On
the fateful day i.e. 10 December 2006, in the evening, the appellant was
executing his duties in the Bulawayo-Victoria Falls passenger train. In Count 1
he was paid $2,000= by one Tapiwa Nyoni being fare to travel from Bulawayo to
Hwange. The appellant pocketed the said amount and did not issue a ticket to
Tapiwa Nyoni. All this is common cause. In Count 2, on the same date and on the
same train journey, the appellant also received $3,000= from a passenger,
Tafadzwa Dube, as fare to travel from Bulawayo to Hwange. Likewise, Tafadzwa
Dube was not issued with a ticket. In Counts 3 to 5, in the same journey, the
appellant was approached by Edna Ncube in the company of Primrose Vandal and
Mary Yunda Yunda. All three requested an upgrade from the economy class to
first class. From each of the three, the appellant received $4,200= for the
upgrade. The appellant directed the three to coach number 2089 i.e a first
class compartment. For these three amounts the appellant did not issue tickets
and he once more pocketed the cash.
These
offences came to light when the ticket-checker requested tickets from the
passengers. All the above-mentioned five passengers indicated that they had
paid the fares to the appellant and he had not issued them with tickets. From
the record of proceedings in the court a quo, it is clear that on the day in
question the appellant was acting as “a Train Manager supervising the
conductors.” He was the man in charge of the conductors. He, therefore, had the
freedom to roam the train in the course of his duties. We can assume that in
such capacity he was authorized to collect fares on behalf of the National
Railways of Zimbabwe from passengers. State witness, Amon Muzhamba, shed light
on the operations of conductors in the National Railways of Zimbabwe trains.
The appellant, as Train Manager, was a conductor in the First Class and only
supervised conductors in the Economy Class. This, in essence, would mean that
the appellant was not supposed to collect fares in Counts 1 and 2. On the other
three counts, it would seem the appellant was not supposed to collect the fare
for the upgrading from Economy Class to First Class. It would have been the job of the conductor
in the Economy Class. This irregular conduct by the appellant does not, per se, mean that the appellant had the
necessary mens rea to steal. However, the trial court took this conduct
together with non-issuance of tickets by the appellant. The appellant's explanation
that he was going to do reconciliations when the train reached its final
destination in Victoria Falls does not make sense either. The appellant has
been in the employ of the National Railways of Zimbabwe from 1989. It can
safely be deducted that with such vast experience he appreciated the need to
issue tickets to the passengers paying fares. The court a quo rightly found
that he ought to have known that tickets are issued upon receipt of the cash.
In any event, the appellant did not even alert the conductors and ticket
checkers that he had collected the fares. From the record of proceedings the
passengers in Count 1 and 2 were in the process of disembarking when it was
discovered that they had not been issued with tickets for the fares that they
had paid. When tickets were checked from other passengers the offences in Counts
3 to 5 were also discovered. The court a quo rightly concluded that all these
factors taken into account, the State established that the appellant took the
fares with dishonest mind. He had no intention of surrendering the cash to the National
Railways of Zimbabwe as the passengers would have disembarked without the
tickets being issued. In any event how was he going to remember all these fares
and the distances they related to when he arrived in Victoria Falls? The only
reasonable explanation from the proven facts is that he pocketed the cash with
the intention to convert the same into his own use.
There
is no possibility of his explanation being true from the proven facts – R v
Difford 1937 AD….,. The State proved all
the averments necessary to establish his guilt on the five charges of theft – R
v Ndhlovu 1945 AD 369.
It is for these reasons that we dismissed the
appeal against conviction.
