The case authorities are clear that where the accused raises the defence of alibi, it is not for him to prove it but for the State to disprove it. See S v Mutandi 1996 (1) ZLR 367 (HC); S v Musakwa 1995 (1) ZLR 1 (SC); S v Masawi & Anor 1996 (2) ZLR 472 (SC).

In S v Musakwa 1995 (1) ZLR 1 (SC), McNALLY JA stated:

“What no-one seems to have realised is that the defence raised was that of an alibi. The appellant was saying that he had only just arrived when he was accused. So he was not there when the confidence trick was set in motion.

The appellant said so right from the beginning. So why did the police not check whether he was being truthful when he said he worked for “Heat and Systems” who make pressure pipes? Why did they not check his story that he left there at 4:30pm? Why did they not check how long it takes to walk from there to the spot where the offence was committed? Why did they not ask the complainant what time it was when the two young men approached her?

The court should have been alive to the importance of these matters. It was not simply a matter of the reliability of the young woman's powers of recognition.”…,.

McNALLY JA further stated…,:

“The alibi defence is referred to in section 158 of the Criminal Procedure and Evidence Act and in HOFFMAN and ZEFFERTT, South African Law of Evidence 4ed at p619. The onus is on the State to disprove the alibi: R v Biya 1952 (4) SA 514 (A); S v Khumalo & Ors 1991 (4) SA 310 (A) at 327 H.

The State made no effort to disprove the alibi in this case. Mistakes in identification can happen. The police should know this. They should have checked.”

I do not understand the law to accord an accused the option, when he relies on or claims that the defence of alibi is or should be available to him, to keep his cards close to his chest until the very end. For, how else would the State be afforded the opportunity to be able to discharge the onus on it if it is not furnished with the material details of such defence of alibi as the accused relies on, at the outset or at a stage that allows the police or the State to investigate its veracity….,.

In S v Mutandi 1996 (1) ZLR 367 (HC), GILLESPIE J…, said, after reviewing some authorities regarding the treatment of the defence of alibi:

“As the extracts above show, the true enquiry is whether or not the accused is the person who accosted and cheated the complainant. That is to say the real issue is whether or not the complainant's evidence of identification of the accused was reliable. The extract from his judgment shows that the magistrate was obviously prepared to believe the complainant and indeed good reasons are given tending to show the genuineness of her belief and the truthfulness of her evidence. It is not enough, however, to be able to find that the complainant honestly believes that she has correctly identified the accused. She might be honestly mistaken. This is the true danger which the magistrate, although he uttered the words of caution to himself, failed to appreciate or to consider.”

The learned judge proceeded further:

“As was said by HOLMES JA in S v Mthetwa 1972 (3) SA 766 (A) at 768 A–C (and approved by DUMBUTSHENA CJ in S v Dhliwayo & Another 1985 (2) ZLR 101 (S) at 107 A–D:

'Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other in the light of the totality of the evidence and the probabilities;…,.'”

GILLESPIE J further continued:

“The present Chief Justice of this country, GUBBAY CJ, drew attention to the same need for caution when, in S v Ndlovu & Others 1985 (2) ZLR 261 (S) at 263G–264E, he said:

'Confidence and sincerity are not enough. The possibility of a mistake occurring in the identification, especially where the witness has not known the person previously, demands that the greatest circumspection be employed.”

The appellant has subjected the testimony adduced by the State witnesses to a microscopic analysis. In the process, he managed to pick up a few discrepancies.

The inconsistencies raised by the appellant are not of a material nature. This is a mere hocus-pocus to draw our attention away from the material evidence adduced during the trial. Looking at the evidence, the issues are narrow. This is so because, in addition to the undisputed facts alluded to above, there is clear evidence that the complainant was sexually molested.

With such clear evidence of the sexual abuse of the complainant, the only way for determination was the identity of the person who raped her.

She said it is the appellant.

A cursory perusal of the record of proceedings at the applicant's trial shows that the two complainants in the robbery gave incontrovertible evidence. Their evidence was to the effect that, indeed, the robbery took place and shots were fired in the course of the robbery.

Austin Hove was at the front of the shop and did not see what happened behind it.

It was Tennis Rino, an informal trader who buys and sells various wares at a flea market in Mutare who associated the first accused only with a cellphone that formed part of the stolen loot. He alleged that on a date he could not recall, but in August 2007, the first accused came to his house at 297 NHB Sakubva Mutare at 8am. He was selling a Nokia 5110 cell phone for $2 million in local currency. He negotiated the price down and after 15 to 20 minutes of haggling purchased it for $1,5 million. After a few days, the first accused came with the police. He was in handcuffs. The witness confirmed to the police that the first accused had sold the cellphone to him.  In his evidence-in-chief he stated that he did not know the first accused's name and could not recall it though he had seen it written down in some police document. He was adamant that the first accused was the one who sold the cell phone to him because he had directed the police to his residence.

Under cross examination by counsel for the first accused, the witness indicated that prior to the transaction he did not know the first accused. He also denied knowing one Angirai Soundo. He denied that he purchased the cell phone from Angirai Soundo. He indicated that he was shocked by the visit from the police and was busy wondering where the seller was when he was asked if he could identify him. He was then taken to the police truck in which the only occupant was the handcuffed first accused person. He immediately identified him as the seller. The two of them were taken to the police station.

Simon Muruju disputed his identification by Tennis Rino as the seller of the cell phone.

The issue for determination is therefore whether or not the accused was properly identified by Tennis Rino as the seller of the cellphone and possessor of the computer accessories that were seized by a Mozambican Customs official.

It was common cause that the accused led Detective Assistant Inspector Nekati and two other police detectives to Tennis Rino's residence where the cell phone was sold. It was common cause that the accused did not supply the name of the person who purchased the cellphone to the police. It was agreed that he led the police to the place where the cell phone was purchased and not to the person who purchased the cellphone. It was common cause that when Tennis Rino became aware of the purpose of the police visit to his residence he was visibly terrified. He stated that he mused on the whereabouts of the seller. His apprehension was broken by the attitude and directive of Detective Assistant Inspector Nekati who requested him to proceed to the vehicle and asked him whether the sole handcuffed occupant in the back of the truck was the seller. He affirmed that he was. The witness and the accused rode to the police station, together, in the back of the truck. It was apparent from the testimony of Tennis Rino that he did not know the name of the person who sold the cellphone to him. He had never seen this person before he purchased the cell phone. He spent fifteen to twenty minutes with him. He did not describe the seller by face, voice, build, gait or dress. He did not indicate the period that elapsed between the date he purchased the cell phone and the police visit. The impression we discerned from his testimony was that he was relieved of his anxiety on the whereabouts of the seller by the leading and suggestive question that he was asked by Detective Assistant Inspector Nekati at the police truck.

The proper thing for the police to have done once they located the purchaser was to arrange for an identification parade. The identification conducted at the police car was most improper, unprocedural and prejudicial. See S v Ndhlovu & Ors 1985 (2) ZLR 261 (S)…,.

After their arrest, the police conducted an identification parade and applicants 1, 2 and 3 were positively identified by the complainant.

This is beyond dispute.

We are in agreement that the court a quo did not fully investigate the appellant's defence of alibi and the possibility of mistaken identity. The appellant indicated that at the time of the alleged robbery he was at the seminary carrying out duties.

It is trite law that the State bears the onus to disprove the accused person's alibi. S v Masawi & Anor 1996 (2) ZLR 472 (SC). 

Besides his own testimony, the appellant called two witnesses in support of his alibi. Father McQuillen, the Dean of Students at the seminary, testified that the seminary followed a daily timetable; with prayers at 1215 hours and lunch at 1230 hours. Father McQuillen testified that the appellant was at the seminary and that it was indeed true that he was one of the organizers for a party for third year students. He, however, conceded that he (i.e. the witness) left the seminary just before the lunch and thus could not tell whether or not the appellant left the seminary at lunch time. Another witness, Gerald Chipangwa, testified that he was with the appellant from morning until when they parted company at 1255 hours. If this testimony is accepted, then the appellant's defence of alibi should have succeeded – S v Musakwa 1995 (1) ZLR (SC). The trial prosecutor did not challenge this testimony under cross-examination.

In the circumstances, counsel for the respondent rightly conceded that the issue of the appellant's alibi and the disparity in time was not fully canvassed to bring out the reasonable doubt.

The facts of the case are mainly common cause.

On the 9th May 2008, at around 12 noon, the complainant was at corner George Avenue and Harare Road waiting for transport. She was confronted by a man she did not know and robbed of her handbag containing a Samsung E250 cellular phone and cash amounting Z$1,000,000=. Her assailant fled. A police vehicle arrived at the scene, and, after a report, the police details gave chase. The assailant dropped the complainant's handbag but the police details failed to catch up with him. Thereafter, the complainant phoned her husband and gave him the description of her assailant's attire and the direction he took when he fled. Using his description, the husband apprehended the appellant around 1300 hours at Paddonhurst.

The type of identification evidence is less than ideal. In S v Mutandi 1996 (1) ZLR 367 (HC) the court rightly observed –

“Mistakes often happen with identification evidence. Where a person identified claims he was elsewhere at the time of the crime, the police should check his alibi, as the onus is on the State to disprove his alibi.”

S v Shabala 1986 (4) SA 734 (A) and R v Mokoena 1958 (2) SA 212 (T).

In casu, no identification parade was held after the apprehension of the appellant. This was necessary because the persons who apprehended him where not at the scene of crime, they were relying on a telephonic description given by the complainant…..,. As alluded to above, there is a parallel between the time the offence occurred and the time that appellant allegedly left the seminary. This parallel in time created doubt that the appellant's guilt was proven beyond reasonable doubt. More importantly, the description of the appellant, as given by the complainant, differed from that given by her husband, Mandla Khumalo. The latter indicated that he was phoned by the complainant to the effect that the appellant was putting on a black jacket and a rosary and yet the complainant indicated that the appellant was wearing a blue jacket with orange stripes.

