TAGU J: At Gweru Magistrates Court on 27 November 2012, and
after a contested trial the appellant was convicted of theft as defined in s
113 of the Criminal Law (Codification and Reform) Act [Cap 9:23] and
sentenced to pay a fine of $ 300.00 or in default of payment to undergo 3
months imprisonment. In addition 3 months imprisonment were suspended on
condition the appellant restitutes the complainant the sum of $ 733.00 by 31
December 2012 through clerk of court Gweru at 4 pm.
The appellant has appealed to this court against both
conviction and sentence. The appeal is opposed by the state.
The basis of the appellant's conviction is that the court a
quo erred in accepting the complainant's evidence that he had not been
given his money. He thus raised the issue that complainant's evidence was not
corroborated.
We were not persuaded by the arguments advanced by the
appellant for the following reasons. The appellant and complainant were total
strangers having met only for a few hours. The police clearance that was used
to ferry the beasts in question was in the name of the complainant. Meaning
that complainant accepted to assist the appellant to sell his beast. Money
meant for the complainant was collected from the CC sales by the appellant.
This was confirmed by the CC sales records and the cashier. From the evidence
the appellant collected the money after putting pressure on the buyers. The
appellant therefore did not have prior authority to collect money on behalf of
complainant alone.
When the appellant phoned complainant, and when the
complainant indicated that he was on his way to CC sales, it would have been
prudent for the appellant to wait at CC sales and hand over the money there
than to take the money to Bata. It therefore boggles the mind why and how a
total stranger could fabricate the charges against the appellant. The appellant
is admitting all that is proven by records and denies what is not written down.
But there is no proof that he indeed gave the complainant his money.
The trial court properly found that the complainant was a
credible witness. In terms of s 269 of the Criminal Procedure and Evidence Act
[Cap 7:09] single witness evidence can be sufficient to secure a
conviction if it is from a competent and credible witness. Corroboration is not
necessarily a requirement. A common sense approach has to be adopted by the
court.
In Mpetha and Others 1983 (4) SA 262 it was held
that “credibility of witness remains in the domain of the trial court, to judge
whether is worthy believing or not, mainly basing on his demeanor in the
witness box how he testifies, responses to questions whether generally his
story is coherent and worth believing”
Incasu there is no misdirection committed by the
court a quo which is so gross so as to vitiate its own findings. The
conviction is therefore proper. The sentence too cannot be disturbed as it is
in accordance with real and substantial justice.
The appeal is therefore dismissed in its entirety.
Pundu & Company, appellant's legal
practitioners
Prosecutor General's Office, respondent's legal practitioners
TAGU
J
…………………………………………………
BERE
J agrees ……………………………………………....
