Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

The five accused persons were charged with criminal abuse of duty as public officers as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].The allegations against them were that between 3-23 May 2017, at ZINARA, the five accused had unlawfully, and in common purpose with ...

HH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

The above two applications have been consolidated only for purposes of preparing one judgment that disposes of both applications.

The motivation for the consolidation is based upon the considerations that both applicants are co-accused in case no. Harare Magistrates Court CRB4105–4113/15 wherein they were arraigned for trial with six other co-accused. They are also co-applicants with their co-accused in case no. HC4098/19 wherein they seek a review of the criminal proceedings.

The applicants and their co-accused were charged with three offences. These are;

“Count 1: Attempt to escape from lawful custody (as defined in section 189(6) as read with section 185(1)(b)(4) of the Criminal Law Codification and Reform Act [Chapter 9:23].

Count 2: Incitement in aggravating circumstances in relation to malicious damage to property or negligently causing serious damage to property (as defined in section 187(i)(b) as read with sections140 and 143(a)(i)(ii) or (b) (of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Alternatively; Conspiracy in aggravating circumstances in relation to malicious damage to property or negligently causing serious damage to property (as defined in section 188(1)(b) as read with section 143(a)(i)(ii) or (b) (of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Count 3: Incitement to assault or resist a peace officer as defined in section 187(10)(b) as read with section 176 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Alternatively: Conspiracy to assault or resist a peace officer as defined in section 188(1)(b) as read with section 143(a)(i)(ii) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23.].”

The brief background to the charges was that the applicants and their co-accused were convicts and inmates at Chikurubi Maximum Security Prison - and they remain so. It was alleged, that, on 13 February 2015, the inmates, with the applicant, Robert Martin Gumbura, as leader, incited other inmates to protest the quality of food which they were being fed on at the prison.

He allegedly incited the prisoners to protest by singing and hitting cell bars - which they did the whole night.

A month later, on 13 March 2015 the applicants and their co-accused revived the food protests leading to inmates being disorderly, and, in the process, damaging property resulting in prison officers firing warning shots in an endeavor to restore order.

Some officers were injured in the process.

It was also alleged that the applicant and co-accused attempted to escape from prison. Some prisoners were shot and some died.

When the applicants and the co-accused appeared before the Magistrates Court for trial, they pleaded not guilty on 3 September 2015 and trial commenced. The trial progressed in fits and starts owing to logistics and challenges of conducting a trial with several accused persons. One accused would fall ill or be indisposed and trial would stall.

The trial progressed until the State closed its case.

The applicants and the co-accused applied for their discharge at the close of the State case.

The application failed.

They were dissatisfied with the dismissal of the application. They filed an application for review of the decision to dismiss their discharge application. That application was argued before me on 22 January 2020. I reserved judgment, and, though judgment has delayed owing to a heavy workload and voluminous records to be received, the same should be available inside this first term.

The applicants have applied for bail pending the determination of the review application.

HH482-16 : THE STATE vs PHILLIP MASHAVA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

Having been indicted to answer to a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the accused pleaded not guilty to the charge.

It is the State's contention, that, on 31 July 2015, and at Derust Farm Compound, Chipinge the accused, accompanied by Simon Puranyemba Simango, who is still at large, unlawfully and with intent to kill, assaulted Happymore Mashume with an axe and a machete on the shoulder, twice, thereby causing injuries from which the said Happymore Mashume died.

According to Dr. NR Chinhema, who examined the body, the deceased sustained cuts on the left shoulder and right wrist. The doctor observed that the cut on the shoulder was deep with exposure of blood vessels. He concluded that cause of death was hypovolaema secondary to severe acute bleeding.

The post mortem report, exhibit 1, by consent, refers.

Further, in evidence, the axe and machete were produced as exhibits. Also a pair of brown shoes, cream shirt blood-stained and yellow blood stained t-shirt.

A sketch plan drawn to scale, by Sergeant Chatiza, showing indications by the accused and witnesses; a confirmed warned and cautioned statement by the accused were also produced as exhibits.

The State also produced as exhibit 5 photographs depicting the dead body of the deceased.

This did not serve any purpose given the cause of death and the recovery of the body from the river is not in dispute as between the State and defence.

Evidence of seven (7) witnesses was formally admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07] as common cause.

Five (5) witnesses, inclusive of the accused, gave oral evidence.

Sekai Mwaneka's evidence was basically to the effect, that, while she was at her home selling illicit brew (kachasu/sope) she observed the accused's wife sitting in a compromised position with the deceased. She described the posture of the two on the bench as that of the accused wife's thighs or legs on top of the deceased while the latter was inserting his hand into the skirt whose zipper was open.

Her version was similar to the accused's version in so far as the manner of sitting was concerned.

She recalled how the accused took a hosepipe and assaulted his wife with it.

This, again, conforms with the accused's version.

The witness told the court that, thereafter, the accused and his wife left for their homestead. She was not privy to what transpired there but she told the court that the accused's wife later returned and requested to put up at her house because of squabbles with her husband.

The witness's evidence was clear and to the point.

Edison Musimandoyo, a neighbor to the accused, told the court, that, on the day in question, in the evening, he heard noise at the accused's homestead. He heard the accused shout and order the deceased to go away from his homestead and he also heard the accused shout at his wife labelling her a prostitute.

He later heard the accused sharpen his axe and shout at the deceased for the latter to leave.

The witness observed Simango Puranyemba strike the deceased on the hand and the two chased one after the other via his compound.

It was getting dark and he could not clearly see, but there was some noise at the neighbor's house when he retired indoors.

The witness, who appeared terrified by the incident, spoke in low tones but there is nothing to criticize about his evidence. He did not seek to comment on what transpired behind the house as he could not see. The following day, he also witnessed the recovery of the body of the deceased from a nearby river.

Hebert Makuyana recounted events of the day in question when he passed via that witness, Edison Musimandoyo's residence while he was in the company of Puranyemba Simango.

Puranyemba Simango proceeded to the accused, his uncle's homestead, where there was some noise.

The witness, just like Edison Musimandoyo heard Puranyemba Simango inquire what was wrong from his uncle, the accused; following which he was advised the deceased had proposed love to his wife in the afternoon.

This angered Puranyemba Simango who chased after the deceased and struck him with a machete on the shoulder. They chased after each other, and, at that time Edison Musimandoyo went indoors and the witness proceeded to his place going past the accused's residence.

He observed the accused strike the deceased with an axe on the shoulder and the latter fell down.

As he passed by, going to his home, he heard the accused and Puranyemba Simango say the deceased should go away from the residence but he did not know if the latter had died.

The witness was put to task on why his observations differed from Edison Musimandoyo but he stood his ground that he initially observed while passing by Edison Musimandoyo's residence and the latter moved close as he passed by the accused's residence. The witness said it was at night but there was moonlight.

We must point out, that, the witness's evidence was on the events he observed while at Edison Musimandoyo's residence; there were no material difference from Edison Musimandoyo's version, that of Puranyemba Simango and the deceased chasing each other. The other detail he stood his ground he observed on his way past the accused's home.

In any event, the accused, in his Defence Outline and evidence in chief, even in his confirmed warned and cautioned statement, does not deny the fracas occuring.

It is the sequence of events which he sought to challenge.

In the confirmed warned and cautioned statement, the accused confirmed the State witness version that he chased the deceased away and the latter resisted then he sharpened his machete and axe and that his nephew, Puranyemba Simango, joined in.

The State also adduced evidence from Peter Kasora, the officer who received the exhibits.

His evidence was confirming recovery of the blood stained t-shirt from the accused's residence; the machete and axe, both of which were blood-stained and recovered from the accused's bedroom. One sandal, which was blood-stained, was recovered from the place where the body was and another from the accused's kitchen.

The witness's evidence is clearly common cause.

The accused adopted his Defence Outline as evidence in chief.

The accused was not candid with the court as he was clearly exposed as trying to hide behind a finger simply because the co-perpetrator, one Puranyemba Simango, was at large.

He admitted using the machete and not the axe, and that when Puranyemba Simango took the axe and chased the deceased he retired indoors.

On realising the axe was recovered from his house, in the bedroom, with blood stains, he knew he had to explain how the axe got to be there. He sought to give an unsatisfactory explanation that he just found the axe in his compound the following morning.

The accused could not explain how the t-shirt he was wearing got blood stained, and he sought to unconvincingly whisk away the blood stains as dirt.

Again, on realising the contradictions in his testimony, he sought to point out that he was threatened by the police, which threat he did not disclose to the magistrate who confirmed his confirmed warned and cautioned statement, which, to a large extent, supports the State case.

The accused's incredible story that when his nephew came to his assistance, of a supposed paramour of his wife, he retired indoors, is not only unsatisfactory but unbelievable.

Moreso, when viewed with the totality of the evidence before the court.

It is apparent from the evidence, that, on the night in question, the accused was accosted by the deceased while he was at his homestead. Earlier in the afternoon, the accused had seen the deceased seated in a compromised position with his wife at a beer drink. The accused had assaulted his wife over this misdemeanor and went home with his wife who he further assaulted for failing to cook because of the drunken state.

Upon arrival of the deceased, the accused ordered the latter to leave but the deceased resisted leading to an altercation.

The accused's nephew, one Simon Puranyemba Simango, joined in.

The accused, who had sharpened his machete and axe, resorted to using these weapons together with his nephew.

It is also very clear that Puranyemba Simango only joined in after revelation of what the problem was by the accused.

The accused is the one who took out the weapons used in striking the deceased.

The two were acting with common purpose vis a vis the intruder - that is the deceased.

There is nothing from the accused's testimony, or the State witnesses, which can lead one to come up with a deduction that the accused and the co-perpetrator were not acting with common purpose.

It is a fact that the deceased died as a result of injuries sustained from the physical confrontation with the accused and Simango Puranyemba.

Given the common cause aspects, what falls for determination, is; given the defence of provocation and self defence raised by the accused, has the State discharged the required onus in proving that the accused either with dolus actulis or dolus eventualis caused the death of the deceased.

From the evidence, the accused did not set out with a desire to bring about the death of the deceased or murder the deceased with actual intention. The accused requested the deceased to leave his place of residence after the deceased had come asking after the accused's wife whom he was drinking with in the afternoon.