This disparity escaped the eye of the trial magistrate….,.

No other description was supplied by the several witnesses who testified. What value can be attached to such identification via clothing when there is disparity on the type of clothing? No real persuasive value can be attached to this kind of identification. R v Masemong 1950 (2) SA 488 (A); S v Sibanda & Ors 1969 (2) SA 345 (T) and S v Mlati 1984 (4) SA 629 (A).

There was no testimony given about the appellant's sex, size, gait, colour or any other distinguishing features.

It is trite that in all cases that turn on identification the greatest care should be taken to test the evidence.  Witnesses should be asked by what features, marks or identifications they identify the person whom they claim to recognize – R v Mokoena 1958 (2) SA 212 (T); R v T 1958 (2) SA 676 (A) and S v Ndhlovu and Ors 1985 (2) ZLR 261 (SC).

It is her testimony that she managed to observe the appellant and his facial features during this ordeal.

Further instigations by the police established that finger prints uplifted from the scene of the crime at Welt Hunger Hilfe No. 6 Wallasey Street, Donnington, Bulawayo, matched those of one of the accused persons, Everton Khupe, who had been arrested at Sloane Lodge Harare after being fingered by the applicant and Bongani Sicelo Mbambo. In addition, Everton Khupe and Mandlenkosi Gumisayi were positively identified by the complainants in a formal identification parade conducted by the police.

Having determined that she had been raped, the only issue remaining was the identity of the assailant.

The complainant, who impressed the trial court as “a very clever child and was up and about in the separation room as she led evidence”, pointed to the applicant as the person who had hurt her.

With the greatest respect to State counsel, it is not correct that the identity of Nhlanhla was not verified.

The complainant made it very clear that it was the applicant who abused her and did not suggest the possibility that someone else did. She was asked to identify the person who had hurt her from among the people who were in court and she did not hesitate to pick the applicant…,.

To say that there was a boy called Nhlanhla in the neighbourhood who is aged about four (4) years who may have raped the complainant is simply disingenuous and does not deserve to be taken seriously especially against the background of the applicant, a twenty-seven (27) year old, having been picked out by the complainant.

I therefore come to the conclusion that the appeal has very little prospects of success and the application is not meritable. In any event, the day of reckoning is nigh as the record of proceedings has been fully transcribed. It remains for the applicant's legal practitioners to arrange for the set down of the appeal early next term.

Secondly, the applicant contends that the identity parade which was conducted was not properly carried out as he was brought to the charge office barefooted and was asked to put on his shoes in the presence of the complainant, a procedure which is unusual as it exposed him to the complainant who no doubt regarded him as the accused and therefore proceeded to identify him as such.

These allegations and arguments were not controverted by counsel for the respondent who stated that he had been unable to verify them with the investigating officer.

He did not even ask for indulgence to verify them.

If it is true that the identification parade was conducted in the manner described, it is, but, a mockery of justice. It should be noted that an identification parade is a procedure where a complainant or witness should independently identify the suspect or the wrongdoer without being given a clue which is designed to expedite police investigations. I am not saying that it was the case in casu, but, my emphasis is that identification parades should be conducted in a manner that exclude the possibility of any suspicion of bias or unfairness. Where an identification of a suspect has been made easier by a police officer's conduct, conscious or otherwise, our courts should be ready to condemn such proceedings without more.  In casu, what occurred in this case cannot pass the test of an identification parade. There should be fairness in the process; where fairness is absent the possibility of bias cannot be excluded. See R v Masemang 1950 (2) SA 488 (AD) and R v Y and Another 1959 (2) SA 116.

Great care should be employed when identifying a suspect. In S v Ndhlovu and Others 1985 (2) ZLR 261 (SC) GUBBAY JA…., stated -

“Confidence and sincerity are not enough. The possibility of a mistake occurring in the identification, especially where the witness has not known the person previously, demands that the great circumspection should be employed.”

In his defence, the appellant denied having raped the complainant.

He said that he spent the whole day at home with his mother, his sister and a tenant. He was performing household chores as his mother was not feeling well and his sister had recently given birth to a baby and could not go out with the baby yet. He only left the house around 3.00pm when he went to the market place to fetch relish. He said that he never spoke to the complainant and it was not possible to rape her in the toilet without being seen or heard by the people who were at home as the toilet door makes noise when opened….,.

The sixth and seventh grounds also raise the same issue; which is to the effect that the trial magistrate erred in failing to appreciate that the defence raised by the appellant was plausible and that it left a very remote possibility that the complainant could have been raped in the toilet where everyone at the house had access and at that time of the day.

It was common cause that during the evening of 26 July 2004 the mother of the four year old bathed the girl. In the process she discovered semen in her female organ. She questioned her about the white substance. She told her how the whitish stuff had been deposited into her private parts. She took the girl to the clinic where she was referred to hospital. Thereafter, she made a report to the police. The girl led the police and her mother to one of the three tuck shops that were 50m from her home. The culprit was not in that tuck shop.

The police took the girl to one of the other tuckshops where she pointed out one of the three boys as the rapist….,.

The mother admitted, under cross-examination, that she wielded a switch on the way to the tuck shops. She further stated that when they were about to reach the tuckshops, the girl stopped in her tracks and only trudged on after she waved the switch at her. She, however, attributed her reluctance to fright….,.

The accused testified.

He knew the younger girl's mother. She often sought to buy goods on credit. In line with the tuck shop policy, he declined as it was a cash and carry shop. She threatened to close the shop because he refused to extend credit to her. Further, he averred that he had been told by the owner of the tuckshop that her brother stole some cold drinks from the tuck shop. She came to the tuckshop holding a crying complainant in one hand and a whip in the other. He stated that the three tuck shops, one of which operated as a shebeen, were near a school and were so busy such that the offence would have been easily detected. He called Isaac Kufa, the owner of the tuckshop, who gave irrelevant hearsay evidence which was unhelpful to the appellant's defence. For what it is worth he averred that the brother to the mother of the four year old once stole some eggs from his tuck shop before he employed the accused. He did not allege, as did the accused, that he stole some cool drinks.

In her judgment, the trial magistrate correctly identified the issue for determination to be whether or not the appellant was the perpetrator of the two offences in question.

She found it proved that the two girls had prior knowledge of the appellant before the offences were perpetrated and that he ran one of the three tuckshops that was situated 50m -100m from their homes. She found both girls credible and relied mostly on the testimony of the elder girl to found conviction. She was old enough at the time to appreciate the difference between right and wrong, truth and falsity. She did not volunteer the report of rape for fear that she would be blamed for what had happened to her. She, however, voluntarily led the police to the tuckshop run by the accused. At the time the accused was not in the tuck shop. She was able to identify him amongst two others who were in his company in one of the other two tuck shops. Unlike the younger girl, who might have been impressionable and subject to the influence of her mother, at four, the elder girl was free from these factors. In comparison, her testimony was more detailed than that of the younger girl. It accorded with the objective facts in that she correctly stated that she did not bleed. The absence of blood on both girls was confirmed by their respective mothers. The younger girl's mother accepted that she carried a switch which she used to threaten the younger girl when she appeared to falter on the way to the tuckshops. No such threat was used on the older girl who was also in their company at the time.

Counsel for the appellant attacked the elder girl's evidence on the basis that the State outline indicated that she was interrogated by the police before she identified the perpetrator. He suggested that the identification of the culprit was extracted by force.

Neither the girl nor the first girl's mother stated that force was used by the police to extract the identity of the culprit. Rather, the evidence revealed that she did not know the name of the perpetrator. She, however, knew where he was based and she voluntarily led the police to him. The evidence does not show that she was intimidated or forced into taking the police to and identifying the perpetrator. In any event, as long ago as 1991 in the case of S v Nicolle SC61-91…, KORSAH JA held that unlike a defence outline which is prepared from what the accused person tells his counsel and is tendered into evidence with his approval, a State outline is not prepared on the instructions of the complainant, is not approved by the complainant before it is tendered in evidence and does not constitute part of the complainant's testimony. The word “interrogation” in the State outline did not constitute part of the elder girl's testimony, was not placed therein by her or with her approval. In fact, it was at variance with the evidence led at the trial.

It cannot, therefore, be used to undermine her testimony.

The evidence of the younger girl was attacked on the basis that the mother threatened her with a switch when she appeared reluctant to proceed with the journey as they neared the tuck shops. The submission being that the reluctance demonstrated that the perpetrator was not at the tuckshops. The mother's explanation, which was not challenged or discredited under cross-examination, was that the girl became frightened as they approached the tuck shops. In my view, her fright was a natural reaction of a girl of her age regard being had to the more detailed testimony of the elder girl on how they were tied and gagged before they were raped. She would also have been frightened to approach the scene of the crime after the rigmarole of the examinations and questions at the clinic, hospital and police station that would in reality amount to secondary rape.

The two girls gave conflicting versions on two aspects.

The first was that the elder girl said they were first tied and gagged before they were raped while the younger girl said they simply obeyed his instruction to lie down. The elder said she did not bleed. The younger stated that they both bled. These discrepancies were not dealt with by the trial magistrate; neither were they referred to on appeal. The medical report compiled two days later spoke to a scar on her fourchette. Both girls hymen were stretched and had notches. Both girls stated that they felt pain as the accused inserted his penis into their female organs. The interference which left these marks may have caused bleeding but it could be that the four year old may have associated semen with blood. After all, her mother was emphatic that she saw semen and not blood. It seems to me that the older girl, by virtue of her age, had better and more acute powers of recall than the younger one, thus making her fuller version more accurate. The importance of their versions lies in the fact that they were raped, one after the other, by the same perpetrator at the same place. Both were able to identify this perpetrator when he was in the company of two others when the police went in search of him.

Before 29 August 2010, the 11 year old complainant was a total stranger to the appellant.

