MANGOTA J: On 7 May, 2012 the appellants appeared before
the court at Kadoma facing the charge of stock theft as defined in s 114 (2)
(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23]. The
State allegations were that on 3 October, 2011 and at Chetsanga Village which
is in Chakari area the appellants did steal three herd of cattle which belonged
to one Norah Mapfumo whom the State cited as the complainant. The complainant,
the State claimed, recovered her cattle.
The appellants pleaded not guilty to the charge. The first appellant made a
bold denial of the offence and the second appellant raised an alibi as
his defence. He said he was not in his home area or at the
complainant's area on the day of the alleged theft of the cattle. He stated
that he was at Kadoma Cotton Training Centre where he was attending a workshop
when the cattle were allegedly stolen from the complainant.
After a lengthy trial, the appellants were convicted of the crime which the
State had levelled against them and they were sentenced therefor. The present
appeal is against conviction only.
The notice of appeal which was filed with this court on 23 August, 2012 relates
to the two appellants. The papers which followed that notice, however, related
to the first appellant only. The papers in question comprise:
(i)
the first appellant's heads of argument – and
(ii)
the respondent's heads of argument which were filed in respect of the first
appellant.
During the hearing of the matter, the court sought
clarification from the appellant(s)' counsel on whether the appeal which was
being argued related to the first appellant only or to both appellants. Counsel
who was standing in for the firm which filed the notice of appeal with the court
remained unclear as regards the correct position of that matter. He started by
stating that he was under the genuine but mistaken view that he was
representing both appellants. When, however, his attention was drawn to the
name(s) which appeared in the papers which were filed with the court after the
notice of appeal, he acknowledged the anomaly and he urged the court to deal
with the matter which pertained to the second appellant in terms of s 26 of the
High Court Act, [Cap 7:06].
The court remained alive to the fact that, when the
appellants filed their notice of appeal, their intention was to appeal against
the court a quo's decision of convicting them and not to have that
decision reviewed. It also noted that none of the appellants, the second appellant
in particular, withdrew or abandoned the notice of appeal which he had filed
with the court. The argument which counsel for the appellants advanced when he
was not aware of the matter which the court raised with him at a later stage
related to the two appellants and not one of them. It was, accordingly, for the
mentioned reasons that the court proceeded to deal with the present appeal as a
complete whole which pertained to both the appellants and not in a piece-meal
manner which counsel had proposed.
On a reading of the evidence which is filed of record
in this matter, it is common cause that:
(i)
the complainant's three herd of cattle disappeared from where they were grazing
in the afternoon of 3 October, 2011
(ii)
the cattle in question comprised:
(a) one cow -
and
(b) two heifers
(iii)
the complainant recovered her three cattle - a cow which was known by the name
Queen and two heifers.
The key witness for the State in this case was one Forget
Jocho. He stated that at about 8 pm of the day of the theft of the bovines he
saw the two appellants driving the cattle which belonged to the complainant. He
informed the court that he recognised the cow which was known by the name Queen
as one of the three herd of cattle which the appellants were driving through or
past his homestead. He said he had, in the past, used the cow in his sister's
field and he, therefore, knew that cow very well. It was his testimony that he
was able to identify the cow with the help of moonlight. He said there was full
moonlight on the day that he saw the appellants driving the cattle passing
through his homestead. He stated that he was not mistaken at all in his
identification of the appellants and/or the cow.
It is Forget Jocho who led to the recovery of the cow and
the two heifers. His evidence on the point that the appellants passed through
his homestead driving the cow and two heifers was corroborated by none other
than the appellants themselves. The first appellant, for instance, put such
questions as the following when he was cross-examining the mentioned witness:
“X
Is it not correct that you woke up when we had already passed your
homestead and the beasts were 10-15 meters from your homestead
-
No
-
X Why did you remain
talking to me when accused 2 proceeded to drive the beasts
-
You stopped as I was talking to both of you and accused 2 proceeded to drive
the beasts”
The second appellant put the following questions to the witness:
“X Did you not see the cattle I drove from
Mukohwe to Nhau
-
I saw them, you passed through daylight and I saw the beasts
X That is
when I passed with accused 1 and it was during the daylight
-
No, I saw you during daylight with those cattle and I saw you during the
night with accused 1with Queen.
X
How many times did I pass through, please my brother in-law.
-
Twice, one during the day and when you were with Queen during the night.
(emphasis added)
The appellants' above mentioned line of questioning pushed them deeper into the
matter than out of it. They corroborated Forget Jocho's testimony which was, or
is, to the effect that he saw them driving the complainant's cattle past his
home during the night. Forget Jocho made a clear distinction of the cattle
which he said he saw the appellants driving during the day from those which he
said he saw them driving during the night. The ones which the appellants were
driving during the night did have, as part of the herd, the cow called Queen,
he said. He did not confuse the two incidents, the court observed. The
incidents remained as clear as night follows day, in the court's view. He had
no reason to lie against any of the appellants except to state what he had
observed.
The first appellant made an effort to persuade the court to go along with the
suggestion that Forget Jocho and members of the latter's family had a stone to
grind with him. That was, however, a bold statement which he belatedly made as
an after-thought. He, however, could not substantiate his assertion in the
mentioned regard. The second appellant advanced no reason which showed that the
State witnesses, Forget Jocho in particular, wanted to see him in trouble.