The accused told the court the deceased struck him with a small bench on the legs, and, in his Defence Outline, he said he was struck on the legs and forearm. The discrepancy is not really material because what comes out is that the accused said he was assaulted.

In raising the defence of self-defence, as outlined in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], one has to meet the requirements set out therein.

One does not require more than ordinary wisdom to discern that the accused used disproportionate means to avert an assault by a bench.

Further, using lethal weapons, such as a machete and axe, to wade off an assault from a small wooden bench means the accused exceeded the limits of self defence and that defence is not available to the accused in this case.

Having made a finding that murder with actual intention cannot be sustained in the circumstances of this case, one has to look at whether, with the self-defence or provocation raised, the charge of murder with constructive intention can be sustained.

The subjective test being whether the accused foresaw that there was real risk and possibility, that, by assaulting the deceased in the manner he did, harm or death would ensue but nonetheless proceeded with his conduct.

The defence of provocation raised by the accused is provided for in section 239 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in circumstances where one would have lost self-control in circumstances where a reasonable man in their position would lose self control.

The defence is available as a partial defence where a finding of loss of self-control negating intention exists.

This entails that provocation should only be accepted as a partial defence if there was a spontaneous reaction causing loss of self control: see Zimpack (Pvt) Ltd v Mugarabi SC196-94 wherein KORSAH JA quoted with approval the remarks by LEWIS JA…, in George Tsiga v The State AD 77/76, where, in relation to provocation, he said:

“It is of essence of a defence of provocation that has the effect of reducing the crime of assault with intent to commit grievous bodily harm to common assault or murder to culpable homicide…, that the reaction to the provocation must be sudden, in the sense that the person provoked acts at the spur of the moment and in circumstances where he has temporarily lost his power of self-control and does not appreciate what he is doing.”

In the circumstances of this case, the deceased, who had earlier been seen in a compromised position with accused's wife, followed the accused at his house.

Despite being shouted at and being told to go away, the deceased was unrelenting.

The deceased was involved in an altercation with the accused who then armed himself with an axe and machete sharpening the same in the deceased's presence till he was struck the first time but still did not budge till the nephew of the deceased, Puranyemba Simango, arrived and joined in the fracas.

The manner in which the accused ran around the yard shouting and instructing and sharpening the machete and axe is consistent with a man who had lost self-control.

The challenge of being pursued by a man whom he had seen in a compromised position with his wife caused his actions to snap and he appeared like a man who had gone berserk; even the force with which he struck the shoulder, exposing blood vessels, shows a man whose emotions had taken the better of him thereby negating intention as contemplated in section 47(1)(b) of the Criminal Law (Codification and Reform) Act.

The accused, given the loss of self control occasioned by the unnecessary challenge, could not have foreseen the possibility of death occurring such that the charge of murder with constructive intention cannot be sustained.

The test to be applied in determining whether or not, on available facts, a person is guilty of murder with constructive intent or culpable homicide, the court is called upon to take into account the factual evidence which could have affected the accused's perception and powers of judgment.

In casu, the accused was challenged and accosted by a man whom he had seen in a compromised position with his wife at a beer drink and now at his house the man was demanding to have the woman.

Despite being chased away, he kept hovering at the accused's house leading to the fracas that occurred which culminated in him sustaining injuries from which he bled to death.

The accused lacked the requisite intention as given in section 47 of the Criminal Law (Codification and Reform) Act but certainly negligently caused the death of the deceased when he struck the deceased with a lethal weapon and watched his nephew, armed, and strike the deceased with a lethal weapon.

The accused created a dangerous situation but did not take steps to guard against death arising from the dangerous situation that he created, and, as such, he is guilty of culpable homicide.

Accordingly, the accused is found guilty of culpable homicide as defined in section 49(b) of the Criminal Law (Codification and Reform) Act.

SC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

This is an appeal against refusal of bail pending appeal by the High Court (the court a quo). The application is in terms of Rule 67 of the Supreme Court Rules, 2018 as read with section 121(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].FACTUAL BACKGROUNDThe appellant was employed ...

FACTUAL BACKGROUND

The appellant was employed by the Zimbabwe National Army under the Presidential Guard Unit. He was arraigned before the Magistrates Court, together with two other accused persons, facing a charge of public violence as defined in section 36 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].

He pleaded not guilty and thereafter trial ensued.

It was the State's case, that, the appellant participated in the violence and looting which occurred at Puma Service Station near White House in Harare.

In the State Outline it was alleged, that, the appellant, together with the other accused persons, intercepted a Zimbabwe United Passengers Company (ZUPCO) bus which was on its way to the central business district. Thereafter, they ordered all the passengers to disembark from it. After the passengers had disembarked from the bus, they burnt it. They proceeded to loot shops and pharmacies at the service station where they stole a variety of tablets, a 12-volt car battery, and a blue Yamaha motor bike.

Police raided the appellant's house where they found the motor bike and 17 containers of tablets.

In his defence, he claimed, that, the tablets belonged to his relative who suffered from mental illness as well as HIV. With regards the motor bike, he claimed, that, he had purchased it although he did not have an agreement of sale.

The court a quo found, that, if it was true that the tablets belonged to his relative, the appellant ought to have called them to testify.

It also found, that, the appellant had claimed that there was an affidavit which proved that he purchased the motor bike but he had not produced it.

After evidence was led, the appellant was found guilty as charged.

He was convicted and sentenced to sixty (60) months imprisonment with twelve (12) months suspended on appropriate conditions.

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal to the High Court. Pending the appeal, he applied for bail in the High Court.

The court a quo dismissed the bail application.

It held that there was overwhelming evidence which proved that the appellant had committed the offence thus proving that the intended appeal did not have good prospects of success.

Irked by the decision of the court a quo, the appellant has noted the present appeal.

ANALYSIS OF THE FACTS AND THE LAW

This Court's approach to matters of this nature was stated in S v Chikumbirike 1986 (2) ZLR 145 (SC)…, where BECK JA said the following:

“The next matter to be decided is whether this Court, in hearing the appeal, should treat it as an appeal in the wide sense, that is to say, that it is to be treated as if it were a hearing de novo. Once again, that matter has been decided by the case of The State v Mohamed 1977 (2) SA 531 at 542B-C where TROLLIP JA said that, in an appeal of this nature, the court of appeal will only interfere if the court a quo committed an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision.”

The same point was subsequently made by this Court in Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S)..., as follows:

“While the Judge President, in considering the appeal, was at liberty to substitute his discretion for that of the magistrate on the facts placed before the latter, the present appeal is one in the narrow sense. The powers of this Court are, therefore, largely limited. In the absence of an irregularity or misdirection, this Court has to be persuaded that the manner in which the Judge President exercised his discretion was so unreasonable as to vitiate the decision reached.

See State v Barber 1979 (4) SA 218 (D) at 220E-G; State v Chikumbirike 1986 (2) ZLR 145 (S) 146F-G.

The principle is therefore well established.

It follows, that, in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.”

Both in the court a quo, and before this Court, the appellant makes the argument that since his co-accused was granted bail it follows that he too ought to be granted bail.

The court a quo correctly noted, that, the circumstances of the appellant and his co-accused are different. Evidence was led to establish that the appellant was at the scene of the public violence. He was found in possession of stolen goods, that is, the motor bike and the tablets.

In determining whether the appellant was entitled to bail, it was necessary to determine his prospects of success in the main case.

In the case of Essop v S (2016) ZASCA 114, the court, in defining the term 'prospects of success' held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably conclude different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success; that the case is arguable on appeal; or that the case cannot be categorised as hopeless.

There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

In casu, there is overwhelming evidence against the appellant.

As a result, the prospects of success of his appeal against conviction are slim. The appellant makes the argument that he was an innocent purchaser of the motor bike. Even if the court was to accept that he was an innocent purchaser, he failed to account for the seventeen (17) containers of tablets found in his room.

When the appeal against refusal of bail was being heard, the appellant was asked where he got the tablets from. He said that he purchased them from the pharmacy for his uncle. When asked where the prescriptions for purchasing the tablets were, he replied that they were at home. He however failed to proffer any evidence that the tables belonged to his uncle.

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

The applicants were arraigned before the magistrate sitting at Plumtree facing two counts of stock theft as defined in section 114(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted and sentenced to an effective sentence of eighteen years each. The applicants have noted an appeal against both conviction and sentence.

They now seek to be released on bail pending appeal.

Both applicants were legally represented during the trial.

The evidence presented to court revealed, that, the second applicant was arrested at a roadblock at Maphisa after police manning the roadblock observed that there had been a tempering on the brand marks on the beasts in question. The second applicant implicated the first applicant and informed the police that he was merely acting as an agent for the first applicant, who was the real owner of the beasts in question.

The evidence led at trial was fairly straightforward.

During the month of January 2013, the complainant penned off his cattle for grazing at Mazwi lands leaving them to graze unattended. When the complainant rounded up his cattle, he discovered that two beasts were missing. He made a report to the local village head and to the police. The description of the beasts intercepted at the police roadblock fitted the one given by the complainant, and, subsequently, the complainant positively identified his stolen cattle.

After a lengthy trial, the trial magistrate concluded, that, the State had proved its case beyond a reasonable doubt and convicted the applicants.

The first applicant claimed that the beasts in question lawfully belong to him. He claimed that he had inherited the cattle from his mother, who at the time of the offence, had died. He further claimed that his late mother had acquired the beasts as payment for services rendered. He stated that his late mother was a traditional healer and charged her patients by demanding cattle for payment.

The problem with the defence is that no-one witnessed the transactions alleged by the first applicant.

At the very least, the first applicant should have led evidence to show that his defence was reasonably possibly true.

A policeman based at Sun Yet Sen police station was called by the State to testify.

He gave evidence to the effect, that, he had tried to verify the claims made by the applicants by visiting the village where the beasts were stolen. The policemen established that Hilda Nyathi was the mother of the first applicant. He also confirmed that Hilda Nyathi did not have any cattle and that she did not have a stock card. The policemen interviewed the Village Head who confessed to have no knowledge of any cattle belonging to Hilda Nyathi. In any event, it later transpired, during the course of investigations, that, Hilda Nyathi conducted her healing sessions in Bulawayo and had no rural home in that village. Hilda died at her mother's homestead where she was buried. The dip attendant was also interviewed and denied any knowledge of cattle belonging to Hilda Nyathi.

