to deny being seen with Khulekani Ncube on this day by
Detective Assistant Inspector Masuna besides affecting his credibility is also
inconsistent with his contention throughout the proceedings that he was not
aware that Davida Ncube was one and the same person with (sic) Khulekani Ncube
at any stage until his arrest.”
Regarding the minutes of the
meetings held between Zimbabwe Republic Police and South African Police service
which contained the name of Khulekani Ncube as one of the suspects being sought
after, the court a quo said;
“With
the exception of minutes of the 8th of January 2002 that is exhibit
1 and 2, the rest of minutes clearly show that Constable Mharadze who is now a
sergeant at the time of trial recorded all of them, that is from exhibit 3 to
5, the court will accept it as a fact that he recorded this (sic) minutes and
will treat evidence to the contrary by the first accused as an after thought.”
It has not been shown that there was
any misdirection on the part of the court a
quo in believing the evidence presented on behalf of the state. The trial court is in a better position than
an appeal court to make a finding on credibility of witnesses as it has the
opportunity to observe the demeanour of witnesses and to assess the nature of
their delivery of evidence. Where a
trial court has made a finding that a witness was credible the appeal court
should not and cannot interfere with that finding unless it is shown that there
was a misdirection on the part of the trial court.
In the present case, the trial
magistrate went to great lengths in assessing the evidence of both the state
witnesses and the appellant. He
concluded that the state witnesses had no reason to falsify evidence against
the appellant and that one of them, Detective Inspector Doro, had
unsuccessfully tried to protect the appellant.
The court accepted the evidence of the state witnesses that the
appellant knew that Khulekani Ncube was a wanted person but went on to release
him from custody.
The appellant did not impress the
trial court as a witness. At page 24 of
the judgment the trial court concluded;
“The
first accused's prevarication through out the proceedings starting from his
denial of being found with Khulekani Ncube by Detective Assistant Inspector
Masuna in his office combined with all the other discrepancies I have
highlighted; is not consistent with his assertion that he never came to know
that Davida Ncube was also known as Khulekani Ncube.”
The appellant was therefore
disbelieved. This meant that when he
ordered the release of Khulekani Ncube at the Mahatshula house he knew he was
wanted in connection with the robbery in South Africa. When he gave him back the Nissan hardbody
motor vehicle which had been impounded, the appellant knew that he was
obligated to investigate whether it had not been purchased from the proceeds of
the crime especially as the police were investigating the lavish expenditure of
the suspects at the time.
In light of all that the court a quo was entitled to draw the
conclusion that the appellant had shown favour to Khulekani Ncube and therefore
guilty as charged. The conviction was
therefore proper.
Regarding sentence, the court a quo paid lip service to the fact that
at the time the appellant was sentenced he had been in custody for a continuous
period of more than 12 months he having been arrested on 12 September
2002. It is now an accepted principle of
our law that pre-trial incarceration is a factor to be taken into account when
assessing sentence. Therefore the
appellant should have been credited with the almost 13 months he had spent in
custody before sentence.
In its reasons for sentence the
court a quo overemphasised the
aggravating factor that the appellant was a senior police officer and ignored
the fact that at the time of the trial Khulekani Ncube had already been
re-arrested and therefore there was not much prejudice suffered by the state. This should have weighed in favour of the
appellant. Indeed the moral
blameworthiness of the appellant was substantially reduced by the fact that the
South African Police did not show any keen interest in having the suspect
extradited to that country resulting in an order for their release being made
by the High Court.
In any event, having assessed an
effective sentence of (twenty four) 24 months imprisonment, the court a quo had
a duty to consider community service S v Mabhena 1996(1) ZLR 134(H); S v Gumede 2003(1) ZLR 408.
The appellant was a first offender
who had a clean record of (twenty seven) 27 years in the police force and this
incident occurred at the sunset of his carrier when he had been pensioned
off. Judicial officers have been
criticised for failing to take into account factors of mitigation and for
paying lip-service to those factors. S v Madembo and Another 2003(1) ZLR 137
at 140 B-D; S v Buka 1995(2) ZLR
130(S).
Mr Ndlovu for the respondent has also conceded the fact that 8 years
has lapsed since the appeal was launched.
The appellant has been awaiting the day of reckoning all that time and
as such it would be a travesty of justice to expect him to commence serving a
term of imprisonment now. He has
suggested that other forms of punishment be considered. I agree.
As already stated, this is a case
where community service should have been considered. However due to the lapse of time, I am of the
view that even community service would be too harsh if it has to be served 8
years after conviction.
The record shows that the appellant
was granted bail on 3 November 2003 meaning that from the time of his arrest on
12 September 2002 he had been in custody for 1 year 22 days when he was
released. In my view, the appellant has
suffered enough and that pre-trial incarceration should be credited to him so
that he does not have to serve any further sentence.
In the result, it is ordered that:
(1) The appeal against conviction be and is
hereby dismissed.
(2) The
appeal against sentence succeeds with the result that the sentence is set aside
and in its place is substituted the sentence of (twelve) 12 months imprisonment
which is wholly suspended for (five) 5 years on condition the appellant does
not, during that period, commit an offence involving dishonesty and for which
he is sentenced to imprisonment without the option of a fine.
Ndou
J agrees...........................................................
Criminal Division, Attorney
General's Office, respondent's legal practitioners.
