The
appellant and another were convicted of stock-theft as defined in
section 114(2)(a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] after a full trial….,.
He
appeals against both conviction and sentence.
His
various and vague grounds of appeal, which do not meet the
requirements of the Rules of this court, are a feeble attempt to
state that the evidence led during trial did not meet the threshold
of proof beyond a reasonable doubt.
The
court a
quo
found that the appellant, together with his accomplice, had stolen
the two bovines and hired the second State witness, who owned a motor
vehicle, to ferry their ill-gotten loot into Chitungwiza. He charged
them US$30= for the trip. He knew the appellant's accomplice. They
gave him the story that they had bought meat from the farms just
outside Chitungwiza but had failed to bring it home that day. They
agreed to embark on the journey the next morning. Upon arrival at
their destination, the second State witness, Dimmie Mabhunu, told the
court that his vehicle started to overheat. The meat was contained in
seven bags which were at an ant-hill. There was a river nearby so he
decided to fetch water to resolve the vehicular challenges he faced.
From the river he heard local villagers shout “Thief! Thief!” His
clients were in trouble. He did not go back. Police picked him up
later. The two clients were arrested by the locals for stock theft.
Police decided to charge the two after he explained that he was
unaware that the cargo was stolen.
The
court correctly observed that the second State witness, Dimmie
Mabhunu, was a possible accomplice whose evidence needed to be
treated with caution. In
the basic sense, an accomplice witness means a witness to a crime
who, either as principal, accomplice, or accessory, was connected
with the crime by unlawful act or omission on his or her part,
transpiring either before, at time of, or after commission of the
offence, and whether or not he or she was present and participated in
the crime. The word 'accomplice' has not been defined by the
Zimbabwe Criminal Procedure and Evidence Act [Chapter 9:07].
However, a perusal of the case law appears to suggest that, in
Zimbabwe, an accomplice is one of the guilty associates or partners
in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a
conscious hand in the commission of crime. It can also be said that
an accomplice is one concerned with another or others in the
commission of a crime or one who knowingly or voluntarily co-operates
with and helps others in the commission of crime. An accomplice, in
this sense, is a competent witness provided he is not a co- accused
under trial in the same case. But such competency, which has been
conferred on him by a process of law, does not divest him of the
character of an accused. An accomplice, by accepting a pardon under
section 267(2) of the Criminal Procedure and Evidence Act [Chapter
9:07], becomes a competent witness, and may, as any other witnesses,
be examined on oath; the prosecution must be withdrawn and the
accused formally discharged under section 267(2) of the Criminal
Procedure and Evidence Act [Chapter 9:07] before he can become a
competent witness. Even if there is an omission to record such
discharge an accused becomes a competent witness on withdrawal of
prosecution.
It
will be clear from the above that Dimmie Mabhunu did not qualify to
be treated as an accomplice since, arising from what the appellant
must have said to the police, as found by the trial court, the police
decided not to treat him as part of the criminal enterprise. Although
the police picked him up, or arrested him, in connection with this
offence, he was never formerly charged. In other words, he was never
treated, by the police, as part of the theft of the two bovines in
question. The trial court was fully aware of the need to treat his
evidence with caution. It mentioned that he was a “possible
accomplice” thereby qualifying his status as a witness from being
an accomplice in the strict sense. I am unable, therefore, to agree
with the criticism by the appellant's counsel that the witness's
evidence ought to have been regarded as coming from an accomplice
although, as in tradition, due to his closeness to the events
constituting the crime charged, the court was required to treat his
evidence with the necessary caution. I am satisfied that it did so.
The
learned trial magistrate correctly warned himself of the apparent
dangers posed by such type of accomplice witnesses who, out of their
intimate knowledge of the manner in which the crime was committed,
are so placed as to easily and conveniently embellish their evidence
in order to divert attention from their true role by falsely heaping
all blame on their fellow accomplices. See S
v Ngara
1987 (1) ZLR 91 (S). As such, there is need for corroboration of the
evidence led from such witnesses.
The
appellant argued that the court erred in disbelieving his story that
he in fact had been asked by his friend and accomplice to come along
and assist Dimmie Mabhunu to load certain bags of beef from the bush.
The reason the beef had been left in the bush was that the place was
inaccessible by vehicle. But the magistrate cannot be faulted when he
rejected the appellant's version because, by his own admission,
Dimmie Mabhunu left to fetch water for his over-heating vehicle. He
did not run away as the appellant claims. He and his accomplices were
found with the meat. It is a fact that the meat was produce of stolen
cattle.
In
Last Mupfumburi v State HH64-15…, I said:
“In
R
v Mokoena
1956 (3) SA 81 (A) at 85-86
it
was laid down that the uncorroborated evidence of a single witness
should only be relied upon if the evidence was clear and satisfactory
in every material respect. Slight imperfections would not rule out
reliance on that evidence but material imperfections would. The court
stated that single witness evidence should not be relied upon where,
for example, the witness had an interest adverse to the accused, or
has made a previous inconsistent statement, has given contradictory
evidence or had no proper opportunity for observation. However, in
the latter case of S
v Sauls & Ors
1981 (3) SA 172 (A), the Appellate Division stated that there was no
rule of thumb to be applied when deciding upon the credibility of
single witness testimony. The court must simply weigh his evidence
and consider its merits and demerits. It must then decide whether it
is satisfied that it is truthful, despite any shortcomings, defects
or contradictions in that testimony. The approach adopted in the
Sauls
case was followed in the case of Nyabvure
SC23-88.
See also Worswick
v
State
SC27-88; S
v Mukonda
HH15-87;
S
v Nemachera
SC89-86; and S
v
Corbett
1990 (1) ZLR 205 (S).”
In
the present case, I am satisfied that the State has established proof
of guilt beyond a reasonable doubt, notwithstanding the fact that the
appellant had been subjected to assault by villagers. That assault
ought to be subject of separate police investigations which in no way
tainted the quality of the evidence adduced during the appellant's
trial by the court a
quo.
In
the circumstances, therefore, the appeal against conviction fails.