She was properly warned by the court to tell the truth. She gave a simple and straightforward narration of what she said transpired, most of which events were confirmed by the appellant. She was positive and unequivocal about her assailant's identity. She exhibited no motive to lie against him neither was any attributed to her. The appellant had extended generosity to her in her hour of need. The court a quo consequently posed the following somewhat rhetoric question:

At the trial, it was not in dispute that the complainants had been abused in the manner set out above.  What was placed in issue was the identity of the assailant.

While accepting that the two (2) young ladies had spent a considerable amount of time with their assailant as to be able to describe him and his clothing, the trial magistrate was swayed more by the evidence of the nine (9) year old boy MN.

That witness was emphatic in his identification of the appellant as the assailant. When giving his evidence in chief, the dialogue between MN and the State counsel went like this…;

“Q: How were you able to tell he is the one you met?

A: I know him.

Q: How?

A: Well.

Q: Did you recognise any features?

Q: No, I saw him in the car.

Q: When?

Q: He was driving a car but on the day we met him he was not driving.

Q: You saw him driving before?

A: Yes.

Q: Where?

A: I do not know where he was going.

Q: How long before going to Mathe had you seen him in motor vehicle?

A: Long time.

Q: How many times had you seen his motor vehicle?

A: Many times.

Q: After bush incident did you see him?

A: No.''

During cross examination, defence counsel tried hard to discredict the boy. The dialogue between them went like this:

''Q: You said you know accused?

A: Yes.

Q: Who is he called?

A: Julumba.

Q: Do you stay in same area?

A: Yes.

Q: By which child is he called?

A: I do not know.

Q: How do you refer to his homestead?

A: At SaJulumba.

Q: You mean his father?

A: Yes.

Q: That is his father's homestead?

A: Yes.

Q: Do you know his homestead?

A: No.

….,.

…,.

Q: How did you get to know him at his home?

A: I saw him at his home.

Q: You mean SaJulumba's homestead?

A:  Yes.

Q: Were you then going to school?

A: Yes.

Q: What type of car was he driving?

A: White.

Q: Where is the car?

A: Fana is the one driving it.

Q: Would you say it is his car?

A: It is not his car.

Q: Whose is it?

A: I do not know.

Q: When he met you with your sisters, you already knew him?

A: Yes.

Q: Even with name?

A: Yes.''

The trial magistrate believed MN. She analysed his evidence carefully and stated…., as follows:

''M…, stayed in this neighbourhood unlike his sisters. He said he knew Julumba's father's place as the homestead where Julumba came from. He said the homestead is called SaJulumba's. This witness said he met accused a long time before this day when he saw him driving a white motor vehicle. He said this motor vehicle was not Julumba's. That it was driven by Fana and Julumba would be with Fana and others. He said he knew him and saw him abuse his sisters whilst he sat there.  That he had walked for some distance before abuse.

What weight can this evidence be given by court?

The defence counsel quoted a case mentioning that court should apply caution when dealing with children's evidence. In this case, it was only brought out by this witness that accused drives a white car. This evidence was not disputed or challenged. It was again through this witness that Fana's name came out. This again came out to be true and not challenged. This witness mentioned that Julumba's father's homestead is identified by Julumba's name. This was evidence brought out by the young child and it was not disputed or challenged. The child was asked if he knew Julumba's homestead and answered in the negative…,. Can the court believe the 9 year old's evidence on identification? The Nkomo case (S v Nkomo 1989 (3) ZLR 117 (S)) said, if there is corroboration to an identification court can believe it. The evidence of the white motor vehicle that accused drives, the accused moving with Fana and the father's homestead can these be treated as corroboration in this case. The answer is yes. It can be taken to be independent evidence showing that the witness knew the person he was talking about. Will it matter now that the evidence was led by a child? The answer is no.''

In my view, the trial magistrate applied her mind carefully and warned herself against the dangers of relying on the uncorroborated evidence of a young witness. She found corroboration of that evidence and believed it. She then proceeded to conclude that the State had proved its case beyond a reasonable doubt. In S v Nkomo 1989 (3) ZLR 117 (S)…, McNALLY JA stated that good identification does not need corroboration or support, but poor identification does. In the present case, although MN's identification of the appellant was, in my view, good identification, as the witness had known the appellant for a long time, the trial court stretched backwards to find corroboration….,.

This is an application for a discharge at the close of the State case.

The accused were charged with one count of kidnapping and another of murder. They pleaded not guilty to both counts.

In relation to Count One, the allegations against them is that on the 3^rd March 2001 at Silverstream Farm, Nyamandlovu, in Matebeleland North Province, they wrongfully, unlawfully and intentionally kidnapped one, Forster Moyo and tied him to a tree for two hours, thereby, depriving him of his liberty and causing him some injuries.

With regards to Count Two, it is alleged that on the 4^th March 2001 at Silverstream Farm, Nyamandlovu, in Matebeleland North Province they wrongfully, unlawfully and intentionally killed and murdered one Elizabeth Gloria Olds.

Count one

The State called Forster Moyo. His evidence is that at the relevant period he had just been employed by Elizabeth Gloria Olds for three months at the said farm. On the 3^rd March, in the afternoon, while he was passing through his employer's homestead, he was stopped by two men who apparently had been lying on the ground in the yard. They forcibly took him away into the bush where they tied his hands behind a tree and also tied his legs together. He was made to sit in that position with his legs stretched. They left him in that position for an hour. These two men asked him about the set-up at the farm, that is, the number of whites in the farm, where the money was kept, the number of guns and where these guns were being kept. He told them that there was one white person, but, he had no knowledge of the guns and money.

After an hour, these men came back and released him with a warning not to tell anybody. He, however, could not keep his ordeal to himself and told one, Fanuel. He then retired to bed.

In the early hours of the 4^th March 2001, at about 0400 hours he had sounds of gunfire. He stated that “after hearing the gunshot, I then knew that those were the people who had killed.”

It was, further, his evidence that he was later called by the Investigation Officer, George Levison Ngwenya to identify the accused at Bulawayo Central Police Station. He told the court that George Levison Ngwenya said: “we have apprehended those people, we want you to identify them. George Levison Ngwenya told him that the people were in a straight line and he told him to go straight and touch him. He then went straight and touched Accused One.

This witness did not see who shot Elizabeth Gloria Olds as he was asleep at the time. He, however, concluded that it was the accused persons who had killed her as they had come to him the previous day asking about the activities at the farm, the number of white residents, the number of guns and money. In his evidence in chief, and under cross-examination, he insisted that it was the accused who had killed Elizabeth Gloria Olds. Under cross-examination he admitted that his conclusion was based on suspicion because of his encounter with them the previous day. Further, under cross-examination, he told the court that his captors threatened him with death, but, later on changed his story and stated that although they did not threaten him, he came to that conclusion because of fear.

With regards to Accused One's identity, his evidence was that he observed that he had short hair and was dark in complexion although he was now lighter because he was now applying skin lightening cream. He admitted that he was in a state of shock at the time. He conceded that he did not take much notice of his facial features but his complexion and mouthstache. It is further his evidence that prior to the identification parade George Levison Ngwenya took him and stayed with him for nearly two weeks. This was at George Levison Ngwenya's expense. During the identification parade he saw people standing in a line and George Levison Ngwenya had told him that Accused One was there and that he should go straight to him without moving from one suspect to the other. He also told the court that Accused One was dressed differently from the others. It is also his evidence that George Levison Ngwenya had told him that people who had committed murder where amongst those that had been shown to him.

When pointed out by the defence counsel that Accused One was in fact lighter he maintained that it was him although his captor was dark. He insisted that it was Accused One who had threatened him with death.

This witness also told the court that before he identified Accused One, he was taken up to an office and was told to pick up a suspect before he went down to where the identification parade was being conducted.

The next witness was George Levison Ngwenya.

His evidence was that he is attached to the Investigating Office section in the Zimbabwe Republic Police. At the relevant period, he was stationed at Nyamandlovu Police Station. He, together with Detective Inspector Hlomayi, attended the murder scene. On the 29^th March 2001 he was called to the Criminal Investigation Department, Bulawayo and was part of the team that went to Nyamandlovu to collect Forster Moyo in order for him to participate in the identification parade. Upon arrival, he handed Forster Moyo to Detective Inspector Malunjwa. George Levison Ngwenya was made to guard Forster Moyo in a different room during the identification process. He did not see what transpired during the identification parade. According to him, Forster Moyo was brought to the identification parade in order to identify the people who had kidnapped him. He did not see Forster Moyo again until he met him in court for trial. He further told the court that the accused persons were arrested during a stock theft investigation as they found Accused Two in possession of a camouflage uniform which they linked to the one which one of the kidnappers was putting on. The weapon that was allegedly used either for the stock theft or murder case was not recovered. Under cross-examination, he told the court that he indeed kept Forster Moyo in his custody as there were no witness facilities at the police station. He, however, denied telling the witness that the reason why he wanted him to participate in the identification parade was in order for him to specifically indentify suspects whom they had already arrested and that the said suspects were in the group from which he was to select from.

The following points are pertinent in his evidence. When being questioned by the defence, he stated that Forster Moyo was lying if he stated that:

(1) He had told him that the suspects were amongst the people in the parade and that he should go straight to Accused One and hold him….,.;

(2) He denied that he was present when Forster Moyo was supposedly told anything by anyone during the identification parade; and

(3) He admitted that no one was seen killing the deceased.

In addition, he stated that what led to Accused Two's arrest was because of his footprints which led to his motor vehicle which was being pushed by villagers. It is this evidence which had led to his arrest in connection with a charge of stock theft. Both accused were arrested for stock theft, charged, but were acquitted. Under cross-examination, he admitted that the reason which led to the accused's arrest was mere suspicion as there was no evidence which linked them to the said offence.

The next witness was Detective Chief Inspector Stephen Mpofu.

He told the court that he conducted an identification parade on the 29^th March 2001 where Accused One was a suspect. He told the court that there were nine people on parade who were not similarly dressed. He explained to them that there was going to be one witness only. He further stated that he explained to Forster Moyo that “the person he may have seen at the scene could be amongst the people he is seeing.” He also told Forster Moyo that he should walk from left to right and the moment he got to the person concerned he should touch him. Forster Moyo indeed walked from left to right and when he got to Accused One he touched him and a photograph was taken.