The applicant's defence was further complicated by the fact that neither of the applicants used their ID cards or stock cards to clear the beasts in question. They opted to use the stock card of one Diana Nyathi.

At the time the cattle were transported to Bulawayo, the first applicant decided to send the second applicant to convey the cattle. The reason he gave for not transporting the cattle himself was that he had no ID card.

It is my view, that, the trial court did not err in convicting the accused because of the overwhelming evidence.

The applicants contend, that, there are bright prospects of success on appeal because the court erred in accepting the evidence of the investigating officer since some of the enquiries were made after the trial had already commenced.

In applications for bail pending appeal, there are two important considerations which our courts have laid down. Bail ought to be granted pending appeal where:

(a) There are reasonable prospects of success on appeal.

(b) Where there is no danger of the applicants absconding.

In the case of S v Williams 1980 (1) ZLR 466, FIELDSEND CJ remarked as follows:

“…, the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. In my view, to apply this test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter-connected because the less likely are the prospects of success the more inducement there is on applicant to abscond. In every case where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail.”

See also the case of The State v Tengende 1981 ZLR 445.

I am aware, that, in applications for bail pending appeal all the applicant has to show is that there are reasonable prospects of success. In other words, bail ought to be granted where the applicant makes out a reasonably arguable case.

In the instant case, there can be no doubt that the prospects of success are virtually non-existent.

The second applicant was caught red-handed with the stolen beasts. The beasts were destined for slaughter.

I am of the view, that, the applicants are not good candidates for bail pending appeal.

The applicants have been sentenced to lengthy terms of imprisonment. Granting the applicants bail, given the circumstances of the case, would simply be an inducement for them to abscond.

In the result, the application is hereby dismissed.

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

This is an appeal against conviction and sentence.

The appellants were charged with contravening section 3(1) of the Gold Trade Act [Chapter 21:03] (the Act) “Possession of gold without a licence or permit.”

It was alleged, that, on the 26th day of June 2013, at around 23:00 hours, and at Mukombe Complex, Tsholotsho Business Centre the two were unlawfully found in possession of gold without a licence or permit contrary to the Gold Trade Act.

The facts are that the two appellants were at Mukombe Business Centre when the first appellant was searched and found in possession of a gold nugget which he intended to sell.

The first appellant was arrested and he implicated the second appellant as the owner of the gold.

The second appellant was arrested and admitted ownership of the gold.

The gold was assayed and found with gold concentrate of 0.0291g valued at $1=11.

Both appellants pleaded guilty and were found guilty as charged.

No special circumstances were found and they were sentenced to the mandatory five years imprisonment.

Aggrieved, the appellants appealed against both conviction and sentence. In their notice of appeal, they indicated the following to be grounds of appeal.

“Ad conviction: 2nd appellant

(1)The learned magistrate erred in finding the 2nd appellant guilty of the crime of possession of gold when 2nd appellant was in fact not in possession thereof and when a claim of ownership thereof did not and does not amount to possession.

(2)The learned magistrate erred in holding that there was common purpose in a crime of possession stricto.

Ad sentence 1st and 2nd appellant (sic)

(3) The learned magistrate erred in holding that there were no special circumstances to warrant imposing (sic) a lesser sentence than the statutory 5 years in that:

3.1 The value involved being that of US$1 ought to have been considered as a special circumstance.

3.2 The 1st appellant was clearly a youthful offender and this element of youthfulness being a special circumstance.

3.3 The appellants stated that they were looking for money for food, a clear sign that, albeit, working they were not being paid, and, if they were paid, they were not being paid enough to sustain themselves. The appellants committed the crime out of starvation and necessity to sustain their lives and produced it to buy food with it.

3.4 The cumulative effect of the mitigating factors amounts to a special circumstance sufficient to influence the court not to impose the mandatory minimum penalty.

(4) The learned magistrate erred, further, in failing to ask the appellants why they committed the offence and the circumstances surrounding the commission of the offence as this would have armed the court with enough knowledge to whether special circumstances did exist or not, or, alternatively, understood whether or not there were compelling reasons not to impose a minimum mandatory sentence.

(5) The learned magistrate erred in failing to enquire, after he summoned the appellant's employer to court, specifically to find out if there were any special reasons or not, if the employer was paying the appellants their salaries or not.

Wherefore, the appellants pray that:

(a) The conviction in respect of 2nd appellant be set aside. In the event that it is sustained;

(b) That the court finds that there were special circumstances in this case sufficient to warrant the setting aside of the sentence of 5 years and substituting it with that of a wholly suspended 5 year sentence, or, alternatively, community service or the payment of a fine.”…,.

Let me deal first with the two grounds of appeal against conviction.

The synthesis of the first ground is that since the second appellant was not in physical possession of the gold he cannot be guilty of the crime.

Counsel relied on two cases on his proposition that section 3(1) of the Gold Trade Act penalizes only an individual who is found in possession of the gold and that “common purpose on a statutory crime of possession stricto does not arise.”

The two cases relied on are:

(i) S v Anand 1988 (2) ZLR 414 (S).

(ii) S v Moyo 1988 (2) ZLR 79 (H).

I must hasten to point out, that, both cases do not support the submissions by counsel.

I am of the view, that, they were cited for purposes of either misleading the court or as a result of thorough misunderstanding of the principles stated therein.

In S v Anand 1988 (2) ZLR 414 (S), the issue was whether a mandatory minimum sentence for possession of uncut emeralds, unless special circumstances exist, could be imposed on a wife who had taken blame for offence of a husband.

It was held, that, the fact that the appellant probably possessed the emeralds on behalf of her husband and that his moral blameworthiness was far higher than hers constituted special reasons for not imposing the mandatory minimum sentence.

In fact, on page 417B-C it was stated that:

“What it all means is this. The appellant and her husband had knowledge of the presence of the gold and the emeralds in the doll with a sewn button. They had physical control and possession of the gold and the emeralds: see R v He Kawter [1986] LRC (Crim) 552 at 607; (1985) 157 CLR 523 at 589 per BRENNAN J. With the aid of the envelope, the State proved beyond reasonable doubt the necessary element of possession. The husband's reluctance to have the doll opened in the absence of his wife established that he knew what was hidden in it.”…,.

In S v Moyo 1988 (2) ZLR 79 (H) the accused was convicted of an offence under the Precious Stones Trade Act 1978, the section under which he was convicted being one which carried a mandatory minimum sentence of three years imprisonment unless special reasons were found to exist. There was a four year delay in finalizing the appellant's matter.

On appeal, it was held that “special reasons” under the Precious Stones Trade Act, are factors arising either out of the commission of the offence or peculiar to the offender, which are out of the ordinary either in their degree or their nature.

The excessive delay in bringing the accused to trial was a factor peculiar to him which was out of the ordinary in its degree. Had he been tried within a reasonable time, as is required by the Constitution, it was likely that the total punishment would have been reduced because a court will always have regard to the cumulative effect of punishment.

I have deliberately gone to some length in outlining the facts and legal principles in these two cases in order to demonstrate their apparent irrelevancy in the matter before the court.

These two cases, therefore, do not take the second appellant's argument any further.

Equally untenable is the second appellant's argument that “possession should only attach to the holder not the owner.”

The clear answer to this rather surprising submission is to be gleaned from section 3(1) of the Gold Trade Act which states:

“No person shall, either as principle or agent, deal in or possess gold unless –

(a) He is the holder of a licence or permit; or

(b) He is a holder or tributor; or

(c) He is the holder of an authority, grant or permit issued under the Mines and Minerals Act [Chapter 21:05] authorizing him to work an alluvial gold deposit; or

(d) He is the employee or agent of any of the persons mentioned in paragraphs (a), (b) and (c) and is authorized by his employer or principal to deal in or possess gold in the lawful possession of such employer or principal; and deals in or possess gold in accordance with this Act and the licence, permit, authority or grant, if any, held by him.”…,.

By employing the phrase “either as principal or agent” the legislature intended to exclude the requirement that the possessor must have physical custody of the gold.

The meaning of the word “possess” in the Gold Trade Act would have been substantially different if the legislature had simply said “no person shall possess gold…,.”

In casu, the second appellant admitted not only that the gold belonged to him, but, more significantly, that he had given the first appellant the full mandate to possess and sell it for and on his behalf.

This obviously makes him the first appellant's principal.

The first appellant was the agent.

Both had knowledge of the presence of gold in the first appellant's custody. Both knew that neither of them had a licence or permit to possess gold.

In these circumstances, it would be absurd and illogical to punish the first appellant and let the second appellant go scot-free.

The legislature plugged this loophole by encompasing 'principals' or 'agents' in the essentials of the crime.

Assuming that this is insufficient a reason to dismiss these grounds, I now turn to common law principles.

This will also cover the second appellant's ground of appeal against conviction relating to absence of common purpose.

The concept of possession is discussed in Volume II Common Law Crimes: South African Criminal Law and Procedure by PMA HUNT.

It is said, at 733, that –

“1. Physical Aspect

X does not need to handle the property physically in order to assume custody and control. If, on his orders, it is locked in his cellar or car or in his minnows cellar or car it makes no difference that he has not even seen it, let alone touched it. Moreover, control may be assumed by one of the modes of constructive delivery, and it may also be exercised mediately.

It is often largely a common sense matter of degree to determine whether X's actus amounts to an assumption of custody and control when the thief (Z) retains control, to a greater or lesser extent, or hands over control for a limited period.”…,.

In casu, the following is what transpired when essential elements were put:

“Q. Correct that on 26 June 2013, and at around 23:00 hours, and at Mukombe Complex Tsholotsho Business Centre you had 0.0298 grammes of gold?

A. Accused 1 – Yes.

Accused 2 – Yes.

Q. Did you know that you had such gold in your possession?

A. Accused 1 – Yes.

Accused 2 - Yes. I knew that Accused 1 had gold because it was mine.”…,.

Later, during the inquiry into whether or not special circumstances exist, the following exchange occurred:

“Q. Accused 2, any special circumstances in your case?

A. I am the one who gave Accused 1 the gold to sell. I was once employed and my employer left without giving me my salary. I then went on to sell the gold so that I could raise money for food.”…,.

