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

The State alleged that they murdered the deceased on 18 November 2008. The deceased was their paternal grandfather. They were staying with him in Mhondoro. Their father had died, and their mother stays in Epworth in Harare.

The accused persons were charged with murder. The State alleged that they planned to eliminate the deceased. Accused One armed himself with a knobkerry and went to where the deceased was sleeping in the verandah. He, while Accused Two stood guard, struck the deceased twice on the head.

Accused One's defence is that he acted in self defence when the deceased had cornered him in a corridor.

He said the deceased was armed with a raised spear. He struck the spear from the deceased's hand. The deceased remained standing in the corridor blocking his escape route. He then struck the deceased once on the head to create an escape route, and escaped. He thereafter sent Accused Two to go and see the injury he had caused. Accused Two made a report to him and they, together, went to see the deceased's injuries after which they devised a plan to allege that thieves had invaded the homestead and injured the deceased.

Accused Two's defence is that he did not participate in the struggle between Accused One and the deceased.

He said the deceased came to their room before 04:00am, looking for Accused One. He was armed with a spear. Accused One was not in the room having gone to attend a traditional ceremony in the village. He reported this to Accused One when he came back at 04:00am. Accused One then said maybe the deceased had come because they had delayed in going to plough the fields.

Accused One went to collect cattle harnessing equipment. He there met the deceased and came back and told him that he had struck the deceased with a stick. He asked him to go and observe the deceased's condition. He did and brought a report to Accused One. He later went back to the deceased with Accused One, after which they connived to allege that thieves had invaded the home so they could blame the deceased's injury on the thieves.

Evidence was led by the State and the accused persons. There were no independent eye witness's to the murder.

The State relied on the evidence of Elizabeth Chanengeta and the accused person's confirmed warned and cautioned statements.

Elizabeth Chanengeta was the deceased's wife and is the accused's grandmother. She was asleep when the incident took place. She was woken up by the accused persons after the deceased had already sustained the injury which caused his death. Her evidence is therefore merely on what she witnessed after the fatal blow had been delivered.

The postmortem report does not support the delivery of two blows as alleged in the State Outline. It confirms Accused One's evidence that he struck the deceased once on the head to create an escape route. The deceased had cornered him in a corridor.

Accused One's warned and cautioned statement refers to his delivering two blows. Accused One however explained it by saying the first blow was to the spear and the second to the deceased's head. We accept that explanation as it is supported by medical evidence.

The probabilities favour the accused person's explanation.

If the accused persons had planed the murder, as alleged by the State, they would have killed the deceased, who lay helpless in the corridor, before calling out that thieves had invaded the homestead.

Why would they risk his surviving to narrate what had happened?

We are convinced the deceased was injured in the circumstances narrated by the accused persons.

After the determination of the above the following facts became common cause:

The accused persons are the deceased's grand children. They stayed with him and his wife in Mhondoro. They are the deceased's late son's children. Their father died leaving them in the custody of their paternal grandparents. Their mother stayed in Epworth with their two siblings.

The accused persons were not happy with their living conditions. Their grandfather, the deceased, used to wake them up before dawn to go and plough fields. That, according to their mother, was his way of life even during the period she stayed with him as a daughter in law.

On the fateful night, Accused One attended a traditional ceremony and came back home at 04:00am. He received a report from Accused Two that the deceased had been looking for him and that he was carrying a spear. He assumed that the deceased wanted them to harness cattle and go to the fields to plough. He went to get cattle harnessing tools from where they are kept. He carried a T shaped curved stick he said they used whenever they go to the fields to plough. He entered a corridor from which he was to access the room where the harnessing tools were kept.

While he was in that corridor, he saw the deceased coming from behind, armed with a raised spear. The first accused struck the spear with the stick he was carrying and it fell down. The deceased then stood in the passage unarmed. The first accused struck him on the head with the stick. The deceased fell to the ground. The first accused went back to their room and told Accused Two what he had done. He sent Accused Two to go and see the deceased's condition. Accused Two came back and reported that the deceased condition's was serious. They went back to the scene, saw the deceased's condition and agreed to report to their grandmother that thieves had invaded the homestead so that they would blame the deceased's injuries on the alleged thieves.

They gave chase to the imaginary thieves until their grand mother called them back fearing that they would be injured. They came back and took their grandmother to where the deceased was. They saw that his condition was critical. The news of the incident started spreading in the village. As people gathered at the homestead, the accused persons agreed to hide the stick Accused One had used. Accused Two threw it into a blair toilet.

Arrangements were made to take the deceased to a clinic. The clinic could not attend to him due to the seriousness of the injuries. They later attempted to take him to the District Hospital but he died on the way.

The police came while Accused One, and others, were taking the deceased to hospital. Accused Two, who was at home, told them that the deceased had been attacked by thieves. They went back to their station and came back after the deceased had died and his body had been brought back home. Accused Two, again, told them that the deceased had been attacked by thieves. They took him to the police station, where, after further questioning, he owned up and told them the truth, that, the deceased had been struck on the head by Accused One.

Accused One was arrested.

The accused persons recorded warned and cautioned statements in which they told the police that Accused One had struck the deceased in the circumstances explained in Accused One's statement....,.

Accused Two

Accused Two did not, as alleged by the State, participate in the delivering of the blow which caused the deceased's death. He should not have been charged as an actual perpetrator but as an accessory after the fact. He therefore cannot be convicted on the charge of murder as he only took part after the fatal blow had been delivered.

Counsel for the accused submitted that the accused cannot be convicted of murder as he only assisted after the fatal blow had been delivered and before the deceased had died. He submitted that Accused Two's case must be treated as that of an accessory after the fact. He relied on the case of S v Mungati & Another 1999 (2) ZLR 1 (H)…, where CHINHENGO J said;

“An accessory after the fact is one who, after the crime has been completed, aids or abets the principal perpetrator by conduct which deprives the owner of his rights. An accessory after the fact cannot be convicted of the principal offence on a charge of murder: see R v Mlooi & Ors 1925 AD 131.”