After the photograph was taken of Accused One he asked him if he had any complainants to which he stated that he had none.

The last witness was Collen Dhlamini, who is also a member of the police force and was a photographer at the time. His evidence was solely to do with the photography process under instructions from Detective Chief Inspector Stephen Mpofu.

The appellant also attacked the identification parade.

The need for a fairness in the conduct of an identification parade cannot be overemphasised. The courts will always exercise caution where evidence of visual identification is concerned. The cardinal question is: is it possible that the witness was mistaken? 

The relevant questions which the court should focus on are:

“(1) For what amount of time did the witness have the accused under observation?

(2) What was the distance between the witness and the accused at the time of observation?

(3) What were the lighting conditions at the time?

(4) Were there any objects in the way which would have prevented or obscured observation?

(5) Does the witness have good or poor eyesight? Does he wear glasses and did he have them on at the time?

(6) Did the witness see clearly the accused's face or only the rest of his body?

(7) Had the witness known the accused previously and if he had, how well had he known him?

(10) If the accused has no distinctive facial or other features, how can the witness be certain of the identification?”

The background facts are the following:

Counts 1, 2 and 3

On 17 April 2007, at about 2300 hours, the appellant was alleged to have unlawfully broken into a kitchen hut at Cornelious Akabondo's homestead at Village 2 Insuza. In this hut were four women fast asleep i.e. Bridget Akabondo, Gladys Thebe, Nakuluyi Akabondo and Debra Akabondo. The appellant allegedly awakened the women and ordered them to cover their heads with blankets and not to make any movements. Thereafter, he allegedly robbed Bridget Akabondo of Z$20,000=. Thereafter, he allegedly raped Debra Akabondo. To achieve all this, the appellant allegedly threatened to harm these women with an axe and knobkerrie if they did not submit to his unlawful demands.

The appellant raised a defence of an alibi. The main issue was whether the appellant was properly identified as the intruder. This is a straight forward denial of the prosecution case on the issue of identity.

It is trite that there is no onus on the accused to prove his alibi, if, on all the evidence, there is a reasonable possibility that the alibi is true; there must be the same possibility that he did not commit the crime and he is entitled to be acquitted - R v Dube 1915 AD 557…,; R v Biya 1952 (4) SA 514 (A)…,; and S v Mutandi 1996 (1) ZLR 367 (H)..,.

The State exhibited a cavalier approach towards the crucial issue of identity in this case. This seems to be a common error by prosecutors these days. Such a lackadaisical way of adducing identity is disturbing as it results in acquittals even when the State has evidence at its disposal to prove the guilty of the accused. Identification parades have become a rarity. In this case, such a parade was necessary as the witnesses did not know the intruder prior to the offences. Only one witness claims to have identified the appellant during the brief moment when he allegedly lit a match. This issue was not carefully canvassed in detail. Suggestions of factors to be investigated included, but are not limited to – lighting, visibility, eyesight, extent of prior knowledge, accused's face, voice, build, gait and dress etc. This issue was aptly captured by HOLMES JA in S v Mthethwa 1972 (3) SA 766 (A)…, in the following terms:

“Because of fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused, the mobility of the scene; corroboration, suggestibility, the accused's face, voice, built, gait and dress; the result of identification parades, if any, and of course, the evidence by or on behalf of the accused. The list is exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighted one against the other in light of the totality of the evidence and the probabilities.” 

S v Mehlaphe 1963 (2) SA 29 (A); S v Ndlovu & Ors 1985 (2) ZLR 261 (S)…,; S v Dhliwayo & Anor 1985 (2) ZLR 101 (S)…,; S v Mutandi 1996 (1) ZLR 367 (H)…,; and S v Vhera 2003 (1) ZLR 668 (H)…,.

In casu, the learned Regional Magistrate made a bald statement that the appellant “was properly identified.” The record is, however, silent on what the magistrate relied on in arriving at that conclusion.

As alluded to above, the offences occurred during a dark night. The witness did not have prior knowledge of the assailant. The witness only saw the alleged intruder briefly when a match was lit.  The record does not say when the witness next saw the appellant and under what circumstances.  With this in mind, the respondent does not support the conviction in Counts 1, 2 and 3. The concession, in my view, is properly made as it is unsafe to sustain the conviction in such circumstances.

In Counts 1, 2 and 3, the appellant is accordingly entitled to acquittal….,.

The appellant in this matter noted an appeal against both conviction and sentence of the court a quo. After listening to legal practitioners representing both parties we dismissed the appeal in its entirety and indicated that out full reasons would follow.

These are they.

The appellant pleaded not guilty to a charge of theft where it was alleged that on 9 December 2010, along 3^rd Street, Kwekwe, he took $113= cash the property of Willard Sibanda knowing that Willard Sibanda was entitled to own, possess, or control the property or realising that there was a real risk or possibility that Willard Sibanda was so entitled to own, possess or control the property and intending to deprive him permanently of his ownership, possession or control.

In summary, the State Outline was this. On 9 December 2010, at 0800 hrs, when the complainant was in the Central Business District in Kwekwe he was approached by the accused who offered him a job. The complainant accepted the offer of a job. Thereafter, the accused gave the complainant an envelope and asked the complainant to put all his money into that envelope. The complainant put his money, amounting to $113=, into the envelope. The accused then referred the complainant to another person in the marketplace where he was going to commence working. Before the complainant left, the accused had changed the envelopes. He then handed the complainant a wrong envelope containing pieces of flour paper. The complainant proceeded to the marketplace to start his job but found no person answering the description given by the accused. He returned to where he had left the accused but the accused was no longer there. He was nowhere to be seen in the vicinity. While still disappointed because he could not get the promised job, he opened the envelope into which the accused pretended had his money. He was shocked to discover that he had been conned of his money. He was a victim of an 'Envelope Switch.' The complainant went to report the matter to the police leading to the arrest of the accused. Out of the $113= stolen $73= was recovered.

The accused's Defence Outline was that on the day in question he never came anywhere near the area indicated by the complainant. He said he had come from Gokwe on the day in question to process his brother's death certificate. He came from Kadoma and went to the Civil Court where he intended to register the estate of his late brother. Strangely, a certain police officer stopped him and asked him how much money he had. He was then arrested on the allegations that the complainant had been conned of some money. The police officer went on to say he believed it was the accused who had done so. He concluded that that was a clear case of mistaken identity.

The evidence adduced from the complainant was that he had arrived in Kwekwe between 9am and 10am from Zhombe. When he was near a flea market he met the appellant who engaged him in a conversation. A certain youngster arrived at the scene. The appellant asked the complainant and the youngster to go and assist him in loading his goods. He led them towards Globe and Phoenix. They got to a certain place where he told them to wait while he went away for a while and returned. On his return, he told them that they were not supposed to take anything with them. He gave the complainant one of the envelopes which he had and told him to put his money in there. The complainant had $113= which he put in the envelope. The man took the envelope from the complainant and sealed it and gave it back to him. Thereafter, the man sent him to go and look for a motor vehicle similar to the one the complainant had seen with him (conman). The complainant set out for a wild goose chase. Of course, there was no such motor vehicle. He gave up the search for a non-existent motor vehicle and decided to go back to where he had left the conman and the youngster but they were nowhere to be seen. He then decided to go and do the business that he had gone to Kwekwe for. He had gone all the way from Zhombe to Kwekwe to buy a mobile phone, a pair of shoes and some clothes. When he opened the envelope into which he had put his money, but sealed by the trickster, he discovered that it was stuffed with pieces of flour paper. 

His money had been stolen by the trickster.

The complainant said he had spent some time with the man who stole his money but he thought it was less than 20 minutes. The tricks were being executed in broad daylight. The complainant observed the person clearly by what he was wearing and the bag he was carrying.

The complainant went to the police to report the matter but the police were of no assistance at that stage. He left the police camp but as he was walking in town, just behind the court building, he fortuitously saw the trickster still in the same attire and carrying the same bag. The complainant looked for a police officer and pointed the conman to him. The policeman then arrested him.

The conman was the appellant.

The complainant ruled out the possibility of mistaken identity. The appellant conned him and disappeared but he fortuitously met him again after 1 hour 30 minutes - still in the same attire and carrying the same bag – in broad daylight. The complainant spent sometime with the appellant before he was conned. The appellant and the complainant were close to each other as the appellant was making false promises to hire him. They walked together towards Globe and Phoenix. The appellant, at some stage, left the complainant for a while and returned. It was only after his return that the appellant stole the complainant's money.

The identification was so positive that it did not require any corrobation as chances of the witness being mistaken were non-existent in this particular matter. The trial court cannot be faulted for making that finding. Similarly, the court cannot be faulted for rejecting the appellant's story. 

The Accused number 4's defence of alibi was poorly put across as it did not follow the very basic approach that such a defence requires. The accused lacked the conviction of sustaining such a defence by failing to present to court tangible evidence in support of such a defence.

Where such a defence is raised it is very basic that evidence be tendered to sustain it.

It is the appellants' arguments that their identities were not positively established, and, as such, the complainant wrongly implicated them.

In his Defence Outline, the accused stated that he had spent the whole day, on 24 June 2009, at his homestead with his wife and son.

This alibi is not sustainable because the same wife told the police and Farai Mhere that the accused had left home that day only returning home in the early hours of the morning, shirtless, to burn his trousers.

In any event, there was no alibi evidence other than the accused's mere say so.

The appellant's grounds of appeal, as amplified in his heads of argument, are that he was not in that vicinity of the scene of the crime at the time and that there was lack of direct or conclusive evidence to prove the commission of the offence beyond reasonable doubt.

It is the appellants' contention that on the day in question, he was at home in the morning. In the afternoon he went to a party and was there between 1400 hours and 1800 hours, therefore, he was nowhere near the scene of the crime.