Quite clearly, this exchange shows, that, the gold was, on Accused 2's orders, placed on Accused 1's person.

It makes no difference that it was not in Accused 2's pockets.

The two were together at the time of arrest. They admitted possession of the gold and that the purpose was to sell it.

Physical handling of the gold is not necessary before criminal liability is ascribed. At law, Accused 2 had custody and control of the gold.

Consequently, this ground of appeal is dismissed.

HB61-15 : MICHAEL NDIWENI vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.The appellant had ...

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

The accused, who is a female juvenile aged 17 years, appeared in this court on a charge of murder.

The State alleged, that, on 4 January 2014, and at B17 Turkmine Compound, Inyathi, in the Province of Matabeleland North, the accused wrongfully, unlawfully, and intentionally killed and murdered Polite Muduneko, a female juvenile aged 6 years.

The accused pleaded not guilty to the charge of murder and tendered a plea of guilty in respect to the lessor offence of culpable homicide. The State accepted the limited plea.

We are indeed satisfied, that, the concession by the State was properly made.

The State and the defence tendered a Statement of Agreed Facts (Exhibit 1).

In brief, the agreed facts are, that, the deceased was aged 6 years at the time she met her death. The accused was aged 16 years at the time of the alleged offence.

In December 2013, the accused met and fell in love with one Enias Nduna at Turk Mine, Inyathi. The accused and Enias Nduna stayed together at House Number B17, Turk Mine Compound as lovers.

The accused, who had brought along with her the deceased, decided to remain at Turk Mine compound with the young juvenile.

Enias Nduna was not happy with the continued stay of the deceased at the compound and instructed the accused to return the deceased to her parents at Gokwe.

The accused and the deceased were related in that the deceased's father was a maternal uncle to the accused.

The accused failed to return the juvenile to her parents and tension began to grow between the accused and Enias Nduna.

On or around 1 January 2014, the accused assaulted the deceased all over the body using a cooking stick. The accused had been angered by the fact, that, the deceased had soiled the blankets. The accused then assaulted the deceased on subsequent dates.

The deceased complained of body pains arising from the assaults; the deceased was not taken to hospital.

The deceased died on 5 January 2014.

On realizing that the juvenile was lifeless, the accused strapped the deceased on her back and proceeded to Zimbabwe Republic Police, Inyathi where she made a report to the police.

Initially, the accused lied, that, the child had collapsed and died as they were walking to the police station. An investigation led to the arrest of the accused and Enias Nduna as there was evidence that the juvenile had been subjected to physical abuse.

The State produced (Exhibit 2), the post mortem report.

Dr S. Pesanai is a qualified medical practitioner attached to United Bulawayo Hospitals. On 6 January 2014, the pathologist examined the remains of the deceased and compiled his findings in a post-mortem report number 21/21/201.

As a result of the examination, the doctor concluded, that, the cause of death was:

(1) Bronchoaspiration.

(2) Fractured femur.

(3) Homicide.

On further external examination, the postmortem report reveals, that, there were marks of violence consisting of multiple abrasions on the back and the buttocks, abrasions on the shoulder and forearm, abrasions on the chest, abrasions on the left parietal and thighs, and abdomen.

The deceased also suffered a fractured femur.

On internal examination, the post mortem report indicates, that, the deceased sustained a scalp haematomas on the right and left side. There was extradural haematoma on the right side parietal region. There was evidence of hyperinflated bilateral broncho-aspiration in the lungs.

The stomach was full of porridge like contents.

A broken wooden cooking stick was tendered into the record as Exhibit 3. The cooking stick is 21cm long. Its width, at the widest part, is 10cm, and, at the narrower point, its width is 5,5cm. Its weight was not provided.

On the evidence presented before us, we acquitted the accused on the main charge of murder and convicted her on the lessor charge of culpable homicide.

The accused admits that she acted negligently in causing the death of the deceased.

The accused's boyfriend, Enias Nduna was absolved from any liability and discharged because the State failed to secure any credible evidence on his role in the assault.

The court is not entirely convinced that Enias Nduna was an innocent bystander in this matter, but, in the absence of any other evidence, the court has no option but to rely on the available and admitted evidence.

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI
Ruled By: KAMOCHA J

The three accused persons were sentenced on 21 March 2014. The following are the reasons for the sentences imposed by the court.These three accused were arraigned before a Provincial Magistrate in Gweru and all pleaded not guilty to 18 counts of contravening section 60A(3) of the Electricity Act [Chapter 13:19] ...

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

The Criminal Law (Codification and Reform) Act also penalizes owners or occupiers of property who knowingly permit another person or persons to commit the offences on their property or detain a young person with the intention that such offences be committed against the young person. The Criminal Law (Codification and ...

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.

The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.

The appellant was convicted of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 4 years imprisonment of which 1 year imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGS133=21 through the Clerk of Court at Chivi on or before 31 August 2019.

The appellant has to serve an effect sentence of 2 years imprisonment.

At the time of the hearing of the appeal, counsel for the appellant submitted, that, the appellant, who has been in prison for about 4 months, has already paid the restitution in the sum of US$471 and RTGS133=21.

The facts of this matter, which give rise to this appeal, are largely common cause save for the appellant's role in the commission of the offence.

The appellant was jointly charged with three other accomplices Cordination Magavhe, aged 28 years, residing at Chivi Growth Point; Babra Masvosvere, aged 20 years, residing in Beitbridge; and Shelter Ezra, aged 28 years, residing at Chivi Growth Point.

The other three accomplices, Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant.

The appellant is the only one who denied the charge hence the matter proceeded to trial.

The offence of fraud in this matter was committed with surgical precision.

The three accomplices, Cordination Magavhe (Cordination), Barbra Masvosvere (Babra), and Shelter Ezra (Shelter) together with the appellant are said to have hatched a plan to defraud Mukuru.Com Money Transfer Company branch situate inside N. Richards Wholesale at Chivi Growth Point.

As already said, the only disputed fact is the appellant's role or involvement in this criminal enterprise as the appellant denied any role or knowledge of the commission of the offence.

Cordination Magavhe, as his name denotes, was the co-ordinator of this whole criminal enterprise as he was an ex-employee of Mukuru.Com Money Transfer Company at Chivi Growth Point. He provided a clipboard, counterfeit audit papers titled Mukuru.Com, 2 T-shirts inscribed 'Mukuru Send Money Home' and some cash box keys which he had stolen while employed at Mukuru.Com Transfer Company branch situate at Chivi Growth Point. It is Cordination Magavhe who briefed the other accomplices of the tactics to be employed in committing the fraud.

Barbra Masvosvere was assigned the prominent role of executing the fraud and stealing of the money at Mukuru.Com Transfer Company branch at Chivi Growth Point. This is probably because she was the only one who was not a resident at Chivi Growth Point as she resides in Beitbridge and was therefore not known at Chivi Growth Point.

The appellant's role, which he disputes, is that he provided a laptop from which the counterfeit Mukuru.Com fraudulent documents were generated and acted as a sentinel during the execution of the offence by Barbra Masvosvere.

Shelter Ezra, again, as her name denotes, provided shelter for the culprits as the plan to commit this fraud was polished up at her residence at Chivi Growth Point; she offered accommodation to Babra and provided a handbag Babra used.

The fraudulent plan was executed in the following manner:

On 11 January 2019, Babra proceeded to the Mukuru.Com Company branch at Chivi Growth Point inside N. Richards Wholesale where she posed as an auditor from Mukuru.Com Company who had come to carry out official duties at the branch. She was wearing the t-shirt inscribed “Mukuru Send Money Home”; was carrying a handbag and a clipboard attached with the fake or counterfeit Mukuru.Com Company documents.

Babra carried herself as an auditor from Mukuru.Com Company Head Office in Harare who had come to perform her duties at the Mukuru.Com Company branch at Chivi. She approached the complainant, Raviro Chirape, a cashier employed at the Mukuru.Com Company branch at Chivi Growth Point. Babra then proceeded to carry out 'an audit' inside the booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape believed Babra was an auditor. Babra proceeded to check the financial books and cash on hand in order to carry out the reconciliation.

At the material time, there was US$5,475 and $533 bond notes which Barbra counted with Raviro Chirape.

After about an hour, Barbra asked the cashier, Raviro Chirape, to go and buy for her some water to drink. When the cashier went to buy the water, Babra simply took the money at the Mukuru.Com Company branch. After the cashier returned, Babra later left with the cash and caused the cashier to complete fake audit forms which showed that Babra had carried out audit duties unaware that Babra had stolen the money in her absence.

The culprits then regrouped at Shelter's house and proceeded to Zvishavane to share the loot.

The matter came to light the same day when Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi Growth Point, later realised that all the money in her possession had been stolen.

The CID details from Mashava later on investigated the matter, and, on the same day, arrested Cordination and the appellant with the help of CCTV at N. Richards Wholesale at Chivi Growth Point.

Upon their arrest, CID details recovered United States dollars from Cordination and the appellant.

Further, an HP laptop bearing serial numbers of counterfeit documents used by Babra when she misrepresented herself to Raviro Chirape the cashier at Mukuru.Com Company Branch at Chivi Growth Point as an auditor, were recovered.

Thereafter, Cordination led to the arrest of Babra, who had returned to Beitbridge, and also accused Shelter.

The amount of US$760, $67 bond notes was recovered from Babra and US$1,800 from Shelter. Both the appellant and Cordination were found with some cash.

Further, the t-shirt inscribed 'Mukuru Send Money Home'; the clipboard; a purse; the attire Babra was wearing posing as an auditor were recovered at Shelter's residence thrown inside a blair toilet.

The total cash stolen is US$5,475 cash and $533 bond cash. The amount recovered is US$3,589 cash and $75 bond cash.

The appellant gave a very lengthy Defence Outline covering 23 paragraphs.

In brief, the appellant denied conniving to commit the fraud with Cordination, Babra and Shelter. The appellant said the only person he knew was Cordination and he was not known to Babra and Shelter. The appellant denied taking any part in the commission of the offence. He denied playing any role in the commission of the offence or getting any share of the loot.

The appellant, however, admitted to the following facts, which are;

(a) That, he is a very close friend of Cordination Magavhe, an ex-employee of Mukuru.Com Company branch at Chivi.