Counsel for the State conceded that Accused Two cannot be convicted of murder as he assisted Accused One after the fatal blow had been delivered. He however submitted that he should be convicted as an accessory after the fact to the crime of murder as he gave false information to the police after the deceased had died.

The determination of criminal trials, after the codification of our Criminal Law, must be based on the provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). The former common law positions, as pronounced through case law, must yield to the provisions of the Code if there is a difference between the precedents created by case law and the clear provisions of the Criminal Law (Codification and Reform) Act (the Code).

Where the Criminal Law (Codification and Reform) Act (the Code) modifies Roman-Dutch law, its provisions must be followed. Case law based on Roman Dutch law, before its modification by the Code, can only be followed to the extent relevant to the provisions of the Code. In other circumstances, it can only be used as a guide in interpreting the provisions of the Criminal Law (Codification and Reform) Act.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides as follows;

“(1) The non-statutory Roman Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law.

(2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of -

(a) The criminal law referred to in subsection (1); or

(b) The criminal law that is or was in force in any country other than Zimbabwe.”

In this case, I will analyse the two situations from which the liability of Accused Two can be determined. These are;

(i) What he did after the first accused had struck the fatal blow, but before the deceased died; and

(ii) What he did after the deceased had died.

Accused Two's acts before the deceased died

Accused Two assisted the first accused after the fatal blow had been delivered. He can, if the facts of this case proves it, be convicted of assisting the first accused as provided in section 273(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

Section 273 of the Criminal Law (Codification and Reform) Act provides as follows;

“A person charged with any crime may be found guilty of -

(a)…,.; or

(b) Assisting a perpetrator of that crime or of any other crime of which the person might be convicted on the charge; if such are the facts proved.”

An accused who assists the actual perpetrator, after the commission of the offence, is, in terms of section 206 of the Criminal Law (Codification and Reform) Act (the Code), an accessory after the fact.

In this case, Accused Two rendered assistance, after Accused One had delivered the fatal blow but before the deceased had died. He, when the deceased was still alive, lied to their grandmother and the police that the deceased had been attacked by thieves. He, when the deceased was still alive, hid in a toilet, the stick Accused One had used to attack the deceased.

For one to be an accessory after the fact to any crime he or she must have acted in a manner that conceals the crime committed by the actual perpetrator or helped the actual perpetrator to evade justice.

When the second accused acted as described above there was no murder to be concealed.

Section 206 of the Criminal Law (Codification and Reform) Act (the Code) provides as follows;

“Any person, other than an actual perpetrator of a crime, who -

(a) Knowing that an actual perpetrator has committed a crime; or

(b) Realising that there is a real risk or possibility that an actual perpetrator has committed a crime; renders to the actual perpetrator or to any accomplice of the actual perpetrator any assistance which enables the actual perpetrator or accomplice to conceal the crime or to evade justice or which in any other way associates the person rendering the assistance with the crime, after it has been committed, shall be guilty of being an accessory to the crime concerned.”

The elements of the crime of being an accessory after the fact are therefore;

1. Knowledge that the actual perpetrator has committed a crime, or the realization that there is a real risk or possibility that the actual perpetrator has committed a crime, and

2. Rendering the actual perpetrator or his accomplice assistance which enables him to conceal the crime or to evade justice, and

3. The assistance must be rendered after the crime has been committed.

In this case, the second accused rendered the abovementioned assistance to the first accused before the deceased died. He cannot therefore be found guilty of being an accessory after the fact to the crime of murder which had not been committed when he rendered the abovementioned assistance.

It is, however, obvious that when he rendered assistance to Accused One, he was aware, and had realized, that Accused One had committed a crime. He might not have known exactly what crime had been committed, but that does not matter.

In terms of section 207(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code):

“(1) A person may be found guilty as an accessory to a crime even if -

(a)…,.

(b) The person is only aware of the fact that the conduct of the actual perpetrator is unlawful but unaware of the nature of the crime committed by the actual perpetrator or the manner in which it was committed;…,.”

This means, in an appropriate case, the accused can be convicted as an accessory after the fact of the crime which had been committed at the time he rendered assistance even if at the time of rendering assistance he did not know what crime had been committed. He must however believe that a crime has been committed, and, with that knowledge, render assistance to conceal it or help the actual perpetrator to evade justice.

In this case, Accused One had delivered the fatal blow when Accused Two rendered assistance. He was, sent, to observe the deceased's injuries. He went back to Accused One and reported, the seriousness of the injuries he saw. He then went back to the scene with Accused One and again saw the injuries Accused One had inflicted on the deceased. It was after this that they agreed to allege that thieves had invaded the homestead to divert attention from Accused One.

Accused Two later hid the stick Accused One had used in a blair toilet.

An offence had been committed, and Accused Two should be convicted as an accessory after the fact of it, if that offence is a competent verdict to the crime of murder.

In terms of section 47 of the Fourth Schedule to the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), infanticide, culpable homicide, or any crime of which a person might be convicted if he or she were charged with a crime of infanticide or culpable homicide, are permissible verdicts to a charge of murder.

Infanticide is obviously not relevant in this case. It is only culpable homicide and its competent verdicts which calls for consideration.

Accused Two cannot be convicted of culpable homicide as death had not occurred when he rendered the abovementioned assistance to Accused One.

In terms of section 49(e) of the Fourth Schedule to the Criminal Law (Codification and Reform) Act (the Code) assault is a competent verdict to a charge of culpable homicide.

An assault had clearly taken place when the second accused rendered assistance to Accused One. The second accused could therefore have been found guilty of assault if he had not done anything after the deceased's death.