The issues here are that of the appellant's identity and his alibi….,.

The appellant was consistent and persistent in his plea of not guilty. He queried the manner the four year old complainant implicated him. The complainant's father assaulted him, which he viewed as undue pressure to extract an undeserved and unwarranted confession. 

In his Defence Outline, Accused 1 stated that he knows nothing about the charge levelled against him, he does not know Accused 2 at all, he was never at the intersection next to Food 4 Less on the day in question and that he was linked to the offence by virtue of a cellphone he was given by certain unnamed individuals he had given a lift in his Ford Laser vehicle in lieu of payment for the lift.

In his Defence Outline, Accused 2 stated that at the time of the alleged offence he was detained at Bulawayo prison on a separate charge of plain robbery. He stated that the police picked him up from prison about 12 September 2009 and assaulted him to force him to admit having committed the crime of murder. He also denied knowing Accused 1 prior to meeting him at Bulawayo Central police station after he had been taken from prison….,.

Detective Assistant Inspector N. Nyoni is attached to CID Homicide in Bulawayo. His evidence is to the effect that he witnessed the recording of warned and cautioned statements from the accused persons. He is the one who conducted an identification parade on 14 September 2009. He informed the two accused persons that they had a right not to participate in the parade but the accused persons elected to do so. The two were in positions four (4) and eight (8) in the parade of twelve (12) participants. The identifying witness pointed them out and positively identified the two (2) of them by touching each on the shoulder.

Detective Assistant Inspector Albert Zhou's evidence is to the effect that he participated in conducting the identification parade as a runner. Detective Seargent Chozi's evidence is that during the parade conducted on 14 September 2009 he took part as a witness guard. Nkosilathi Sibanda had no prior contact or sight of the participants of the parade….,.

In examining the evidence of identification, we are mindful of the pronouncement of HOLMES JA in S v Mthetwa 1972 (3) SA 766…, where he said:

“Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest; the reliability of his observation must also be tested. This depends on various factors, such as lighting; visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades; if any, and of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors; or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in light of the totality of the evidence, and the probabilities.”

We have warned ourselves against the risks attendant upon identification. We have noted that the parade itself was not properly conducted especially as it would appear that one of the investigators is the one who led the witness to the parade although the parade itself was conducted by someone else.  We have noted that the participants were just clustered together dressed differently and not of the same build. In spite of all this, our view is that the identifying witness - whom we have found to have been impressive indeed and who stated that his eyesight was perfect - spent a long time, very close to, and had close contact with the suspects in the vehicle. He was therefore able, in view of proximity, opportunity, and contact to observe them.

The salient facts were that on 30 July 2003, at about 2130 hours, the complainant, a medical doctor, was driving his VW Polo Classic motor vehicle along Cecil Avenue towards Matsheumhlophe. He parked his vehicle outside the gate of 113 Edenfield Road. Whilst waiting for the gate to open, a vehicle parked behind him. The complainant turned around and saw the driver of the said vehicle point a pistol towards him. Two of his assailants got out of the vehicle. They opened his car door and dragged him out of the vehicle. They robbed him of his phone, wallet and wrist watch. They forced him into the back of their vehicle and drove away with him. After driving him to an unknown location, they removed his shoes and dropped him and left. The appellant was arrested on 19 August 2003 at Bulawayo Central Police whilst visiting detainees at the police station. An Identification parade was held and the complainant identified the appellant.

The issue, in casu, is one of identity.

Immediately after being identified, the appellant raised an objection on the manner in which the identification parade was conducted. Detective Assistant Inspector Foto, who conducted the identification parade, noted the appellant's objection in the following terms -

“Was identify because of my eye, once saw witness in office.” [sic]

It is the conduct of the identification parade that is in issue.

It is trite that to produce reliable evidence, an identification parade must be carried out fairly. It must be carried out carefully. Judges Handbook, PROF G FELTOE…,.  The learned author outlines the following basic requirements for a fair parade;

“(i) It must be conducted by an officer who has had nothing to do with the investigation into the case;

(ii) The officer conducting the parade should not call the witness to the parade;

(iii) A sufficient number of persons, say ten, should form the parade;

(iv) The persons on the parade must be approximately the same build, height and complexion and they should all wear similar clothing, and, preferably clothing similar to that worn when the crime was committed;

(v) The witness must be kept somewhere where he or she cannot see the prisoner being guarded by police officers or the parade being assembled;

(vi) The witness should not be told that the suspect is on the parade but should only be asked if he or she saw the suspect commit that crime is on the parade;

(vii) The witness must be left to pick out the person he or she saw commit the crime, if he or she can, without any form of assistance or prompting;

(viii) The police should not attempt to point out or suggest someone either before or during the parade;

(ix) It is also important that the identification parade be held as soon after the commission of the crime as possible to avoid memory impairment occurring with the passage of time – Mavunga 1982 (1) ZLR 63 (S).

In Goma HH21-93, the court stated that evidence must be led showing the proper conduct of an identification parade in accordance with established police procedures with all its safeguards. Unless these essential requirements are complied with, any evidence of identification at a parade must not be relied on…., Masawi & Anor HH111-94…,.”

In casu, the conduct of the identification parade leaves a lot to be desired.

First, it was conducted by the Investigating Officer (according to the identification parade notes which read:-

“Officer conducting parade: 03939 T D/A/I Tada P…,.

Investigating Officer: D/A/I Tada…,.”

There is nothing to show that the identification parade was conducted by D/A/I Foto in the identification parade notes. This only emerged from the viva voce evidence of Detective Assistant Inspector Foto. Be that as it may, it is common cause that the Investigating Officer, Tada, was present during the identification parade. It is clear that the identification parade was conducted by the police officers directly involved in the arrest of the appellant and investigations of the case against the appellant. This is a serious flaw in the conduct of the identification parade. In view of the objection by the appellant, the runner, Detective Constable Ndlovu and the witnesses guard, Detective Constable Samkange should have been called to give evidence. Failure to call them has resulted in a material break in the chain of evidence.

Further, the appellant has a distinct defective eye or cataract. 

If the witness, who is a medical doctor, saw and identified the appellant during the robbery, he would not have missed this feature of his face. If he missed the cataract because of the hat that the appellant was wearing during the robbery, then he is unlikely to have identified him during the parade.  The complainant confirmed that no other person had a cataract in the parade.

Further, the appellant established a possibility that the complainant saw him at the police station prior to the conduct of the identification parade. When the appellant cross-examined the complainant (at pages 11-12 of the proceedings) this is what transpired;

“Q. Now, if I put it to you that it is the first time when you saw me in handcuffs and leg irons in the Homicide Offices while you were busy filling in these forms?

A. Well I saw several prisoners because I went to that office several times so it is possible that I saw you.

Q It is possible you do not deny that?

A. It is possible you were in the office at the same time.” …,.

At page 15, when asked by the court, the complainant stated:

“Q. Did you see the accused person between the date of the offence and the date of the parade? Did you see him at the station?

A. It is possible that I saw him.” …,.

In her judgment, the trial magistrate conceded that there were problems with the conduct of the identification parade. She, however, convicted the appellant on the basis that if he managed to appreciate that the complainant had seen him prior to the identification parade, he must be the person who robbed him. In short, it was inferred that the only inference to be drawn is that he was at the scene of the robbery. That obviously is not the only inference to be drawn from that fact. Another simple inference is that when he saw the complainant being brought to identify him he immediately realized it is the same person he had met as Homicide Offices earlier on.

With all these flaws, the evidence of the identification parade is unreliable. There is no other evidence linking the appellant with the offence. 

In order to deal with these two grounds of appeal, it is necessary to set out the findings of the trial court and decide, in light of the evidence led in the court a quo, whether there is merit in these two grounds.

Evidence led from no less than five witnesses establishes the following:

Obey Chiwara, the complainant, told the court that on 10 April 2012, the first appellant, together with the second appellant, approached their bus at the Roadport Bus Terminus. The first appellant identified himself as Detective Kambarami. He was dressed in a suit. He demanded US$2,000= for their bus not to be impounded. The second appellant was dressed in police uniform. They both claimed that the bus carried smuggled goods. According to the witness, the first appellant then produced a firearm from his jacket stating that they were not joking. The witness, who is a bus conductor of the bus which had just arrived from Zambia, then handed over US$980= to the two. They drove off in a white vehicle which had arrived at the scene after one of them had spoken on his mobile phone. The bus crew and the passengers discussed the incident. It was decided not to report this incident since, according to the witness, the two were well-known for this kind of behavior. It was felt they would return and appropriate action would then be taken. They decided to entrap them. Sure enough, on 12 May 2012, the duo struck. Except for himself, the rest of the bus crew was present. He learnt later how these two were driven to the police station and arrested for the robbery of the 10^th of April 2012.

Mafios Meki, a traveller who was on board the bus on 10 April 2012, when the offence was committed, stated that the first appellant was dressed in a suit and the second appellant in a police uniform. They had taken the conductor to the front of the bus which was lit up by both the headlamps of the bus as well as the flood lights at the terminus. He had also spoken to the second appellant during the commission of the offence and therefore had had a good look at him. His evidence corroborated that of the first witness in that they both confirm that they each spoke to one or other of the two appellants in a well-lit area. When he was later summoned to an identification parade, he was able to pick out the second appellant. He described the features by which he was able to pick out the second appellant; which features he had taken note of earlier the previous month.

Another witness, Caiphas Rino, the bus driver, also confirmed that the two appellants were the same people who had accosted the bus crew and relieved the conductor of cash in April 2012 and were arrested a month later when they attempted to commit the same offence using the same tactics at Roadport Bus Terminus. Regarding the incident in April 2012, the bus driver described the first appellant as having been dressed in a suit whilst the second appellant was in police uniform. He confirmed what Mafios Meki had told the court; that the second appellant had boasted that he had once had an altercation with the bus conductor, the first State witness, when they were committing the present crime in April 2012. He maintained that on the day of their arrest, the two appellants had been spotted at a service station near Roadport Bus Terminus called Engen. He had identified them and caused their arrest.