During the time that the first appellant was being cross-examined he, in answer
to the Prosecutor's questions, stated as follows:
“X Evidence of all witnesses is vivid in
your mind
-
Yes
X If I zero
in on Forget Jocho
-
Yes
X You don't deny
driving some beasts through their home during one night
-
Yes
X You were
in company of accused 2
-
Yes
X
Forget says beasts belonged to Norah Mapfumo as he identified cow called
Queen
-
It is a lie, he lied in this court, there was mistaken identity as it was
dark and at night. The moon was shining and I wonder how he identified male
or female beasts (emphasis added)
X
You admit that you spoke to
him
-
Correct
X
How far were the beasts
-
Accused 2 drove the beasts past up to approximately 30 meters
X
You went past his homestead with the cattle and you were stopped
-
He did not stop us we exchanged greetings.
X
He knew cattle as they belonged to complainant and accused 2 did not stop
-
He lied, he saw three beasts but it was during the night at around 8 pm
themoon was shining (emphasis added)
All the above is well in sinc with what Forget Jocho gave as his testimony. The
first appellant did nothing but to confirm a story which Forget Jocho had told
in some clear and unambiguous language. The second appellant, the court
observed, raised the defence of the alibi to the charge which had been
preferred against him. He, in the court's view, raised that defence as a
possible way of explaining his alleged absence from the scene of crime. He,
however, failed to substantiate his defence in any convincing manner. He, in
fact, mixed up issues during the time that he spoke in defence of himself. He,
for instance, stated, in-chief, that he went to Kadoma Cotton Training Centre
on 12 October, 2011. He said he returned home from the workshop on 5 October,
2011. There was clear confusion on what he actually wanted to convey to the
court when he stated as he did.
Part of the evidence which he gave in the form of question and answer reads:
“X It's not in dispute that one day in October,
2011 in the company of accused 1 you passed through Jocho's driving some
cattle
-
Yes, we passed through
X probable
what is in dispute is date and number of cattle
- It
was on 7 October 2011; it was a Friday
X Did you
see Jocho on the night in question
-
No, I heard him talk to accused 1 and I asked whom he was talking to, when we
got to Jocho's homestead, dogs barked and cattle got off the road into the
bush. I rushed to get them back onto the road. I did not see Forget but
he talked with accused 1
X You were
driving beasts together with accused I?
-
Yes
X
How do you explain when accused 1 talked to Forget and you say you were not
present?
-
No, we were together driving the beasts, so I rushed to bring them back to the
road.
X You went
past Jocho's place and you were stopped?
-
No, it was not around 7pm, but towards 8pm.”
The appellants' abovementioned pieces of testimony
corroborated the evidence of Forget Jocho in a manner which requires little, if
any, debate. It is Forget Jocho who linked the appellants to the crime in
a very material way. He caused the arrest of the appellants and the recovery
of the complainant's cattle. Much of the evidence which he gave in-chief
and under cross-examination tallied in a material respect with what the
appellants respectively stated in their evidence in-chief and when they were
under cross-examination. He remained thoroughly unmistaken in his
identification of the appellants as the culprits or the cattle which they were
driving on the evening of the day that the cattle were stolen from the
complainant.
The State witnesses were clear on the point that the two
heifers were recovered from the first appellant's place as well as that the cow
which is known by the name Queen was recovered from Tawengwa Nhau's
place. The first appellant did, in fact, confirm the State witnesses'
testimony which was to the effect that the cow was recovered from Tawengwa
Nhau's place. The prosecutor asked him under cross-examination and he
answered as follows:-
“X
On 21 October 2011 Chengetai Shumba recovered the dehorned cow from Clemence's
homestead?
-
No, they recovered the beast from Nhau's homestead.”
One requires no more evidence than to go by what the first appellant himself
stated on the matter.
Two of the bovines which had horns at the time that the cattle were stolen had
been dehorned. The brand marks which the complainant had made on the ears
of her cattle prior to the theft had been altered into some V-shaped
marks. All this is consistent with the appellants' desire to deprive the
complainant permanently of her three herd of cattle. The chain of events
which started with theft of the cattle from their grazing area running through
to their identification by Forget Jocho and their recovery from the first
appellant's area remains stubbornly unbroken. That chain ties the
appellants to the commission of the offence in an irrefutable manner.
The apparent variances which counsel for the appellant raised in the notice of
appeal as well as in the Heads of Argument do not take his clients' case any
further than they left it. Those variations do not go to the substance of
the case. They, if anything, dwell on the superficial aspects of the
case. The State witnesses were able to convince the court that the
complainant's cattle were stolen on 3 October 2011 and that the cattle in question
were recovered with the brand marks which the complainant used to identify them
having been substantially altered into some marks which were different from the
original ones. The appellants, on their part, confirmed the testimony of
the key State witness in all its material aspects.
The court has considered all the circumstances of this case. It remained
convinced of the fact that the appellants were properly charged, prosecuted as
well as convicted. The appeal against conviction is, accordingly,
dismissed.
The court will not deal with the issue of the sentence which the court a
quo imposed on the appellants. That aspect was not made the subject
of the present appeal and the court will not, in the circumstances of this
case, interfere with that part of the trial court's decision.
Murisi and Assocoates,
appellants' legal practitioners
National Prosecuting Authority, respondent's legal practitioners
MANGOTA
J....................................................
BERE
J agrees ………………………………...