Accused Two's acts after deceased's death

In this case, Accused Two gave false information to the police about what had caused the deceased's death. He told them that the deceased's death was a result of injuries inflicted on him by thieves who had invaded their homestead. This was after the deceased had died on the way to hospital and his body had been brought back to the homestead.

He, while still at the homestead, told the police that the deceased had been attacked by thieves who invaded the homestead. He was taken to the police station where he continued to give the police false information. He only owned up after further questioning. In his own words, he said he told the police the truth after they quizzed him. He was then clearly concealing the murder which, he believed, had been committed by Accused One.

In terms of section 208(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) giving false information to a police officer, or other person in authority, concerning the circumstances of a crime, renders the giver of false information an accessory to the crime.

“Without limiting the expression, any of the following forms of assistance, when given to an actual perpetrator of a crime, shall render a person liable as an accessory to the crime in terms of this Part -

(a)…,.

(b)…,.

(c)…,.

(d) Giving false information to a police officer or other person in authority concerning the circumstances of the crime or the whereabouts of the actual perpetrator.”

The second accused gave false information to police officers, whom he knew were investigating the cause of the deceased's death. He deliberately gave them false information to conceal the true circumstances of the crime.

He must therefore be found guilty of being an accessory after the fact to the crime of murder....,.

Accused Two's liability, for assisting Accused One to conceal the cause of the deceased's death and to evade justice can, therefore, not be avoided.

The evasion of justice occurs even in a case where the actual perpetrator would, if charged, be able to, raise a defence which entitles him to an acquittal.

Justice involves the investigation, trial, and determination of a case. Preventing any of these by giving false information to the police or person in authority to conceal the act, or prevent its investigation, trial and determination is an act aimed at evading justice.

The second accused persistently gave false information to police officers who were investigating the deceased's death.

He is therefore found guilty as an accessory to the crime of murder.

The applicant's motor vehicle was..., seized by the third respondent without a warrant. It was seized because the police had information that it had been bought with proceeds from frauds committed by the applicant's brother.,.  The third  respondent's investigations had, by the time he seized the applicant's motor vehicle, established that the applicant had on two occasions been given large sums of money by her brother, who is now on the run, to buy a house., in her own name.,. The applicant had confessed to the police, in an affidavit, that the house belonged to her brother who had asked her to purport to be the buyer on his behalf.

The applicant applied to this court for a provisional order, ordering the respondents to release the motor vehicle to her on the ground that the third respondent had unlawfully seized it without a warrant. She further stated that she did not consent to its seizure. The third respondent does not dispute seizing the motor vehicle without a warrant.  

Section 51(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows:

"(1) A police officer may, without a warrant, search any person or container or premises for the purposes of seizing any article referred to in section forty-nine and additionally, or alternatively, seize any such article-

(a).,.

(b) If he, on reasonable grounds, believes that-

(i) A warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he applied for one; and

(ii) The delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be."

A seizure without a warrant in terms of Section 51(1)(b) must satisfy the two requirements of Section 51(1)(b)(i) and (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The police officer effecting the seizure must, on reasonable grounds, believe that a warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he applied for one; and the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be.

In this case, the first requirement is satisfied by the third respondent's narration of the basis of his suspicion, that the applicant was being used by her brother to spend proceeds of the frauds on properties which were being registered in her name. The third respondent was justified in believing that the applicant had also been used by her brother to purchase and register the motor vehicle in her name. That modus operandi between the applicant and her brother had been established.,. The cumulative effect justifies the third respondent's suspicion that proceeds of frauds were used to buy the motor vehicle in question, and that if he applied for a warrant of seizure on those facts it would be granted.

If that was all that he had to prove, he would have been able to defend his seizure of the motor vehicle without a warrant.

An examination of the third respondent's opposing affidavit, however, reveals that he did not deal with the effect of the delay in seizing the motor vehicle while awaiting the issuance of a warrant of seizure. That leaves the issue of the effect of delay unexplained, and the seizure cannot stand in the absence of that explanation.  

In the case of., MILLER JA, commenting on the South African provision on seizure without a warrant identical to ours, said:

"Lieutenant Colonel Westraad also avers that the seizure was performed in terms of Section 22(b)(i) of the Criminal Procedure Act. He gives no reasons or explanations as to why the police officials did not obtain a search warrant prior to the seizure. Section 22(b)(i) cannot be read in isolation - it must be read together with Section 22(b)(ii). This is so because of the word "and" which appears immediately after Section 22(b)(i). There is absolutely nothing on record to suggest that a delay in obtaining a search warrant would defeat the object of the search."

In this case, the absence of an explanation of the effect of a delay in seizing the motor vehicle, while awaiting the issue of a warrant of seizure is fatal.

The third respondent had said, in his opposing affidavit, that before seizing the motor vehicle he had applied for a warrant of seizure. It became necessary to find out the result of that application, with particular reference to whether it was issued and when it was issued. The warrant of seizure was issued on., albeit twelve days after the applicant's motor vehicle had been seized without a warrant.

The warrant does not have retrospective effect. It could only be acted upon after it was issued.

A reading of Section 50(1) and (2) confirms that a warrant takes effect from the time it is issued. Section 50(1) and (2) provide as follows:

"(1) Subject to sections fifty-one, fifty-two, and fifty-three, an article referred to in section forty-nine shall be seized only by virtue of a warrant issued-

(a).,.

(b).,.

(2) A warrant issued in terms of subsection (1) shall require a police officer to seize the article in question and shall to that end authorize such police officer, where necessary-

(a) To search any person identified in the warrant; or

(b) To enter and search any premises identified in the warrant, or any premises within an area identified in the warrant, and to search any person found upon or in those premises."

Section 50(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] clearly states that an article "shall be seized only by virtue of a warrant issued. This means the warrant must be in existence before the seizure. Section 50(2) clarifies the above by stating that "a warrant issued in terms of subsection (1) shall require a police officer to seize the article in question and shall to that end authorize such police officer, where necessary."