Naboth Chikomo, a taxi driver who plies his trade around the Roadport Bus Terminus area testified that on the day, in April 2012, when this crime was committed, he had identified the first appellant during the commission of the crime. The first appellant had chased him away on that occasion. He was later called to an identification parade where he was able to easily pick the first appellant out and described the features through which he had identified the first appellant. He disputed the evidence given by the appellants in respect of the manner in which the identification parade was carried out by the police. His evidence tallied with that of the police officer who carried out the identification parade.

Questions of identification are always difficult. This is the reason why extreme care should always be exercised when it is proposed to carry out identification parades, that is, to prevent the slightest hint reaching the witness of the identity of the suspect. People often resemble each other and it is not uncommon that strangers are sometimes mistaken for old acquaintances. In S v Dhliwayo and Another 1985 (2) ZLR 101 (SC) it was held that:

“Where an identifying witness has been shown to be careful and truthful, it is not always necessary for the witness to be asked to give details of every feature by which he identified the accused. Evidence of identification, however, must be treated with some caution and the reliability of the witness's evidence must be tested against the cumulative weight of such factors as lighting, visibility and eyesight, his proximity to the accused: his opportunity for observation, the extent of his prior knowledge of the accused, the accused's features and appearance, the result of an identification parade and the accused's evidence.”

In S v Ndhlovu and Others 1985 (2) ZLR 261 (SC) it was similarly held that the positive assurance of identification by a single honest witness was not enough. The court went on;

“The possibility of a mistake occurring in the identification, especially where the witness has not known the person previously, demands that the greatest circumspection should be employed. As WILLIAMSON JA warned in S v Mehlape1963 (2) SA 29 (AD) at 32F-G:

'The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence.'

In similar tone, HOLMES JA, in S v Mthetwa1972 (3) SA 766 (AD) at 768 A-C, remarked with his accustomed lucidity:

'Because of the fallibility of human observation, evidence of identification is approached by the courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration and suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in light of the totality of the evidence, and the probabilities.

(See also Aluverino v R 1963 R&N 614 (SR) at 615 I-616 H.) Hence, a cautious approach is necessitated, not only because a conviction is sought upon the evidence of a single witness, but also because the identification of an accused person is a matter notoriously fraught with error. It is an area wherein the potential for honest mistake looms large.'”

In S v Nkomo 1990 (1) SACR 682…, McNALLY JA put the issue of identification this way:

“Very broadly speaking, the judgment of LORD WIDGERY was to the effect that good identification does not need corroboration or support but poor identification does. Good identification he defined by examples;

(1) A kidnapped person kept for many days in the company of his kidnapper, who identifies him without hesitation months later.

(2) A suspect person kept under observation and seen by two policemen several times, identified by them six months later.

(3) A colleague, known from work for several years, seen clearly stealing a wallet from a locker.

Such cases, said LORD WIDGERY, could safely be left to the jury to decide.

On the other hand, identification is poor 'when it depends solely on a fleeting glance or on a longer observation made in difficult conditions.' Recognition, he said, elsewhere in the judgment, 'may be more reliable than identification of a stranger.' In such cases, corroboration or support (and odd coincidences, unexplained, can, he said, be regarded as support) should be required.”

The court a quo, in a well reasoned judgment, set out how it treated the evidence on identification and concluded that the State witnesses could be relied upon as truthful and not being mistaken when they identify the appellants as the culprits. It is important that the State witnesses had prior knowledge of the two. That is why they resolved not to report the offence on the day it was committed. They knew that these two, apparently, had a habit to harass bus crews over unsubstantiated allegations so as to gain some advantage of sorts. Their predictions proved true as, indeed, the two appellants struck the following month. It is no coincidence, in my view, that the first appellant, who described himself as Detective Kambarami, in fact turned out to be one Kambarami when he was picked out of an identification parade. This fact lends support to the correctness of the appellants by the State witnesses. It is also no coincidence that indeed they are police officers - both of them. Again, this corroborates and confirms the correctness of the evidence of identification relied upon by the court a quo. They were known by the taxi driver as well as by the traveller who was present when the appellants committed this crime.

I am satisfied that the ever-present danger of honest but mistaken identification of an accused has been satisfactorily excluded in this case. In the result, the conviction of the two appellants is unassailable.

In his evidence, Methulisi Dube alledged that on the day in question he was woken up by the noise which the accused had made after opening the window and fishing out his jacket at about 0200hrs. He said, despite being dark outside, he was able to peep out and identify the accused who was not known to him. He was later told by the police, after the accussed's arrest, that the accused had confessed to committing the offence at his house and made indications in the presence of his brother Thulani Mbano….,.

Under cross examination by the accused, Methulisi Dube admitted that he only identified the accused as the culprit at the police station after the police had indicated the accused to him. All he said is that the accused looks similar in stature to the silhouette he saw outside his house when the offence was committed….,.

Methulisi Dube's evidence, in Count 2, on identifying the accused, is clearly not credible and his property was not recovered which could link the accused to the offence.

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 8pm 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 1 with 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.” …,.

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…,.

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 8pm; the moon was shining…,.”

All the above is well in sync 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 1?

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 facts of this case are as follows.

The appellant and the mother of the two deceased children were known to each other. On 21 November 2011, the deceased's mother, one Lydia Mangena, escaped from her thatched house through a back window. This was shortly after 9:00pm. A man had tried to break into her hut, and, fearing for her life, she had then jumped out of the hut, and, although she was pursued by the man for a distance, managed to escape. She then went and made a report to one Austin Marume, a member of the local neighbourhood watch committee. At about the same time, she noticed that the hut from which she had escaped and in which her two minor children, Pretty Kangausaru, aged six years, and Nigel, aged twenty three months, had been sleeping, was on fire. Together with Austin Marume she ran back to her homestead. She found her uncle having retrieved Pretty Kangausaru from the inferno. Pretty Kangausaru, however, had sustained severe burns. The other child, Nigel, was burnt beyond recognition. Pretty Kangausaru died on the way to Mnere Hospital.

It is common cause that in either case the cause of death was “hypovolaemia 2⁰ Burns.”

In the court a quo, the appellant denied being present at Lydia Mangena's homestead on the night in question. He told the court he had left his homestead at about 7:00pm in order to go fishing at a place called Mataga.

What was in issue before the court a quo was the identity of the person who set on fire the hut in which the two children had been sleeping.

Lydia Mangenga gave evidence and narrated how she knew the appellant. They had attended the same school years previously. She had then left for Karoi where she continued her education. She had then returned to Mberengwa in 2009 after the death of her father and was staying at her late father's homestead together with the two children. From August 2011 until shortly before the fateful event, the appellant had approached her and made advances which she turned down. At one stage, he even threatened her and showed her his Zimbabwe National Army identity card. Subsequently, the appellant had taken her cellular handset. With the help of neighbours, the cellular phone was recovered from one Claris Keto. Following the recovery, the appellant had then approached her and assaulted her at the local business centre. The appellant was arrested and placed on remand for having perpetrated the assault on her.

It was her evidence that on the night in question, the appellant came to her hut and knocked. On the second knock she asked who it was. The man outside responded that he was Desire Dewa and that he had come to ask for forgiveness for the assault and threats that he had previously issued.

She told the court she knew his voice very well.

Thereafter, when she jumped out through the window, she saw the appellant at a distance of about three metres in full moonlight. She was able to see that he was, inter alia, wearing his yellow and green T-shirt. Her evidence was that, owing to the moonlight, visibility was so good one could see for a distance of about a hundred metres.

The court a quo believed her evidence on identification.

It found that she knew his voice very well and that she could not have wrongly identified him. The court also accepted her evidence that the appellant in fact identified himself when she asked who it was. The court a quo also believed her evidence that after she jumped out of the hut through the back window, she not only saw the appellant but also identified the yellow and green T-shirt that he was wearing. That the appellant had such a T-shirt was not in dispute.

Abiot Sibanda, a State witness, also gave evidence to the effect that the appellant was at the local bottle store when it closed at 8:00pm. 

This was contrary to the claim by the appellant that he had left the area at about 7:00pm to go fishing at Mataga.

The evidence of the identification of the two appellants by Nkosilathi Sibanda was challenged on the grounds that the participants were not of the same height, did not wear similar clothing, and that Nkosilathi Sibanda was escorted to the parade by the Investigating officer.

They also challenged the reliability of the evidence of Nkosilathi Sibanda on identification on the grounds that the conditions prevailing during the time he was with the assailants were not conducive to proper identification.

In view of the fact that the appellants confessed, in their warned and cautioned statements, being with Nkosilathi Sibanda in the motor vehicle and treating him in the manner he described removes the case from that of circumstantial evidence and mistaken identity.

The facts surrounding the commission of the offence were not in dispute. They can be gleaned from the evidence of State witnesses who included three school children, Beatrice Shoko aged five (5) years, Chidochashe Hove aged nine (9) years, and Davison Dube aged thirteen (13). All the three children, together with the deceased, Rosemary Mbundaya, attended at Mberengwa Primary School.

The evidence of Davison Dube was to the effect that at about 1pm he left school in the company of the deceased and her friend, Christina Muyambo, going to attend a road show at a bus terminus where music was being played. When they got to the road show he found the appellant dancing to the music.

They sat on a car wreckage. After a while, the appellant came to where they were and asked the deceased where she lived. The deceased gave the appellant the name of a village next to hers. When the appellant left he asked the deceased why she had lied contrary to the instruction from the head teacher that they should always tell the truth. Davison Dube said the appellant returned and ordered him to leave the car wreckage. He did, leaving the appellant talking to the deceased. At the end of the road show adults were invited to pick booklets that were on offer. He saw the appellant pick a booklet. The deceased told Christina Muyambo that it was time for them to go home but the latter said she was not yet ready to go home. The deceased then left the road show going home.