(b) That, he is well known to the cashier, Raviro Chirape, at Mukuru.Com Company branch at Chivi Growth Point as he frequents N. Richards Wholesale or transacting at the said Mukuru.Com Company branch.

(c) That, on the day in question, on 11 January 2019, he indeed was at N. Richards Wholesale Chivi Growth Point where the Mukuru.Com Company Branch is situated hence his images were captured on CCTV. However, the appellant said his mission at those premises was not to carry out any surveillance in furtherance of any criminal conduct but to meet a female friend, Eustina Mbaradze, and for shopping purposes inside N. Richards Wholesale.

(d) That, on the way into N. Richards Wholesale he passed by the Mukuru.Com booth which is by the entrance and greeted the cashier who is the complainant, Raviro Chirape.

(e) That, the fraudulent documents used by Babra to commit the fraud were generated from his HP laptop. The appellant, however, said this was done by his friend Cordination Magavhe who had unfettered access to his laptop which had no password and that this was done without the appellant's knowledge or approval.

(f) That, he was found in possession of money stolen from Mukuru.Com Company branch at Chivi Growth Point, being United States Dollars. The appellant, however, said he had been given this money by his friend, Cordination Magavhe, who owed the appellant some money and that it was not the appellant's share of the loot.

After hearing evidence from the complainant, Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi, Barbra Masvosvere, a convicted accomplice who had been properly warned, and the investigating officer, Nxumalo Mxolisi, all for the State; and from the appellant and his defence witness, Cordination Magavhe, also a convicted accomplice, the court a quo found in favour of the State and dismissed the appellant's version of events or evidence as false.

Irked by this decision, the appellant approached this court, on appeal, and the grounds of appeal, in respect of both conviction and sentence, are as follows:

“GROUNDS OF APPEAL

1. RE: CONVICTION

1.1 The learned Magistrate erred in law when he convicted the appellant of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the absence of proof beyond reasonable doubt, particularly in that;

(a) He wrongfully made inferences from circumstantial evidence, which inferences were not the only reasonable inferences which could be made in the circumstances.

(b) He wrongfully relied on evidence of an accomplice in circumstances where the risk of false incrimination was very high and had not been eliminated.

(c) He wrongfully rejected the appellant's explanation in his defence which was probable in the circumstances.

1.2 WHEREFORE, appellant prays for the success of the appeal and for the setting aside of the decision of the court a quo convicting the appellant of the offence and substitution of the same with a verdict of Not Guilty.”

In relation to sentence, the appellant is of the view, that, community service should have been imposed in light of the mitigating factors which include, inter alia, the delay of 5 months in finalising the matter; that the appellant is a first offender; that half of the stolen money was recovered; that the amount stolen was not substantial; that the sentence imposed was within the threshold of 24 months effective sentence and that the appellant is a suitable candidate for community service.

I should commend counsel for the appellant, Mr Chivasa, for his detailed and well researched heads of argument. Equally so, I need to commend the learned trial magistrate for a very lucid judgment and a clear appreciation of not only the facts in issue but the law involved.

The simple task for this court is to assess, as regards conviction, if the court a quo properly applied the principles of circumstantial evidence and/or the liability of co-perpetrators.

The liability of co-perpetrators is provided for in section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This provision simply reinforces the common law principle or doctrine of common purpose which entails, that, for the doctrine of common purpose to apply in any case, it has to be proved that the accused did something to associate himself with the actions of the person who actually committed the offence knowing that the other person intended to commit the said offence or foreseeing that possibility; see State v Mubaiwa & Anor 1992 (2) ZLR 362 (S); State v Chauke & Anor 2000 (2) ZLR 494 (S)…,.

This position is well articulated by the esteemed author BURCHELL in South African Criminal Law and Procedure Volume 1, 3rd Edition…, wherein the learned author said;

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within the common design.”

In casu, if it is proved that the appellant indeed connived with Cordination Magavhe or Barbra Masvosvere or Shelter Ezra, or all of them, in perpetrating this fraud, the appellant's criminal liability, irrespective of his actual role, may be inferred on the basis of the doctrine of common purpose.

In specific terms, it is said the appellant agreed to commit this offence; that he provided the laptop used to generate the fraudulent documents; that he acted as a sentinel during the commission of the offence; and that he got the spoils of the loot.

This is however denied by the appellant, but the court a quo disbelieved him.

Babra's evidence is that Cordination, who was the brains behind this fraud, briefed her that the appellant would be engaging in surveillance during the execution of the actual fraud by Babra, as a sentinel, to ensure Babra's safety.

Indeed, Babra was given, by Cordination, and actually used, the fraudulent documents generated from the appellant's laptop.

In her evidence, Babra said that although she personally had not met the appellant, some person Cordination told her was the appellant would call her while she was executing the fraud giving her real time information of what was happening around the crime scene at Mukuru.Com Company premises at Chivi Growth Point.

Babra said after successfully executing the fraud, she met Cordination and Shelter after which they proceeded to Zvishavane to share the loot.

She said the other person she was told was the appellant was constantly calling them updating them on what was happening at Mukuru.Com Company branch at Chivi Growth Point in the aftermath of the commission of this offence. She said this person was identified by Cordination as the appellant and that the appellant had therefore not joined them specifically for that reason.

Lastly, Babra said as they shared the money, Cordination reserved another share for the appellant and returned to Chivi to ostensibly give the appellant his share.

Indeed, when police detectives first sighted Cordination, later that day, he was in the company of the appellant at Chivi Growth Point and the appellant was later found with part of the money stolen from Mukuru.Com Company that very day.

The assessment of the credibility of witnesses is within the domain or province of the court a quo.

Babra's evidence was that although she had not physically met the appellant at any stage, she was briefed that the appellant's role was to provide surveillance or act as a sentinel and that some other person indeed appraised her on the telephone on what was happening.

Indeed, it would have been desirable for the police to have checked the telephone records for all persons involved to verify Babra's evidence.

Nonetheless, such an omission, in my view, is not fatal to Babra's evidence. Babra was not known to the appellant. She is a convicted accomplice. She had nothing to gain by falsely incriminating the appellant.

The question which arises, therefore, is why would she go out of her way to fabricate the existence and role of a fourth player in the execution of this offence.

The court a quo found none and there is no such reason, in my view.

On that basis, she was found to be a credible witness and the danger of false incrimination was found to be none existent.

On the other hand, the same cannot be said for Cordination.

Despite later pleading guilty to this offence, Cordination, upon his arrest, in the early hours of 12 January 2019, denied any role in the commission of the offence - even after some US$307 had been found under his bed.

This can be gleaned from a copy of the police running diary log produced through the investigating officer.

Cordination denied ever being involved in this matter and said the money found in his possession was money given to him by his parents (see the version of page 52 recorded in Shona).

Apparently, he only admitted to the offence when police's evidence became overwhelming as investigations progressed.

When Cordination testified, he sought to exonerate the appellant alleging that the appellant played no role. He denied ever telling Babra that the appellant was involved and that the money he gave the appellant, stolen from Mukuru.Com, was to pay a debt owed to the appellant. He further said that he used the appellant's laptop to generate fraudulent documents without the appellant's knowledge.

In my respectful view, Cordination's evidence was properly rejected.

He is the appellant's friend and the two were very close. He admitted, under cross-examination, that he would naturally protect the appellant (see page 46 of the record). Most importantly, he initially lied to the police.

The court a quo was correct to reject his evidence and assess him as an incredible witness.

It is for the said reasons that the appellant's criminal liability was based on the doctrine of common purpose or a co-perpetrator.

The court a quo thus found, that, the appellant was at the scene of crime at N. Richards Wholesale; that he had knowledge of the offence or criminal act; that he worked in cahoots with the other accomplices, including Babra, by manifesting a sharing of common purpose in providing his laptop, acting as a sentinel, providing surveillance, and getting a share of the criminal proceeds.

The appellant, on that basis, has the necessary mens rea to commit the fraud; see S v Mgedezi & Ors 1989 (1) SA 687 (A).

The next issue to consider is the question of circumstantial evidence.

The celebrated case of R v Blom 1939 AD 188…, outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;

(i) That, the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn.

(ii) That, the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then, there must be doubt whether the inference sought to be drawn is the correct one; see also S v Tambo 2007 (2) ZLR 33 H; S v Marange & Others 1991 (1) ZLR 244 (S).

It is competent for a court to return a verdict of guilty solely on circumstantial evidence; see S v Shonhiwa 1987 (1) ZLR 215 (S); S v Vhera 2003 (1) ZLR 668 (H)…,.

The court a quo applied these principles to the circumstances of this case. The proved facts were juxtaposed with the appellant's explanation and the trial court concluded, that, the appellant's explanation cannot possibly be true.

The relevant facts which were considered are not in issue and are as follows:

(a) Cordination, who was the brains behind this fraud, is the appellant's close friend. This is admitted by the appellant. In fact, the appellant and Cordination were later seen together that very same day by the police.

(b) The appellant was present at the crime scene at the material time. This is confirmed not only by the CCTV but by the appellant himself. The appellant's explanation is that N. Richards Wholesale is a public place and that he wanted to see a friend there and to do some shopping. Indeed, that may be so. The appellant actually passed by the complainant's booth and greeted her.

(c) The appellant was found in possession of some of the stolen cash, in United States dollars, identified by the serial numbers, the very day the money had been stolen. Upon his arrest, the appellant, as per the investigating officer, said he had been given the money by his relatives. However, later, after the money had been matched with the serial numbers, he changed the story and said he was given the money by Cordination as payment for money he was owed by Cordination.

It is therefore clear the appellant was not consistent in explaining how he became in possession of the stolen money and had therefore told a lie on a material issue.

(d) The fraudulent documents used to commit the fraud were generated from the appellant's laptop. The appellant's explanation is that Cordination is the one who generated the fraudulent documents using the appellant's laptop as he had unlimited access to it and it had no password.

No further explanation is given as to why Cordination chose to use the appellant's laptop.

Indeed, each of those facts proven or not in issue, taken in isolation may, on their own, not lead to any adverse inference. However, when they are considered conjunctively, together with the accused's own explanation, a proper adverse inference. in my view, was made.