The submissions by counsel for accused number one were quite revealing in our view, when he argued that the police could have done more in expanding their investigation base.

We agree with the observation made that having recovered some of the deceased's personal belongings, an attempt should have been made to involve the forensic departments of the ZRP to try and come up with more positive indicators towards the guilt of the accused in this case.

The guilt of an accused is not a matter of one's personal conviction that the accused did what he is alleged to have done. That conviction must have a firm base and that base must be the tangible evidence available. A strong belief grounded in air will not help.

In the light of the shoddy investigations carried out by police officers in this matter, the applicant has alleged that all these allegations against him were concocted in order to cover up the brutality on him by the arresting details.

In my view, it is not using minimum force to pump several bullets in a man's body in order to arrest him.

When asked whether in his investigation he was able to establish the motive behind the theft of the rifles, Superintendent Charles Ngirishi told the court that the suggestion was that the offence was committed in order to arm would-be robbers. But because of the quantities involved, it was speculated that they may have been stolen in order to sell to third parties.

Therefore, as far as he was concerned, the motive remains un-established.

He, however, maintained that there was fear that the weapons will end up in MDC activists' hands.

When asked, in cross-examination, whether it is reasonable that the applicant would be approached by one of the suspects so as to buy the same weapons he had himself stolen, the Investigations Officer suggested that the person who wanted to approach the applicant intended to make inquiries in respect of how to dispose of the weapons.

The appellant was convicted by a Zvishavane Magistrate of possessing 6.46 kilogrammes of dagga. She was sentenced to 36 months imprisonment of which 10 months was suspended for 5 years on the usual conditions of future good behavior.

The salient facts of the matter are that the appellant's place of abode, Number 99 Mandava Township, Zvishavane, was searched on 1 August 2005 by two members of the Zimbabwe Republic Police, Criminal Investigation Department, who were acting on information.

At the time of the search, the appellant and her spouse and children were not present. The search was carried out in the presence of the maid, Sarafina Maramba. From the evidence of the police details, they did not have a search warrant to carry out the search. Sarafina initially refused them permission to search the house. She, however, later allowed them to do so. It is, however, not clear what prompted her to change her mind. The police details did not justify their search without warrant by the provisions of section 51(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] i.e. they did not testify that they, on reasonable grounds, believed that a search warrant would be issued to them; and, if they had first applied for the same, the delay in obtaining such warrant would defeat the object of the search….,.

The appellant's legal practitioner raised, inter alia, the gross irregularity of the prosecutor's failure to produce the dagga as evidence. [There is no evidence that the appellant was shown the dagga after her arrest]. There is no explanation why this dagga was not produced.

Counsel for the respondent has also pointed out that the search fell foul of the provisions of section 51(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In our view, the conviction cannot stand simply because there is no evidence that the appellant was in possession of the dagga.

As alluded to, the premises were shared by the maid, the appellant, and her spouse amongst others. It could be her spouse or the maid who brought the dagga into the premises. There is no direct evidence that the appellant has anything to do with the dagga. The respondent relied on circumstantial evidence. In the circumstances, the issue of the possession or ownership of the dagga could not be resolved by making findings on the demeanor of the witnesses.

The approach to circumstantial evidence is captured by the learned authors HOFFMAN and ZEFERT in South African Law of Evidence, 3rd edition…,.:

“All circumstantial evidence depends ultimately upon facts which are proved by direct evidence but its use involves an additional source of potential error because the court may be mistaken in its reasoning. The inference which it draws may be non sequitur, or it may overlook the possibility of other inferences which are equally probable or at least reasonably possible.

…,. In R v Blom AD 1939 AD 188 at 202, 203, WATERMAYER JA referred to 'two cardinal rules of logic' which given the use of circumstantial evidence in a criminal trial:

(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one drawn. If they do not exclude other reasonable inferences, then they must be a doubt whether the inference sought to be drawn is correct.

See also S v Marange & Ors 1991 (2) ZLR 244 (SC); Teper v R [1952] AC 480 at 489; S v Shoniwa 1987 (1) ZLR 215 (SC) at 218F; and S v Vhera HB74-03.”

As alluded to above, many other persons had access to the premises in question, inter alia, the appellant's spouse, maid, and the appellant's six children. Because it can be inferred that any of these persons could have brought the dagga, the facts proved do not exclude every reasonable inference from them save the one drawn by the trial court. In fact, there is nothing at all that shows why, of all these persons, the court a quo linked the dagga with the appellant. There is nothing in the record at all. This also explains why the maid was the first person to be arrested for the possession of the same dagga.

The cogency of the circumstantial evidence does not rule out these other persons being the possessors of the dagga.

From the foregoing, the conviction cannot stand.

Accordingly, the conviction of the court a quo is quashed and sentence is set aside.

The applicant seeks to rely on allegations of assault by the police, which he had not even brought to the attention of the trial court.

The alleged culprits are not even named.

Assistant Inspector Mupazi, who attended the scene, told the court that he found the deceased and Abigail George close to each other. Abigail George was covered with a blanket. He did not see anything that could have been used to carry the deceased on its mother's back.

However, the accused, in his testimony, told the court that the deceased was strapped to its mother's back with a wrapping material which can be described as a small blanket. Considering that the accused's warned and cautioned statement was recorded only a week after the incident attempts should have been made to clarify this aspect.

If the accused had attempted to carry Abigail George away; how far did he go from the scene? How did Abigail George happen to be found close to the deceased? Who covered Abigail George with the blanket?

It appears that no timeous investigations were made to trace the source and destination of the emails in 2006 when the offences were allegedly committed. It seems no investigations were carried out to ascertain whether the accused owned, or possessed, a computer to try and establish whether or not he had sent, or received, any of the disputed e-mails.

The Investigating Officer also gave evidence.

