The
applicants appeared before the Regional Court in Bulawayo facing a charge
framed in the following manner:-
“Contravening
section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
(Unlawful Entry into Premises and Theft).
In
that on the night of 30th of June and 1st of July 2011 and at
Matabeleland Taxidermist Company, Bulawayo, Joram Ngwenya, Ngoma Mangoma and
Cleopas Moyo or one or more of them unlawfully and intentionally entered into
the premises of Matabeleland Taxidermist Company without authority or
permission from the lawful occupier and stole seven elephant tusks the property
of Matabeleland Taxidermist Company and in their lawful custody.”
The
facts, as outlined by the State, were that the applicants were all employed by
Matabeleland Taxidermist Company in Belmont, Bulawayo. On Wednesday 29
June 2011, Joram Ngwenya, who was the first accused in the criminal trial had
been instructed by his superiors to stop working on the elephant tusks but
ignored the instructions. Instead, he allegedly connived with Accused 3,
Cleopas Moyo, to leave five (5) elephant tusks in the skinning room that day
and another two (2) the following day, which was Thursday. They agreed to
leave the seven (7) tusks in the skinning room which they knew was insecure as
it was not secured by any alarm system. That was contrary to the company
policy which stipulated that elephant tusks were to be left in the safe which
was secured with an alarm system.
Under
cover of darkness during the night of 30 June into the morning of 1 July 2011,
the two accused teamed up with Accused 2, Ngoma Mangoma, who had access to keys
to the premises and proceeded to the premises and used duplicate keys to open
the main gate and then broke into the company skinning room and stole the seven
(7) elephant tusks which Joram Ngwenya and Cleopas Moyo had left
there. The seven elephant tusks were valued at US$45,000= and only one of
them, valued at US$7,000=, was recovered.
All
the three pleaded not guilty but Accused 1 and 3 were found guilty as charged
despite their protestations. Accused 2 was, however, found not guilty and
acquitted….,.
Thereafter,
the two accused engaged the services of legal practitioners who, in their
wisdom, decided to launch this application for review seeking the following
relief:-
“It
is ordered that:-
(1)
The conviction and sentence of the applicants by the Regional Magistrates' Court
on the 20th of October 2011 sitting at Tredgold Building in Bulawayo,
presided by the 1st respondent, be and is hereby set aside;
(2)
The matter be referred back for trial de novo.”
The
applicants' amended grounds for review were based on two issues.
Firstly,
they contended that there was no charge called unlawful entry and theft
according to the provisions of section 131(1) of the Criminal Law (Codification
and Reform) Act [Chapter 9:23]…..,.
In
as far as the first ground for review is concerned, there is some substance in
the contention that there is no longer a combined crime of unlawful entry and
theft. These are now two separate offences in terms of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
Theft,
simpliciter, is found in section 113 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] while unlawful entry into premises
is to be found in section 131 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23].
The
allegations, in casu, were that the applicants
unlawfully entered the premises and while inside they stole seven elephant
tusks therefrom. When they unlawfully entered into the premises their main
purpose was to remove the seven elephant tusks which they had placed in the
skinning room. They went there to commit a crime thereby aggravating the crime
of unlawful entry into premises. See section 131(2)(c) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. It was not proper to frame the
indictment the way it was done in this case.
What
then was the effect of framing the charge in that manner? Does such
irregularity warrant the setting aside of the proceedings and referral of the
case back to the court a quo for a trial de novo?...,.
For
this court, or judge of this court, to quash or set aside a conviction or
sentence by reason of any irregularity or defect in the record or proceedings
the court or judge must be convinced that a substantial miscarriage of justice
has actually occurred. See section 29(3) of the High Court Act [Chapter
7:09].
I
am far from being convinced that any miscarriage of justice let alone a
substantial one actually occurred in this case.
Were
the applicants prejudiced in anyway by the sentence imposed on them? The
answer is No.
A
person convicted of unlawful entry into premises in aggravated circumstances is
liable to imprisonment for not more than 15 years. The trial court was
within its powers when it sentenced each accused to 10 years imprisonment of
which 3 years imprisonment was suspended on the usual conditions of future good
behaviour.
In
conclusion, I hold that the irregularity cited by the applicants does not
warrant the quashing or setting aside of the conviction or sentence. I
would, in the result, dismiss the application with costs.