The close friendship the appellant had with Cordination is admitted.

Is it plausible that the appellant would be paid his debt with the stolen money the very day it was stolen?

Why would the appellant lie to the police about the source of this money initially?

One would raise eyebrows as to why Cordination would choose to use a dear friend's laptop to generate fraudulent documents and why the appellant did not know about it. The appellant's presence at the crime scene dovetails with Babra's evidence as regards the appellant's role.

In my view, the court a quo assessed the credibility of all the witnesses and made findings of fact.

The appellant's evidence, or version of events, was rightly rejected.

The principles of law applicable to the facts of co-perpetrators or acting in common purpose, together with circumstantial evidence, are not only well articulated but properly applied to the facts of this case. I find no misdirection at all on the part of the court a quo. The threshold or degree of proof required in criminal matters was achieved.

The appellant's conviction is unassailable in the circumstances. Consequently, the appeal against conviction cannot succeed.

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J

On 12 January 2019, three accused Thabane Ngwazani, Evans Munotumaani and George Ndimani being Accused 1, 2 and 3 respectively appeared before the Provincial Magistrate sitting at Mutare facing stock theft charges as defined in section 114(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], where the State alleged, that, on 31 December 2018, and at Village 12 Nyamajura, Odzi, Thabane Ngwazani, Evans Munotumaani and George Ndimani, one or all of them unlawfully took a brown heifer which was stray, the owner of which is yet to be established, knowing that the stock was stray or realizing that there was a real risk or possibility that the stock might stray (sic) and intending to deprive permanently the unknown owner.

The State Outline was structured as follows:

The complainant in this case is the State represented by Maxwell Nyamavanga, a male adult aged 36 years residing at Village 12 Nyamajura, Odzi and he is not employed.

Accused 1 is a male adult residing at Nyamatsine Business Centre, Odzi and he is not employed. Accused 2 is a male adult residing at Plot 45 Alma Farm, Odzi and he is employed as general worker at Plot 45 Alma Farm, Odzi. Accused 3 is a male adult residing at Village 12 Nyamajura, Odzi and he is not employed.

On a date to the prosecutor unknown, but during the month of August 2018, at Plot 45, Alma Farm, a brown stray heifer joined herd of cattle being herded by Accused 2. Accused 2 advised his employer, Lovemore Manyati, and other local neighbours, namely, Fidelis Mutupe and Shephard Khaza. Accused 2 and his employer decided not to register the brown stray heifer as a found stock with the police.

Accused 1 approached Accused 3 looking for a buyer of a brown heifer. Accused 3 found a buyer.

On 31 December 2018, Accused 2 took the heifer to Accused 3's kraal in Village 12 Nyamatsine, Odzi. Accused 1 sold the brown heifer to the buyer brought by Accused 3.

On 2 January 2019, Maxwell Nyamavanga reported the case at ZRP Odzi, and, Accused 1, knowing that a case was reported, went to the person who had bought the heifer, repossessed the heifer, and returned it to Accused 2's homestead on 8 January 2019. The value of the stolen heifer was $600 and was recovered.

Accused 1 and 3 pleaded not guilty and Accused 2 pleaded guilty. There was a separation of trial and the trial court put the following questions to the accused after facts had been read to him:

“Q. Understand and agree with the facts?

A. Yes.

Q. So, is it correct that on 31 December 2018, at Village 12 Nyamajura, Odzi, you took a stray cattle as alleged?

A. Yes.

Q. You had the owner's consent to take it?

A. No.

Q. You intended to deprive the owner permanently of the cattle?

A. Yes.

Q. You knew that your conduct was unlawful?

A. Yes.

Q. Any defence?

A. No.

Verdict: Guilty as charged.”

The learned Provincial Magistrate, in his reasons for sentence, indicated that there were special circumstances in that a stray bovine which the accused was keeping, and the accused decided to sell it after the death of his father so he had urgent need for money to attend to his father's funeral. He concluded that the circumstances are special because there was a huge temptation on the accused to dispose the bovine which he was keeping but whose owner he did not know.

The accused was sentenced to 4 years imprisonment of which 1 year imprisonment was suspended for 5 years on condition within that period accused does not commit any offence involving dishonesty and for which the accused will be sentenced to imprisonment without the option of a fine.

The facts of this matter raise a number of issues which render the conviction open to attack.

I am not satisfied with the propriety of the conviction of the accused.

The charge sheet shows that the owner of the heifer is yet to be established and the charge ends alleging that the accused intended to deprive permanently the unknown owner.

The State Outline states that the complainant is the State represented by Maxwell Nyamavanga.

Maxwell Nyamavanga is the one who filed a report of stock theft at Odzi Police Station. The pertinent question is: can that make him the complainant?

If he was the complainant, why did the State allege, on the charge sheet, that the possessor or the owner was unknown, and why did the State not allege that the heifer belonged to the State?

At the time the heifer was allegedly stolen, who was the owner or possessor of that heifer?

The State Outline shows that the accused, Evans Munotumaani was employed by Lovemore Manyati. Thabane Ngwazani is the one who sold the heifer and met Evans. Evans Munotumaani delivered the heifer to George Ndimani. When the matter was reported to the police, Thabane Ngwazani repossessed the heifer from the buyer, drove it and dumped it at Evans Munotumaani's place of employment on 8 January 2019.

It is obvious that Thabane Ngwazani did that to avoid arrest by the police since he was the one who sold the bovine beast.

It is not clear as to when Evans Munotumaani sold the beast to fund his father's funeral; the issue of funding the funeral surfaces when the learned trial Magistrate was dealing with special circumstances.

It is not clear on the facts nor on the encompassing of the essential elements for stock theft as to when Evans Munotumaani committed the crime.

It is trite law, on special circumstances, that they should not be peculiar to the offender but extraordinary to the crime.

It is not out of reach to conclude, that, the trial court sweated to find special circumstances because it was aware that the conviction was not proper so had to pass a lenient sentence.

It is also possible that Evans Munotumaani was sacrificed by the employer and implicated to protect Mr Manyati. How could an employee sell a beast without the owner of the herd's knowledge?

These issues could have been exposed if the essential elements were well traversed.

In the matter of S v Machokoto 1996 (2) ZLR 190 (H) GILLESPIE J and CHINHENGO J were confronted with virtually an identical situation as in this case and at p201G-H his Lordship GILLESPIE J had this to say:

“In, Hunt South African Criminal Law and Procedure Vol II, Common Law Crimes 2nd ed by MILTON at p602, theft is defined as the unlawful contracratio with intent to steal a thing capable of being stolen. This definition is accepted as accurately embodying the cardinal elements of the offence. It involves four essential elements – the taking; the unlawfulness; the intent; and the fact that the property was capable of being stolen.

Obviously, these four elements can be, and most frequently are, explained to the accused by three questions:

Q. Did you take this property?

Q. Did it belong to the complainant?

Q. By doing so, did you intent to deprive him permanently of his ownership?

A fourth question:

Q. Did you have any right to do so? is usually and often unnecessarily added.

These questions, it must be said, by no means necessarily constitute a proper explanation of the essential elements in all possible circumstances in which a theft might be committed and charged.

Had the magistrate used this formula, however, he would surely have stumbled upon the defect in the charge which is mentioned by CHINHENGO J, namely, the unstoppable averment that the alleged stolen animals were the property of the State.

However, leaving aside that point, which needs no further remark by myself, these questions even had they been put, are by no means such that they would have constituted adequate explanations of the essential elements of this particular charge.

The facts of this case provide an exemplary lesson in the need to adopt one's questioning by way of explanation of the charge, to the individual circumstances of the case.”

On 31 December 2018, Evans Munotumaani did not sell the heifer to the buyer. It is not clear as to when Evans sold the beast to Thabane Ngwazani, and it is not explained to the accused, Evans, why Thabane Ngwazani returned the heifer to Evans Munotumaani.

All this explanation ought to have been sought during the covering of the essential elements to the charge; had the court a quo exhaustively explained all these aspects to Evans Munotumaani, the court would have detected the problem.

Evans Munotumaani heralded to the neighbours about the heifer, his employer kept it openly, and, moreso, where the State alleged that the owner was not yet established, possession by the accused was bona fide.

It cannot be ruled out that the heifer could have been abandoned: see S v Machokoto 1996 (2) ZLR 190 (H)…,.

In any case, if the facts clearly pointed to the guilt of Evans Munotumaani, the question is why did the State decide to join the other two (2) accused? What was it that they did to be implicated?

And since the accused, Evans Munotumaani, was not legally represented, this aspect was supposed to be clarified by the trial court.

On p204B in S v Machokoto 1996 (2) ZLR 190 (H) the court concluded:

“It follows that if the accused genuinely, even if wrongly, believes an animal to be abandoned or without owner, then, he may assert a claim of right as a defence to the charge of theft. More than that, if such was his state of mind, than he is properly to be regarded as a bona fide possessor of the animal and thus entitled to its fruits. This provides a defence to the charge relating to the second of progeny of the first; the defence here is not based so much on a claim of right but on the circumstances that the animal cannot be stolen, since it is properly that of the accused.”…,.

The accused was but an employee at Plot 45 Almar Farm and this was public knowledge - even to the co-accused. The court wonders why the employer was not charged as well if the conduct of this employee was blemish.

It is apparent to the court that there are a number of grey areas which clouds the conviction of the accused in this case and the charge as well as the facts are fatally defective.

Setting aside the conviction on the charge ought to be regarded as an acquittal on the merits.

The conviction should be set aside on this basis and substituted by the following:

Accused is found not guilty and acquitted.

A warrant of liberation is hereby issued.

HMT07-20 : FIBIAN MUNYUKI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 7 June 2019, the appellant was arraigned at Mutare Magistrates Court facing a charge of “unlawful dealing in or possession of precious stones” in contravention of section 3(1) of the Precious Stones Act [Chapter 21:06].The State alleged, that, on 25 December 2018, and at Sakubva Bus Terminus, Birchnough–Mutare Road, ...

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The two appellants were charged with allegations of obstructing or endangering the free movement of persons or traffic in contravention of section 38(C) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by placing and burning tyres and grass along the Harare-Mutare Road in Rusape.