The trial continued with the testimony of Detective Assistant Inspector Nekati and Sergeant Joseph Jengeta. on the nature and extent of their investigations.

Detective Assistant Inspector Nekati recovered a CD carrier bag from Angirai Soundo who purportedly purchased it from the first accused's girlfriend. The police officer did not recall the name of the girlfriend. It was positively identified by Father Sylvester Ibgo. The first and second accused persons were allegedly implicated by the late Joseph Maira who was the first suspect to be apprehended. He died before the trial started.

He was cross examined by the first accused's counsel.

In the light of the jettisoning of the warned and cautioned statement, he relied on the recovery of the CD carrier bag and the Nokia 5110 cellphone to link the first accused with the crime. The first accused led him to the residence of the purchaser of the cell phone. He took the purchaser to the vehicle and asked him, firstly, if he knew the accused who was seated in the back of the police truck, and, secondly, whether he had purchased anything from him. He denied that the first accused identified Angirai Soundo as the seller of the cellphone. He admitted that he did not conduct an identification parade. He stated that he did not search for, nor record, any statement from the first accused's girlfriend.

Joseph Jengeta, in the company of Detective Sergeant Mubari, Nyakuwanikwa and Mavhengere recovered a carton of cooking oil and a carton of kapenta in Rusape; an assortment of compact discs and cooking oil in Sakubva and a computer central processing unit and key board in Mozambique. The first accused accompanied the police to Mozambique.

A Mozambican customs official who confiscated the computer accessories at a road block identified the first accused as the person from whom the goods were seized. He later handed the goods to the Mozambican police in Manica.

Under cross examination, Joseph Jengeta stated that he did not record the name of the Mozambican customs official who identified the first accused as the one from whom the goods were confiscated. He averred that the customs official allegedly released the first accused to enable him to collect proof of ownership of the goods.

Joseph Jengeta testified that a Mozambican Customs official identified the accused who was in his tow as the person from whom he seized the computer accessories. The customs official was not called to testify. The basis of his certainty that it was the accused was not indicated.

Detective Mpunzi testified that the applicants gave each two sets of extra-curial statements. The first set was in the presence of their erstwhile legal practitioner. The second set was in the absence of their legal practitioner. According to Detective Mpunzi this was after they had dispensed with the services of their legal practitioner and disowned the statements they had made in his presence. Strangely, and indeed disturbingly, Detective Mpunzi said he destroyed the first set of statements made in the presence of their legal practitioner. That this conduct was unwise and wrong is beyond dispute. Its lack of wisdom is evinced by their necessity because of the turn of events. The Detective, on the one hand, says these statements contained partial admissions. The applicants, on the other hand, say they contained complete denials of the crime. If the statements were not torn by the detective, there would be no such dispute.  The applicants allege that the latter set of statements was a product of assault and torture. Indeed, after medical examination at the behest of the magistrate who presided over their remand, two of the applicants had traces of minor injuries. The procedural aspects of the Investigating Officer are less than ideal.

But are these weaknesses sufficient to entitle the applicants bail?

Equally unlawful is the occupation and the take-over of the applicant's property in order to induce Gary Denis Godfery (the deponent) to surrender himself to the police. The police have a wide range of lawful means of effecting a lawful arrest including the use of minimum force to achieve their objective.

In the present matter their actions are understandable though unlawful.

They are faced with a situation where a suspect is evading and avoiding arrest, this on its own, is frustrating. What is even more frustrating is the fact that while he does not voluntarily surrender himself to the police for questioning, he decides to avail himself to his legal practitioners only and no effort is made by his legal practitioner to bring him to the police station. Such actions by the legal practitioners borders on an attempt to defeat the course of justice. It is, therefore, improper.

Gary Denis Godfery's actions are not the actions of a law abiding citizen. In his affidavit quoted above he makes it clear that applicant does not intend to voluntarily surrender the farm to its owner, that is, the State. It is clear therefore that applicant through, Gary Denis Godfery, is not prepared to be governed by the laws of the land, hence his defiance. He is not prepared to be questioned by the police. The laws of this country, and, indeed, all over the world, require everybody to co-operate with the law enforcement agents. In casu, we have a suspect who prays for an order preventing the police from carrying out investigations where a possible offence has been committed. This is absurd, what is even more absurd is that his lawyer seems to be ill-advising him to avoid questioning by the police.

Counsel for the applicant argued that the police have been arresting white farmers during weekends without charge.

While I am not privy to such arrests, the correct position is that Gary Denis Godfery or anyone for that matter is not exempted from arrest, by virtue of his race. His race is not by any stretch of imagination superior to other races. This, unfortunately, is his thinking. Police and prison cell walls recognise no colour, therefore, that argument is untenable. The police are within their right to arrest Gary Denis Godfery wherever and whenever they find him. The rule of law demands equal treatment before the law irrespective of colour.Police should not occupy the farm so as to frustrate its operations, but, should do so for the purposes of apprehending Gary Denis Godfery who seems to be eluding them.

In paragraph 3 of the interim order, the applicant prays that in the event that the first respondent decides to proceed against Gary Denis Godfery, they should do so by way of summons.

Counsel for the appellant also took issue with the fact that during investigations the complainant had mentioned two other people, a Grade 5 pupil and classmate by the name of the Jethiro and Alberto Moyo who was a Form 3 pupil at a neighbouring school.

The other dimension in this matter is the involvement of Sergeant Mapfumo who is related to victims of the then accused on whom $125,000,000= was found. 

Detective Sgt Nhari also testified for the State.

His evidence on how they responded to the report of the deceased's body being found in the paddock of Sandara Farm, and what they observed at the scene, is similar to that of Inspector Chaguta and Detective Cst Elias Katsvere. He is the Investigating Officer of this case. He noticed an injury on the deceased's head and that the deceased's ear had been cut. He saw a stone near the deceased's body which had a patch of human hair on it. They put the deceased's body in a police coffin and proceeded to Magunje where they found the accused at Magunje police station. The accused was on his way to Karoi police station to report that his other child had been found dead at Sandara Farm. They took the deceased to Karoi Hospital mortuary and the accused to Karoi police cells.