Davison Dube said he had the appellant in sight for about 45 minutes at the road show. He wore a bluish pair of trousers and put on a white t-shirt with vertical stripes. The appellant wore a dreadlock hair style.  Although the appellant had now had his hair shaved off Davison Dube was able to positively identify him as the young man he saw at the road show amongst ten young men of similar height who were lined up in an identification parade behind a building at Mberengwa Police Station on 31 October 2006.

Davison Dube identified the appellant as the young man he had seen at the road show by his face and clothing. The appellant was wearing a bluish pair of trousers and putting on a white t-shirt with vertical stripes in the identification parade. He was adamant that no one had assisted him with the identification of the appellant.

It was his evidence that he could not forget the appellant because he had had him in sight for not less than 45 minutes on 25 October 2006. Davison Dube denied the allegation by the appellant that he had seen him in a police truck at Village 3 Radway Farm before the day of the identification parade. He also vehemently denied the allegation by the appellant that they knew each other from the village before the day of the road show. Davison Dube said he saw the appellant in a police truck after the identification parade.

It is common cause that when the deceased left the road show going home she caught up with Beatrice Shoko and Chidochashe Hove who had not been at the road show. The evidence of Beatrice and Chidochashe was to the effect that soon after the deceased joined their company they saw a young man following them. When the young man came up to where they were he asked them which families they came from. When they told him, the young man went past them and walked in front of them. As they got opposite a hill the young man turned and walked towards them.

On getting to where they were, the young man made as if he wanted to go between them as they also moved to the sides to give him way. He suddenly caught hold of the deceased by the hand and dragged her into the bush towards the hill as she screamed for help. The two girls ran home in fright and reported to their parents that the deceased had been kidnapped by an unknown man.

Beatrice Shoko said the young man they saw kidnap the deceased wore a pair of white shorts and put on a white t-shirt. He wore a dreadlock hair style and was holding a book. She picked the appellant at the identification parade on 31 October 2006 as the young man she had seen on 25 October. When asked how she was able to identify the appellant as the offender in the identification parade Beatrice Shoko said she recognized his face and the clothes. It was her evidence that at the identification parade the appellant was wearing a pair of white shorts and putting on a white t-shirt. She denied the allegation by the appellant that she was able to identify him because she knew him as he used to visit her brothers Limkani and Sparks. She vehemently denied that these two young men were her brothers.

Chidochashe Hove also said the young man who kidnapped the deceased wore a dreadlock hair style.  She said he wore a pair of white shorts and put on a blue shirt. She also said she was able to pick the appellant at the identification parade because he was still wearing the same clothes.

It is also common cause that upon receipt of the report of her daughter having been kidnapped Maybe Nyoni ran to the scene of the crime followed by her late husband who was not feeling well. After searching the area near the hill to no avail Maybe Nyoni went to Mberengwa Police Station to report the disappearance of her daughter. The police appear to have disbelieved her story and dismissed her. She went back and joined other villagers in search for her daughter.

The body of the deceased was found lying on the river bank. The bluish pant the deceased had been wearing when she went to school that morning was missing. The skirt she had worn under the uniform had been removed and tied tightly around her neck. The head had a skull fracture and four blood-stained big stones lay next to the deceased's head.

The matter was reported to the police who were quick to attend the scene of the crime this time. Kenias Razuwika, who was the Officer-in-charge crime at Mberengwa Police Station, attended the scene of the crime at about 1750 hours on 25 October 2006. He observed that the deceased had a fracture on the left side of the head. The left elbow was also fractured. There were four blood stained big stones near the deceased's body. He took the stones as exhibits.

The body was not taken for a post-mortem examination before 31 October 2006. At the time the body was examined by a medical doctor at Mnene Hospital, on 31 October 2006, it was already in the early stages of decomposition. It was no longer possible to establish evidence of rape. The post mortem examination report shows that the deceased had the following injuries; fractures behind and above the right ear. There was dry blood in the nostrils, face, mouth, lips and both ears.

The cause of death was found to be “cardio respiratory arrest due to head injuries.”

There is no doubt from the evidence of the commission of the offence that the person who kidnapped and killed the deceased did so with the intention of bringing about her death. The fact of the murderer having the specific intention to kill the deceased is established by the evidence of the skirt which was tied tightly around the deceased's neck to strangle her and the fractures of the skull inflicted deliberately with blunt instruments.

It is also common cause that in the night of 26 October 2006, the appellant was arrested at Number 53C - Mine in Mberengwa where he worked as a gold panner. It is also common cause that on 31 October 2006 an identification parade, in which appellant participated, was organized and conducted at Mberengwa Police Station.

There were nine young men of the appellant's height who were chosen randomly from the local business centre to take part in the parade. The nine young men wore dreadlocks. The identification parade was conducted from a place behind one of the buildings at the police station.

The participants were unknown to the witnesses who were in a victim friendly office whence they could not see what was happening at the identification parade. The appellant who had shaven his hair wore a bluish pair of trousers and put on a white t-shirt with vertical stripes. He was advised by the officer conducting the parade that he had a right not to take part in the identification parade. It was further explained to him that he was free to choose any place in the parade.

The appellant chose to stand at the far end of the parade and became the tenth participant. Of the six witnesses who took part in the identification three State witnesses Beatrice Shoko, Chidochashe Hove and Davison Dube picked him out as the offender. After each witness identified him, the appellant would be told by the officer conducting the identification parade that he had a right to change position. He decided to remain in the same position.

Photographs of the young men lined up in the identification parade were taken. Photographs of each witness touching the appellant as he or she identified him were also taken. They were produced in court as exhibits.

Although counsel for the appellant, at the beginning of the hearing of the appeal, sought to impugn the credibility of the identification evidence on the ground that the parade was not organized and conducted in accordance with standard requirements, it is clear from the evidence that the organization and conduct of the identification parade met the required standards. Not only were the participants made to line up at a place hidden from the witnesses, all the nine wore dreadlock hair styles.

The appellant, who had worn a dreadlock hair style at the time the offence was committed, whether by him or not, had shaven his hair at the time he took part in the identification parade. The police had clearly made it more difficult for the child witnesses who had seen a young man wearing a dreadlock hair style on 25 October 2006 to identify him nonetheless when he no longer wore the dreadlocks. The clear possibility was that if the children had acted on their imagination they would have picked one of the young men in the identification parade who wore a dreadlock hair style.

The appellant himself realized the credibility of the identification by the three witnesses because he alleged, in evidence, that they had seen him before the identification parade. He was in fact challenging the witnesses to admit having seen him either in a police truck or at their villages. The witnesses vehemently denied the allegation sticking to their evidence that the positive identification of him as the offender was based on their observation of him on 25 October 2006.

On the credibility of the State witnesses, the court a quo had this to say. 

On Beatrice Shoko it said:

“The court found her to be a very intelligent young girl and was very coherent and consistent and straight forward in giving her evidence. Despite the fact that the deceased was her sister she, however, remained calm throughout her evidence. We therefore have no hesitation but to accept her evidence as credible.”

On Chidochashe Hove, the court a quo said:

“Despite the absence of dreadlocks she was able to positively identify him at the police station….,.

Despite her age, the witness struck the court as an honest witness who withstood all the skillful cross examination by the defence counsel. The court has no doubt that she was a credible witness. Her evidence corroborated that of Beatrice Shoko in all material respects.”

On Davison Dube, the court a quo said:

“He also did not see the accused until at the police station when he positively identified him as the man whom he had seen at the business centre. He managed to identify him even when he no longer had dreadlocks. When asked as to how he had identified him he said he had identified the accused by his face as opposed to his clothes. He also stated that the deceased was wearing a blue trousers and a white shirt. Again, this witness was subjected to a rigorous cross-examination but this did not in any way sway him from his evidence which he gave in a straight forward manner. This witness' evidence although it is at variance with one of the above witnesses as far as the clothes are concerned he no doubt corroborated both of them in terms of identifying accused by his face despite the absence of dreadlocks.”

The court therefore has a case in which the trial court found each of the child witnesses called by the State to have given credible evidence with the effect that their evidence was found to have corroborated each other on the crucial fact of the identification of the appellant as the offender. Unless it is demonstrated that a trial court fell into error in the assessment of the credibility of witnesses it had the advantage of seeing and hearing whilst giving evidence an appellate court would not lightly interfere with a finding of credibility by a trial court.

In this case, the court a quo was aware of the dangers of mistaken identification where child witnesses are involved. It clearly looked closely at the circumstances of the case to see whether there were factors which militated against acceptance of the evidence of the witnesses as credible.

It is of particular importance that all the three witnesses attested to seeing a young man who wore a dreadlock hair style. Davison Dube had the young man within sight at the road show for no less than 45 minutes. The young man spoke to the deceased in his presence. He also addressed him directly telling him to leave the car wreckage. He saw him pick up a booklet at the end of the road show. The young man seen by Beatrice Shoko and Chidochashe Hove was in possession of what they said was a book. The ability of Davison Dube to describe the facts relating to the different encounters he had with the young man at the road show attests to the reliability of his evidence that the young man was the appellant.

The evidence given in support of the defence case corroborated the evidence of identification of the appellant as the offender. 

It is common cause that late in the afternoon of 25 October 2006 the appellant was at Number 53C - Mine when a white motor vehicle arrived. He mistook the motor vehicle for a police car and ran away.

Early in the morning of 26 October 2006, the appellant went to Tendai Muzenda's homestead. There he asked for a pair of scissors and a mirror saying he wanted to shave his hair. He told Tendai Muzenda that he wanted to remove the hair and ipso facto the dreadlocks to disguise his identity from the police because of an offence he had committed with one Newman. Although the appellant referred to an offence he said he had committed with Newman it is clear that he had all along worn the dreadlock hair style without any fear of identification.