They were convicted after a full trial and sentenced to 3 years imprisonment each of which 1 year imprisonment was suspended for 5 years on the usual conditions of good behaviour.

The appellants noted an appeal against both conviction and sentence on the following grounds:

“AS AGAINST CONVICTION

1. The Learned Magistrate erred in convicting appellants despite the fact that the State failed to prove its case beyond reasonable doubt due to the following:

(a)(i) The appellants clearly stated in their Defence Outline, that, they were not part of the crowd and were going to Ridgemont Park Suburb for some family assignment and that fact was not refuted by the State.

(ii) That, the reason they ran away was because they feared for their lives in view of the events of August 2018. Again, this assertion was not refuted.

(iii) That, they never participated in the blocking of the road as alleged or at all.

(b) The Learned Magistrate misdirected himself in failing to analyse the credibility of the three State witnesses in view of the following:

(i) That, the self-recorded statements, together with statements, were similar word for word save for personal information therefore connivance was apparent.

(ii) That, they all departed from their statements materially.

(iii) That, they never gave any details implicating appellant in their statements and that the attempt to do so, while giving evidence, clearly indicated that something happened between the receiving of statements and the time of testifying in court.

(iv) That, despite the clear challenge that they never arrested appellants and that they were not present when the appellants were arrested by soldiers, they all failed to identify, let alone, record statements of the alleged six soldiers, or at least mention their brigade. It is therefore clear that the witnesses were not present at the time appellants were arrested and assaulted, therefore could not have possibly witnessed the alleged participation by appellants.

(v) The Learned Magistrate misdirected himself on points of law and fact by failing to recognise the contradictions by the three State witnesses on the reasons why they did not self record the alleged participation of appellants which Sergeant Ngangu saying they were busy and Constable Chingonze saying they felt it was not necessary. Further, the Learned Magistrate failed to consider the improbable testimony of Sergeant Ngangu that it took them up to ten minutes to drive for a distance of 50 metres.

AS AGAINST SENTENCE

The sentence imposed by the Learned Magistrate is so severe as to induce a sense of shock in view of the following:

(i) That, appellants are young first offenders.

(ii) That, no one was injured as a result of the alleged action.

(iii) That, there are other available sentence of a fine or community service which the Learned Magistrate misdirected himself by failing to consider.”

The State alleged, in the State Outline, that, on 15 January 2019, at around 1030 hours, the appellants and outstanding four accomplices connived and proceeded to the 174km peg along the Harare-Mutare road where they placed some burning tyres on the road.

They were seen committing the offence by the Rusape reaction team which comprises of the members of the Zimbabwe Republic Police and the Zimbabwe National Army.

On noticing the reaction team approaching, the appellants ran away into different directions.

The reaction team chased after the appellants and managed to arrest them.

A partly burnt tyre was recovered by the police at the scene.

Although the grounds of appeal against conviction are clustered and heavily laden, the outstanding issues for appeal are:

(i) Whether the State failed to prove its case against the appellants.

(ii) Whether the court a quo failed to analyse the credibility of State witnesses.

Finally, on the issue of sentence, whether the sentence imposed by the court a quo was so severe as to induce a sense of shock.

As against conviction, the appellants submitted, that, there is no onus on them to prove their innocence.

They pointed out in their defence, that, they were not part of the crowd and they were on their way to Ridgemont Park for some family assignment. They ran away because they feared for their lives in view of the events of August 2018. The failure by the Trial Magistrate to accept this, to the appellants, was a misdirection. The State failed to prove its case beyond reasonable doubt.

The appellants went on to add to their submissions, that, the court a quo failed to analyse the credibility of the State witnesses.

According to the appellants, the witnesses for the State departed from their statements materially.

The appellants attacked the uniform format of the police's witnesses recorded statements and alleged connivance. The appellants further submitted, that, the witnesses testimony lacked credibility since the police were not present at the time the appellants were apprehended by members of the armed forces, the soldiers. The witnesses failed to accurately identify the appellants from a distance; maybe, the actual perpetrators fled from the scene unnoticed, argues the appellants.

On the other hand, the State submitted the following on the aspect of conviction:

The court a quo did not err nor misdirect itself in assessing the evidence adduced before it for it to come up with the verdict of guilty against the appellants.

The State went on to submit, further, that, the trial court correctly analysed the evidence and found the witnesses to be credible hence the verdict of the trial court was reasonable and justified by the evidence. The trial court accepted and relied on the evidence of the three police details who testified.

The appellants notable substantive point, observable from the appeal, is centralised on the evidence of the police details.

According to the record of proceedings, police received information about the conduct of the appellants and their partners. They reacted by coming to the scene, but, in the company of the members of the army.

Upon arrival at the scene, those responsible for barricading the road fled.

Constable Tichaona Merica pursued and managed to apprehend Leonard Rebanewako, the second appellant, whom he positively identified through the dreadlocks. Luke Ngangu chased after the first appellant and arrested him.

Both officers testified seeing each of the appellants actively involved in activities that perpetuated something to do with the barricading of the road.

The first appellant was placing a tyre on the road, the second appellant was holding some dry grass which he threw in the burning tyre; he was also seen placing a log on burning tyres.

Tichaona Merica was seated in front of the reaction team vehicle when he saw the events happening.

When the second appellant was arrested he admitted (see p19 of the record of proceedings).

Sergeant Ngangu was also seated in the front when he saw the first appellant throwing a tyre on the fire which was burning.

Constable Yvonne Chingonzo told the trial court a quo, that, the first appellant, upon arrest, admitted to barricading the road and asked for forgiveness for what he had done.

This evidence, found on pp36 and 59, is actually corroborated by the second appellant, and, the effect is that Constable Chingonzo is placed at the scene of the arrest contrary to the averments by the appellants, that, they were arrested by the soldiers and handed over to the police at a later stage.

As a general observation of the record of proceedings, most of his evidence was barely challenged by the defence.

The defence spent most of its time pointing out the similarities of the witness's written statements, and ignored the evidence which directly placed the appellants at the scene of the barricading.

The following issues are not in dispute:

(a) The Harare–Mutare Road was barricaded at Rusape on 15 January 2019 at the 174km peg. Tyres and logs were placed on the road and some of the tyres were burning.

(b) The police and the army reaction team arrived at the scene and the perpetrators fled.

(c) The two appellants were at the scene of the barricade and they were chased after and arrested.

The pertinent question is: whether the two appellants were part of the perpetrators?

The version of the appellants, deduced from the defence, is that they were merely passers-by at the crime scene. They were arrested while running away.

On p53 of the record of proceedings, the first appellant stated, that, whilst they were using the Mutare Road, they passed where people were violent. After passing, they heard people shouting “soldiers” and they started running.

The second appellant, relating the same event on p58, stated that, when they were in Mutare Highway and had passed the mob, they started running away since they had passed the scene; they were trying to separate themselves from the scene.

One can see the difficulties the two appellants find themselves in trying to explain their presence at the scene and why they were arrested.

However, as the State counsel properly put it in the heads of argument, the appellants were at or near the scene of the crime; they ran away when the police and the army arrived. They were caught in the process of running away.

The army and the police caught them by surprise, and, the probabilities, deduced from the circumstances of this case, is that the appellants were arrested because they were the last to be on the scene participating in the barricading.

The police details witnessed the two partaking in the barricading and chased after the two.

The court weighed both versions presented by the State and the appellants and believed the State.

The court a quo remains the domain on the issue of credibility, and, the factual findings of the lower court cannot easily be interfered with by a superior court unless the lower court's findings are so outrageous or irrational that no tribunal would act upon it: see S v Mpetha and Others 1983 (4) SA 262; S v Mlambo 1994 (2) ZLR 410 (S); Lovemore Dewa v S HH206-14; S v Mashonganyika HH131-18.

The trial magistrate reached a verdict after a competent analysis of evidence adduced, and, there is no basis by this court to quash that conviction; there is no irregularity shown by the appellants: see S v Gore 1991 (1) ZLR 117 (H)…,.

The conclusion by the court a quo is far from being erroneous, and, there are no compelling reasons advanced to this court to justify interference: see S v Madeyi 2013 (1) ZLR 14 (H)…,.

The defence went at sea attacking the contradictions between the written statements by the police details and their evidence in court.

It is not in dispute, that, the witnesses wrote almost identical versions of what happened on 15 January 2018.

That is not strange, since it happened that all three witnesses observed the chain of same event.

I do not agree with the defence, that, these statements are a result of connivance among the police witnesses.

A witnesses statement is not, per se, evidence but a precis of what the witnesses perceive happened.

In most cases, such a statement is prepared by a police detail. However, when juxtaposed with oral evidence in court, under oath, the oral evidence in court has more probative value for the assessment of the witness conduct in court, demeanour, and credibility.

The written statement forms part of the tools used by a court in evaluating the credibility of the witness, but, a statement cannot be classified as evidence so to speak, in my view. It is not confirmed by the fact that he said the same thing to somebody else on a previous occasion: see S v Moyo 1989 (3) ZLR 250 (S)…,.

The defence did not manage to prove that the witness statements or evidence discrepancies were material.

The discrepancies in witness's statements must be of such a magnitude and value that it goes to the root of the matter to such an extent, that, their presence would no doubt give a different complexion of the matter altogether: see S v Nduna and Another 2003 (1) ZLR 440 (H).

Discrepancies whose presence do not usher in that change should be regarded as immaterial, and, as such, of no value in the determination of the truth or otherwise of the matter before the court.

The criticism advanced by the defence, on the discrepancies, does not justify this court to interfere with the conviction.

Identification of the appellants, by the police, was direct, and, the police pursued the very people whom they have seen participating in the barricading and burning of tyres.

Those people are the two appellants.

I am convinced, that, the conviction is beyond reproach and hence the appeal against conviction is dismissed.

The soldiers were part of the reaction team constituting both army and police, and, the latter, has the right to arrest offenders and the police details did their constitutional mandate to arrest the appellants.

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

On 21 November 2018, we outlined reasons for dismissal of the appeal. The written reasons are captured herein.

Both appellants were convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted, on their own plea of guilty, for having assaulted the complainant with fists and booted feet several times all over the body for having worn a ZANU PF t-shirt.