Testifying on how he and Detective Cst Elias Katsvere recorded the confirmed warned and cautioned statement from the accused he said the next day they took the accused to their offices for interrogation.

They interviewed the accused for four hours after which he opted to tell Detective Cst Elias Katsvere the truth. He later warned and cautioned the accused who wrote his own statement on a piece of paper. The statement was translated into English at Karoi Court. He read the typed statement to the accused who agreed with it and signed it. He said they took the accused to court within the stipulated 48 hours. He, however, later said they took him to court after three days, on 22 June 2007. He said the accused person was not assaulted as he was co-operating with them.

Under cross-examination, he said they found the deceased's body about 800 meters from Chiumburukwe Road. He observed two wounds on the deceased's body, including the cut ear. He however does not dispute that the doctor found two wounds on the deceased's head. He said a doctor does a thorough examination, therefore the doctor's findings should prevail over his observation. He said while they were at Magunje the accused's uncle rushed to them and said he was with the deceased's father.

On the issue of the hair he said he saw on the stone, he indicated the part of the stone where he said the hair was. He could not answer when he was asked how the court would know that that was where the hair was. He also gave no answer when he was asked why the hair was not on the stone or placed before the court. When the court asked him if he was going to answer the questions he then said the hair was no longer on the stone as the stone and hair were taken to the Forensic Science Laboratory for examination but the examination did not take place due to the non-availability of facilities.

On what happened before and during the interrogation of the accused person he said the accused had been given supper by his uncle. He admitted that 22 officers use the office they used. He initially said no one was allowed to come in during interrogations. When counsel for the accused put it to him that Detective Cst Elias Katsvere said investigating officers would come in to take dockets he conceded that they were coming in to take their dockets. He disputed Detective Cst Elias Katsvere's evidence that the accused was interrogated in the big room and in the Officer-In-Charge Crime's office. He said the accused was interrogated on 19 June 2007. He confessed his involvement on the same day after four hours. They, however, did not record the statement on the same day because they had to take it to Karoi for translation by the prosecutor. When it was put to him that the accused was only taken to court for the confirmation of his statement he said he does not recall. When asked to show the court the accused's handwritten statement he perused the docket and told the court he could not find it.

When asked why the accused's alleged accomplices where not in court he said they were facing the same charge but he had been instructed by the Officer-In-Charge Crime to proceed with the case in the manner he did. When asked whether they kept the accused at their offices after he had confessed he said they kept him so that they could record his fingerprints. When it was put to him that fingerprints are recorded before interviews he conceded and then said they kept him at the offices because their office is not close to the holding cells. He denied spearheading an assault on the accused to force him to give the confirmed warned and cautioned statement.

Detective Inspector Baltmore Jamare told the court that he is the Investigating Officer in this case.

He was assigned the case on 16 February 2009. He interviewed the accused who told him that he had struck the deceased with a cross wheel spanner. He found blood stains on the accused's motor vehicle internal door panels. He checked for blood on the accused's white leather jacket and the clothes he had on and found no bloodstains. He took the accused to his house and searched for blood stained clothes but found none. He took the white leather jacket and cross wheel spanner as exhibits. He observed a deep cut with a diameter of 6cm under the deceased's armpit. The cut had traces showing that a sharp object was used. During the post mortem he noticed that the deceased's lungs and heart had been damaged. Under cross-examination, he said he interviewed residents of No.2 Barrington and established that the accused had come back flashing the lights of his car and hooting continuously. The deceased was driving behind him and blocked him. He was told by Obrian Sibanda that the accused was asking him to open the gate for him. He said the residents of No.2 Barrington confirmed the accused's story. He saw signs of reversing at the place the accused indicated to him as the place the deceased blocked his way forcing him to make a u-turn and drive back to No.2 Barrington.

His evidence agrees with that of Obrian Sibanda, Victoria Laura Dhlamini, Avril Sarudzai Dhlamini and the accused's video-taped indications.

He searched the accused's Flat for the T/shirt the accused said he had been wearing during the scuffle but could not find it. He inspected the scene and observed struggle marks on the grass and the ground. He observed a deep cut under the deceased's armpit. The cut was 6cm in diameter. He attended the post-mortem examination and observed the aforementioned deep cut and damage on the deceased's lungs and heart. He observed the deceased had other injuries on the face, hands and legs.

Inspector Anisto Shumba also testified for the State.

He established that the accused came flashing his lights and hooting for attention. He also established that the accused asked Obrian Sibanda to open the gate for him. He observed struggle marks in the form of the grass that had been trodden. In his own words he said: “From the state of the grass, it clearly indicated that there had been a struggle before the deceased died at the scene but could not say how he met his death.” He found the deceased's car's engine and lights on. While at the scene, he received a radio message from Southerton that there was someone reporting a public fight at No.2 Barrington. He ordered that the person be detained. He later went to Southerton and found the accused seated in his Mercedes Benz. He ordered that he be detained in police cells. He confirmed that the deceased's motor vehicle was parked in front of the gate at No.2 Barrington but slightly facing east.

He thus confirmed the evidence of the residents of No.2 Barrington that the deceased parked his motor vehicle behind the accused's blocking him. He observed the deceased's body without turning it and noticed bruises on the right side of the deceased's face….,.

Sgt Charles Machisa also testified for the State.