On 15 November 2006, the appellant gave a confirmed warned and cautioned statement in answer to the allegation that he had killed the deceased. The appellant said:

“On 25 October 2006, from morning I was carrying gold ore with Tinaye with a scotcart. The scotcart broke down and we untied the donkeys. I then went back to the compound. A police vehicle arrived and then I ran away from them. I went to Tinaye's place until it was dark. After that I went back and slept in Number 71C - Mine. I woke up the following day and I went to Meredisi. When I got there I was barbed my hair by my sister-in-law Givemore's mother. I had always wanted to barb the hair because the hair had turned brown. I later went back to the compound and on the way I met Sparks who told me that the whole community was accusing me of raping and murdering the girl.”

Firstly, the reason he gave for having the hair shaven is at variance with the reason he gave to Tendai Muzenda.

Secondly, Tinaye gave evidence to the effect that he last saw the appellant at 12pm and did not see him until 4pm.

The evidence of Tinaye destroyed the appellant's alibi. 

This is an appeal against the decision of the magistrate, who, after convicting the appellant on a count of the crime of assault, sentenced the appellant to 12 months imprisonment, 4 months of which were suspended on the usual condition of future good conduct leaving the appellant to serve an effective prison term of 8 months.

The appellant was not satisfied with both the conviction and sentence. He accordingly noted an appeal with this Honourable Court. The grounds of appeal, which he supported in his heads of argument, are that -

1. The court a quo erred by accepting the evidence of the complainant in relation to the cursory identification of the appellant, and the fact that he was wearing white gumboots.

2. The court a quo further erred by accepting the evidence of Maxwell Kapara, the complainant's husband, as there were chances of collusion.

3. The court failed to compel the State to call the complainant's sons to testify.

4. The court a quo further erred by accepting the evidence of the arresting detail, Constable Isaac Hore, relating to the circumstances surrounding the recovery of the knife….,.

The respondent opposed the appeal against conviction….,.

The appellant pleaded the defence of mistaken identity. The fact that the complainant was stabbed with a knife was proved beyond a reasonable doubt. The medical report…, confirmed that.

The issue is whether the appellant was the one who stabbed the complainant or not.

The facts revealed by the record were that the offence occurred at about 7.00pm.

The appellant, at that time, was in the company of two other work persons. The appellant was wearing a pair of white gumboots. He proposed love to the complainant who turned the proposal down, shouting at the appellant in an angry manner. The appellant then stabbed the complainant on the hands with a small silver knife. The appellant ran away from the scene. He was pursued by a mob of people who apprehended, and assaulted, him.

The appellant, in his defence, said, at about 6.00pm he left his tuckshop and boarded a commuter bus to go home. He disembarked at corner-store and whilst on his way home two young men approached and robbed him. They stabbed him with a knife on the arm and head. They dealt a blow on his other arm with a metal object as well as on his head and he fell down as he was partially unconscious. His attackers looked for a motor vehicle to ferry him to the police station framing him as a thief. He was ferried to hospital from where he was discharged on 16^th December 2013. When he went to report the robbery which had occurred to him, the police told him that they were looking for him in connection with the present case.

Having considered the written and oral submissions as well as the evidence in the record, I am of the view that the conviction in casu cannot be faulted.

The complainant said that she identified the appellant because of the white gumboots. She indicated that the appellant was her assailant because after people ran after the appellant, who was now running away, as she was screaming for help, they apprehended him and a knife fell down from his pocket. She however, said she did not identify his face as it was 7.00 pm. She maintained that she identified the appellant with his white gumboots, and the tuckshop battery-powered light which was at the verandah. She, however, said the lights were bright to such an extent that one could only see the front of the tuckshop. She said she identified him further by his height as well as his big nose, though there was human traffic at the spot, of people who were disembarking from buses.

Maxwell Kupara, the complainant's husband, did not collude with his wife. He was a credible witness. He admitted that he did not see his wife being assaulted. He only later saw the appellant after the latter was apprehended by a mob of people. That is the moment he noted that the appellant was putting on white gumboots. He then saw the knife that was recovered from the appellant. His evidence was to the effect that his two sons were at home at the time the complainant was stabbed, hence the sons did not rob the appellant.

The arresting detail, Constable Isaac Hove, corroborated the fact that when he searched the appellant, at the time he was brought to Epworth Police Station at about 9.00pm on the 17^th of December 2013, he recovered a silver knife in his pockets. He noted that the appellant was wearing a pair of green trousers, t-shirt and white gumboots.

It is, therefore, pertinent to note that the appellant passed by the complainant's tuckshop at the material time. He was putting on white gumboots. The complainant was then stabbed by a man putting on white gumboots. The man was apprehended immediately, after a chase, and a knife was recovered. All this cannot be explained on the basis of coincidence. Further, it could not have been a coincidence that the appellant was being robbed by the complainant's sons. The court a quo cannot be faulted for dismissing the appellant's averment. It does not make sense that robbers would rob a person, injure him and then ferry him to the police. The correct position, as found by the court a quo, is that the appellant was chased by members of the public who apprehended him after he stabbed the complainant and took him to the police.

Jonathan Mutsinze's forehead wound became his identification mark by which he was easily picked up in an identification parade subsequently carried out.

It was submitted by defence counsel that Rudo Hove must not be believed as she sought to be an expert on people's voices.

But really, does it take any expertise for a person to recognize another's voice.

This court takes judicial notice of the fact that many a time a person can tell whose voice is speaking as long as they have heard that voice before and are used to it.

Accused One also told the court that he had a caretaker's role on Accused Two, as per the husband's instruction, meaning Rudo Hove is right when she says he did come on a number of occasions. By the way, he had a duty to take care of his friend's family. Again, the number of times Accused One came, between 13 and 14of February 2013, shows that he must have been a regular there. Rudo Hove found him seated on the veranda with Wizzy; he later came looking for Accused Two the following morning; he later participated greatly in the problem that followed after the death of the deceased. In fact, Rudo Hove says Accused One came the following morning looking for Accused Two. Accused One says he only came when he had been called and had been told by Accused Two of the deceased's death. Accused Two, when she answered a question about why she decided to call Accused One instead of telling nearby neighbours she said in fact she called Accused One who did not answer and he later came on his own without her having spoken to him.

This aspect of the evidence in the court record also shows that it is true, indeed, that Rudo Hove saw Accused One that morning when he came to look for Accused Two after she had gone for prayers.

Rudo Hove thus told the truth, her version of events cannot be faltered in any way in our view.

While it is permissible for the court to rely on evidence of footprints, there are a number of precautions to be observed before such evidence is used.

For instance, the witness must tell the court by what characteristics or peculiarities or marks he recognised the footprints as being those of the accused. It is the ability to give a precise and detailed description of the unique features of the print which points to reliable identification.

The applicant denies any knowledge or involvement in all the three Counts of armed robbery. The applicant raises the defence of an alibi; that on the dates these offences were committed he was out of Harare on business.

The applicant does not specify as to when he left Harare or when he returned. The applicant does not also state where he had gone or the nature of the business he had attended to.

The applicants attacked the decision of the trial court on the basis that -

(1) The applicants were not positively identified;…,.

The applicants contented that their conviction was unsafe and that they have bright prospects of success on appeal. The respondent, on the other hand, submitted that save for denying identity, the circumstances of the identification and the features of identification were not disputed by the applicants….,.

In casu, it is not in dispute that the applicants and the complainant knew each other prior to the commission of the offence. It is trite that a great degree of cautious approach is required where the evidence of identification is dependent upon the testimony of a single witness. This “precautious” approach is necessitated because the identification of an accused person is a matter notoriously fraught with error. It is an area wherein the potential for honest mistake looms large.

This was observed by GUBBAY JA…, in S v Ndlovu & Ors 1985 (2) ZLR 261 (S)…,; S v Dhliwayo & Anor 1985 (2) ZLR 101 (S).

In the present case…, it is not disputed that the applicants and the complainant knew each other before. Their defence is merely that they were not present at the scene of crime. Not only did the parties know each other before but they even talked to each other at close range. The area was well-lit by lights from the motorcycle. One of the applicants even remarked “aaah it's Gurumombe” to the complainant. When they were arguing between themselves the complainant was hearing their voices. This meant that the complainant saw and recognised the applicants and the applicants also equally saw and recognised the complainant.

There was therefore no issue of mistaken identity.

Constable Mushaninga came face to face with his assailant for about two (2) minutes, in broad daylight, with the benefit of an electric light in the bar.

The accused is dark in complexion and of medium height. One can easily describe him as tall or of medium height as there is no fixed point at which medium height ends and tallness begins when one is of medium height. Constable Mushaninga's description of the accused as of medium height or tall is of little consequence one way or the other in the circumstances of this case. These are only relative terms, which, standing alone are not of much use in the precise identification of an accused person.

What is material is that the accused bears a striking brand in the form of a bulge on his forehead.

This makes him an exceptional being - easily identifiable in a crowd. He stands out like a sore thumb. That being the case, and having regard to his own personal circumstances as a high ranking member of the MDC-T residing in the neighbourhood, and, coupled with his behaviour upon arrest, the possibility that he has been wrongfully identified is remote.

Constable Mushaninga's identification of the accused was amply corroborated by Inspector Nyararai who testified that he had seen the accused, Last Maengehama, earlier that day at Glenview 4 Shopping Centre actively participating in the MDC-T, t/shirt visibility day celebrations. He later saw him, again, at Glenview 3 Shopping Centre chanting slogans in front of Munyarari Bar where the deceased was murdered.

While the court is mindful of the need to exercise caution in dealing with the evidence of identification, in this case we are convinced that the danger of false or mistaken identification has been wholly excluded.

Constable Mushaninga did not know the accused prior to this day. He therefore had no motive to falsely implicate the accused of all people who were at the scene of the crime.

In any event, the appellant was not identified as having been present when the complainant was shot at. As such, it is difficult to find any basis for a sound conviction on a charge of attempted murder.

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,.

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

No two persons experiencing the same event have identical experiences particularly because they cannot be precisely at the same place at precisely the same time; BARRY R. MORRISON and WARREN COMEAU, Judging Credibility of Witnesses 25 Advoc. Q. 411 2001-2002…,.