The facts informing the charge, as discerned from the Outline, are that, on 4 July 2018, at 1600 hours, at Sedze Bottle Store, Chief Mutasa, Mutasa the complainant, who was wearing a ZANU PF t-shirt was approached by both appellants who questioned why he was wearing a ZANU PF t-shirt. Thereafter, the appellants teamed up and subjected the complainant to assaults till he fell to the ground and they persisted with the assault, kicking him with booted feet before the complainant made good his escape.

The complainant sustained injuries as follows: painful chest, painful teeth, and swollen face.

The appellants were each sentenced to 12 months imprisonment of which 4 months imprisonment was suspended for five years on the usual conditions of good behaviour.

Dissatisfied with the sentence imposed on them, both appellants lodged an appeal against sentence. The four (4) grounds of appeal are as follows:

“1. The learned magistrate in the court a quo erred in not considering community service or the payment of a fine as competent sentence.

2. The court a quo erred in holding imprisonment as the only deterrent punishment and failing to consider other forms of punishment, considering that both appellants were first offenders who pleaded guilty to the offence.

3. Further, the learned magistrate erred by ignoring the general principle of keeping first offenders out of prison, especially if there are no compelling reasons for the imposition of a custodial sentence.

4. The court a quo erred by failing to accord a plea of guilty sufficient weight it must be accorded.”

The respondent opposed the appeal, arguing that the sentence imposed was appropriate in the circumstances of a politically-motivated assault.

From the grounds of appeal, what falls for determination in this case is whether or not the court a quo, in sentencing the appellants, judiciously applied its mind to the general sentencing principles in the exercise of its sentencing discretion.

It is trite law, that, the determination of sentence, in criminal matters, is pre-eminently a matter for the discretion of the trial court: see S v Mungwenhe and Another 1991 (2) ZLR 66; S v Matanhire and Others HH18-03; and S v Mundowa 1998 (2) ZLR 395.

In S v Mundowa 1998 (2) ZLR 395 it was held, that, a superior court will not lightly interfere with a court's sentence unless the discretion was not judiciously exercised; that is, unless sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court would have imposed it.

In the present case, the sentencing court reasoned, that, any other form of sentence would trivialise an otherwise serious politically motivated assault which occasioned serious injuries on the complainant as per the medical evidence.

The sentencing court took into account that the nation was in an election mode and that there was need to pass a deterrent sentence so as to promote peace and political tolerance.

The court took note, that, the appellants were first offenders who pleaded guilty and gave credit for that by suspending a portion of the prison term.

The question that begs for an answer is: given the circumstances of the matter, and the assessment of sentence, was there an error committed by the sentencing court in determining and/or applying facts and sentencing principles in a bid to come up with an appropriate sentence?

If there was an error, then, it amounts to a misdirection warranting interference; but, if there was no error, then, there is no basis and justification for interfering with the sentencing discretion of the court.

It is important to bear in mind, that, in an appeal against sentence, the question for the Appeal Court is not what sentence it would have imposed, but, whether or not the sentencing discretion was improperly exercised and whether the sentence imposed is so outrageous as to induce a sense of shock.

In the case of S v Berliner 1967 (2) SA 193 AD…, the court explained, elaborately, what falls for consideration in an appeal against sentence when it held that:

“As the essential inquiry in an appeal against sentence, however, is not whether the sentence is right or wrong, but whether the court imposing it exercised its discretion properly and judiciously.

A mere misdirection is not, by itself, sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or serious that it shows directly, or indirectly, that the court did not exercise its discretion at all or exercised it improperly or unreasonably.

Such a misdirection is usually termed one that vitiates the court's decision on sentence.

That is the type of misdirection that the dictates of justice clearly entitle the Appeal Court to consider the sentence afresh.

The enunciated stance clearly shows, that, an Appeal Court does not lightly interfere with the sentencing discretion and only does so when the sentence so imposed shows an improper exercise of discretion, and sentencing discretion which is contrary to the interests of administration of justice.”

CHINHENGO J, in S v Mutemi 1999 (2) ZLR 290 H…, adopted this approach, albeit, in a review, when he had this to say:

“I will therefore, despite the failure by the magistrate, in principle, to adopt the correct approach to sentence in this matter, confirm proceedings as having been in accordance with real and substantial justice.”

Also on point is section 38(2) of the High Court Act [Chapter 7:06]. It provides:

“Notwithstanding that the High Court is of the opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be set aside or altered unless…, the High Court considers that a substantial miscarriage of justice has actually occurred.”

In the present case, the fact that the court a quo did not give detail on discarding the option of a fine and community service cannot be said to vitiate the proper exercise of sentencing discretion; moreso, given the reasoning that the court took it other forms of sentence would trivialise an otherwise serious offence.

The court did not take that assault as an ordinary assault, but a politically-motivated assault which involved violation of the Constitutional rights of freedom of participation and aligning one to a party of their own choice.

The court, in its reasoning, considered the politically motivated assault as a serious offence for which community service was not appropriate.

In the case of S v Chiweshe 1996 (1) ZLR 425 it was held, that, it is not every case where an accused is sentenced to a short sentence of imprisonment that community service is imposed.

See also S v Chikomo HH107-94 in which the court remarked, that, there is need for caution in imposing community service on offenders lest there be risk of adverse public reaction.

In this case, the sentencing court was mindful of the fact, that, the politically motivated assault occurred at the backdrop of a politically charged environment with a clarion call for need to maintain political maturity, tolerance, and so as to conduct the national election in peace.

I am alive to the fact, that, the sentencing provisions for assault, as provided for in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provide for the option of a fine up to level fourteen or imprisonment for a period not exceeding 10 years or both.

It is also settled, that, where the penalty provision provides for the option of a fine, that should be the starting point before resorting to the rigorous sentence of imprisonment.

In the case of State v Matanhire 1982 (1) ZLR 139 McNALLY J…, had this to say:

“When sentencing first offenders, the court should consider very carefully whether to send them to prison. The courts should resort, more frequently, to fines than they have done in the past, if the circumstances of the case allow it…,.. This does not mean a blanket rule that criminals only lose their amateur status after their second offence. The court should, in each case, ask itself 'is it necessary to send this man to prison for the offence?' Only if the answer is 'yes' should a term of imprisonment be imposed.”

See also S v Ngombe HH04-87 and S v Mugande HB132-17.

In S v Mugande HB132-17, the court had this to say in respect of a prison sentence:

“It is trite a principle of our law that prison sentences are reserved for serious offence. The principle is well established that custodial sentences are only to be imposed as a last resort where a non-custodial sentence would tend to trivialise the case. The guiding principle is, however, that, the sentencing court must exercise its discretion, and, where such discretion is not used judiciously, a higher court has untethered right to interfere with such sentence in the interests of justice.”…,.

What is clear in all these cases is that the sentencing court has to properly exercise its sentencing discretion.

The circumstances of each case come into consideration holistically. The thought process and reasoning ought to be visible in the reasons for sentence.

In this case, the sentencing court did not consider the assault as an ordinary assault but a politically-motivated one which called for deterrence.

The trial magistrate reasoned, that, other forms of sentence would trivialise the matter and imposed a prison term with a portion suspended.

The failure to record details of the thought process, given the reasons for sentence, in my view, does not vitiate the exercise of the sentencing discretion to the detriment of the interest of administration of justice.

The circumstances of the case warranted imposition of imprisonment.

The sentencing court sought to match the offence to the offender and decided on an appropriate sentence which cannot be described as outrageous.

In S v Mark Tekwane HH204-01 and S v David Pedzisa HH184-02 effective prison terms were imposed for politically-motivated assaults.

The sentencing court, in this case, was mindful of other sentencing options which it discounted and gave reasons for imposing a custodial term.

The sentence of 12 months with 4 months suspended on usual conditions of good behaviour for a politically motivated assault, in the circumstances, was befitting. The sentencing discretion was properly and judiciously exercised such that there is no basis for interference with the findings of the court a quo.

Consequently, the appeal against sentence is dismissed.

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Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

HH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

HH482-16 : THE STATE vs PHILLIP MASHAVA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

SC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HB61-15 : MICHAEL NDIWENI vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI
Ruled By: KAMOCHA J

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J

HMT07-20 : FIBIAN MUNYUKI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

Categories

Law Portal Zimbabwe

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

HH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE Ruled By: CHITAPI J

HH482-16 : THE STATE vs PHILLIP MASHAVA Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

SC117-21 : TAKUNDA MADAMOMBE vs THE STATE Ruled By: BHUNU JA

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE Ruled By: MAKONESE J

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE Ruled By: KAMOCHA J and TAKUVA J

HB61-15 : MICHAEL NDIWENI vs THE STATE Ruled By: KAMOCHA J and TAKUVA J

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA Ruled By: MAKONESE J

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI Ruled By: KAMOCHA J

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE Ruled By: MAWADZE J and WAMAMBO J

HMT07-19 : STATE vs EVANS MUNOTUMAANI Ruled By: MUZENDA J and MWAYERA J

HMT07-20 : FIBIAN MUNYUKI vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE Ruled By: MUSAKWA J and MWAYERA J

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Law Portal
Zimbabwe

HH222-18 : THE STATE vs SIMON TARANHIKE and SHADRECK MATENGABADZA and STEPHEN MATUTE and GIVEMORE KUFA and PRECIOUS MUROVE
Ruled By: TSANGA J and ASSESSORS: CHIDYAUSIKU and MSENGEZI

HH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

HH482-16 : THE STATE vs PHILLIP MASHAVA
Ruled By: MWAYERA J and ASSESSORS: CHIDAWANYIKA and CHIPERE

SC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

HB34-15 : ELVIS NDLOVU and RODRICK NDLOVU vs THE STATE
Ruled By: MAKONESE J

HB45-15 : TALENT MTUNZI and SHELLY NCUBE vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HB61-15 : MICHAEL NDIWENI vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HB70-15 : THE STATE vs NOTHANDO CHITANGU and ENIAS NDUNA
Ruled By: MAKONESE J

HB71-15 : THE STATE vs JACOB CHIBHUNHE and MASIMBA CHIBHUNHE and JAMES MAHACHI
Ruled By: KAMOCHA J

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMT07-19 : STATE vs EVANS MUNOTUMAANI
Ruled By: MUZENDA J and MWAYERA J

HMT07-20 : FIBIAN MUNYUKI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J