He went to the scene on the evening of the murder and left police officers guarding the deceased's body. The next day he went back to the scene where Ruth Nyamupinga identified the deceased's body which was covered by a blanket. He removed the blanket and Ruth Nyamupinga identified the deceased's body to him. He observed nine wounds, one on the stomach were intestines were protruding, two on the chest, two on the neck, three on the head and a slash on the right elbow. He checked for signs of life and noticed the deceased's knees were stiff. He concluded that he was dead. He got indications from the accused and Reza and prepared a s/plan which he produced in court as exhibit 1. He took the deceased's body to Mutoko Hospital where the deceased was certified dead by Dr Mujuru. On 19 May 2010 he recorded the accused's warned and cautioned statement which he produced with the accused's consent as exhibit 2.

The applicant is the Minister of Finance in the Ministry of Finance. On the other hand, the first to third respondents are members of the Zimbabwe Republic Police engaged in criminal investigations concerning cell phone lines 0772 568 807, 0774 346 082 and 0778 437 880 which have to do with the applicant's calls. The first respondent is the Investigating Officer whereas the second respondent is the Officer Commanding, Criminal Investigations (CID). The third respondent is the Commissioner General responsible for all police operations in Zimbabwe. The fourth respondent is a company in the business of mobile telephone communication services and is responsible for operating the above three cell phone numbers.

The police are currently investigating allegations against the applicant to the effect that he unlawfully authorized an employee in his Ministry, one Petronella Chishawa, to go on various foreign trips on special per diem rates thereby showing favour to the said Petronella Chishawa.

In the course of investigations, the first respondent first sought to obtain a record of information pertaining to the above three numbers on 20 June 2011 from the fourth respondent without success.

Having failed to obtain the required information upon request the police invoked the provisions of section 54(2)(a) and (b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. That section permits police to enter premises and obtain evidence upon reasonable suspicion that relevant information may be obtained therein. The section provides as follows:

“54 Entering of premises for purposes of obtaining evidence

(1) Where a police officer in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is upon or in any premises, he may, without warrant, enter the premises for the purpose of interrogating such person and obtaining a statement from him:

Provided that a police officer shall not enter any dwelling in terms of this section without the consent of the occupier thereof.

(2) Where a police officer of such class as the Minister may designate considers on reasonable grounds that it is necessary for the purpose of investigating or detecting an offence to examine any books, documents or other records, he may, without warrant -

(a) Enter any premises for the purpose of examining such books, documents or other records; and

(b) Require from any person thereupon or therein the production then and there of such books, documents or other records which are or have been upon or in the premises or in the custody or under the control of any person by whom the premises are occupied or used; and may examine and make extracts from and copies of all such books, documents and other records:

Provided that a police officer shall not enter any dwelling in terms of this subsection without the consent of the occupier thereof.”

The above section quite clearly authorizes the police to obtain, without warrant, the required information not only upon reasonable suspicion that a crime has been committed but also for purposes of detecting crime.

Out of an abundance of caution, the police, in an ex parte application, also obtained a search warrant in terms of section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07] as read with section 50 of the Criminal Procedure and Evidence Act [Chapter 9:07] authorizing them to enter the fourth respondent's premises and seize the required information in the form of records pertaining to the call history of the three cell phone lines in question.

The applicant has since appealed to this court for an order setting aside the search warrant. He has now filed an urgent chamber application seeking to interdict the first, second and third respondents from accessing any information concerning his calls and the fourth respondent from providing the required information.

In determining the application, the court is duty bound to determine the applicant's prospects of success on appeal. The first hurdle which the applicant has to surmount is whether or not the search warrant is appealable.

It is trite that the Magistrate's Court is a creature of statute. It has no inherent jurisdiction. It thus can only do that which it is empowered to do by statute as it has no power of its own other than that conferred upon it by statute. The right to appeal against the Magistrates' Court decision in criminal proceedings is conferred upon it under section 60 of the Magistrates Court Act [Chapter 7:10] which provides that:

“60 Appeal from magistrates courts in criminal cases

(1) Subject to this section and any other enactment, any person who is convicted of any offence by a court may appeal to the High Court against the conviction and additionally, or alternatively, any sentence or order of the court following upon the conviction?

(2) …,.

(3) A person who is convicted of any offence by a court and who is discharged after conviction in terms of any provision of the Criminal Procedure and Evidence Act [Chapter 9:07] may appeal against such conviction to the High Court.

(4) Any person who has been convicted by a court but sentenced by a judge of the High Court in terms of Part IX of the Criminal Procedure and Evidence Act [Chapter 9:07] may appeal to the Supreme Court against such conviction or any sentence imposed upon him or any order of court following upon such sentence as though he had been both convicted and sentenced in the High Court.”

It is self-evident that the Magistrates Court Act [Chapter 7:10] makes no provision for an appeal to any court against the issuance of a search warrant in terms of section 54 of the Criminal Procedure and Evidence Act [Chapter 9:07]. I have also perused the Criminal Procedure and Evidence Act [Chapter 9:07] and I am satisfied that it makes no provision for an appeal against a search warrant issued by a magistrate in terms of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 60 of the High Court Act [Chapter 7:06] limits the right of appeal in criminal cases from the Magistrates Court to those aggrieved by conviction or sentence or where the right of appeal to the High Court has been conferred by statute. Despite being specifically asked, counsel for the applicant has been unable to point to any statutory provision which entitles an aggrieved person to appeal to the High Court against the issuing of a search warrant by a magistrate.

The police officer who attended the scene, Constable Mathe, did a shoddy job indeed.

The Investigating Officer, Detective Assistant Inspector Albert Zhou, told the court that Accused 1 was arrested by members of the public after he had been involved in yet another robbery at Tashas Supermarket in Lobengula on 18 February 2009. Members of the public had administered instant mob justice by assaulting him severely until he was unconscious. When the accused was handed over to him he was semi-conscious with a swollen face – his eyes opening slightly.

Sgt Tennyson Ncube, who at the time was stationed at Mayobodo ZRP Police Station, expressed familiarity with all the accused persons and got involved with this case on 3 June 2004 following a report of this murder case.

The witness noted the wounds on the deceased at the village. These wounds were consistent with the wounds as outlined in the post mortem report, exhibit 2, and it was this officer who conveyed the deceased's remains to Brunapeg Hospital. The witness told the court that, in his view, the deceased had been severely assaulted with, inter alia, an axe, owing to the pronounced openings on the deceased's body. The witness also confirmed that there was evidence of multiple stab wounds on the deceased. It was as a result of his delivery of the deceased's remains that exhibit two was compiled….,.

The two remaining witnesses called by the State were Detective Sgt Ndebele and Detective Sgt Charuma and these were called as key witnesses in the trial within a trial which were meant to determine the admissibility or otherwise of the various warned and cautioned statements by the four accused persons.

After a protracted enquiry, the statements were admitted as part of the State evidence.

The second State witness was Detective Inspector Collen Sigauke who is a member of the Zimbabwe Republic Police.

He told the court that this case was first treated as a road traffic accident until the police received a post mortem report. During the investigation, the police gathered information establishing that the deceased had been last seen with Natally Natasha Sibanda, who, when questioned, implicated the accused. Through further investigation, the accused led the police to one Enock Chamunorwa to who he had pledged the deceased's mobile phone for goods he had purchased from him. The phone, exhibit 4, was recovered from Enock Chamunorwa. The phone contained the photograph of Natally Natasha Sibanda taken by the deceased on the day he was murdered as testified by Natally Natasha Sibanda. Detective Inspector Collen Sigauke said he would never have known that the phone had been pledged to Enock Chamunorwa if the accused had not told him. It was his evidence that the accused was aware that he had been implicated by Natally Natasha Sibanda. The accused incriminated her a day after his arrest. He said she had been part of the plan to rob and kill the deceased. He alleged that she was the one who had tipped him that the deceased had a substantial amount of money on him. He never, at any stage, told the witness that Natally Natasha Sibanda was his girlfriend.

Magumise Mugwagwa

He is the police officer who attended the scene and recovered exhibit 13 at Ndukwana's homestead.  He also recovered the deceased's body at Mhonda's homestead near Mukombagumi Business Centre where it had been left by Ndukwana and others. He had then ferried the body to Gokwe Hospital mortuary.

The last State witnesses who gave evidence are two police details, Constable Peter Matope, the arresting detail, and the Investigating Officer, Detective Sergeant George Pfidza.

The evidence of Constable Peter Matope is that on 28 December 2010 he arrested the accused who was carrying a bag which he discovered contained a ZTE cellphone, a knife, and a car radio (probably the face cover of the radio), brown shoes and khaki shorts. From the list of the property stated only the bag was relevant to Count 1, and the car radio cover and knife, relevant to Count 5, are material. It was never established on the record who the owner or owners of the ZTE cell phone, the khaki shorts and brown shoes were. Constable Peter Matope said the accused, at the time of arrest, claimed that all the property in his possession was his. He said he took the accused to the police station and complainant Moses Matibvu, in Count 5, arrived reporting the theft. He immediately showed him the property and Moses Matibvu identified the car radio cover and knife as his property.

All what the accused said in cross examining Constable Peter Matope is that he was never in possession of the bag and the property therein but that the police planted it on him. This was dismissed as false by the witness.

The evidence of Constable Peter Matope only links to Count 1 and 5.

The evidence of Detective Sergeant George Pfidza, who is the Investigating Officer, is that the accused confessed to the commission of the offence in the company of the accomplice who is at large. He said the accused led him to complainant Methulisi Dube's house in Count 2 where he made indications although the stolen property was not recovered. He said the accused again led him to the complainant in Count 3, Mila Ziwakanya's house and made indications relating to the commission of an offence involving a Nokia 1208 cell phone. No further evidence was led from him in respect of Count 1, 4 and 5 as regards the nature of investigations he carried out. He was not asked to point out the specific investigations he made linking the accused to each of the 5 counts.

Although Constable Trymore Bobo said he did not notice anything unusual at the crime scene no specimen were taken from the deceased to establish whether she had had sexual intercourse.

It is also not in dispute that throughout the investigations that followed, there was no attempt by the Investigating Officer to record a warned and cautioned statement from the accused person. 

It was important, in the court's view, for the Investigating Officer to have recorded a warned and cautioned statement from the accused in order to investigate his averments, and, if need be, to get evidence that would have countered the stance taken by the accused. As it is, from the time the accused person was arrested up until his trial was conducted in this court, the police did not seem to know the defence which the accused was going to proffer to the charge. 

By not exploiting and closing this gap, the State case remained heavily compromised.

We are satisfied that the Investigating Officer conducted himself in a professional manner in his interactions with the accused.

Where an informant gives information to the police involving the commission of an offence, the police are only expected to act on the information and cause an arrest where they are satisfied that the information given is reliable and discloses that a suspect has committed the offence. The persons effecting the arrest should first be satisfied that there is reasonable suspicion of commission of an offence before they effect an arrest….,.

It is not good enough to arrest a suspect purely on the basis that a finger has been pointed at him and based on simply an indication from formation that a suspect was linked to a syndicate in the habit of committing offences of a similar nature in the neighbourhood.

In order to establish the lawfulness of an arrest without a warrant, the onus lies upon the defendant to show probable cause or reasonable suspicion. In exercising the power of arrest, he must act as an ordinary honest man would act, on suspicions which have a reasonable basis and not merely on wild suspicion. See Rosseau v Boshoff 1945 CPD 135…,.

In other words, the arrestor must act on such circumstances as would ordinarily lead a reasonable man to form the suspicion that the arrestee has committed an offence. It is not the function of the police to arrest at large and to use the interrogatory process in order to determine whom to charge. See Feldman v Minister of Home Affairs 1992 (2) ZLR 304 (S)…,; Botha v Zvada & Another 1997 (1) ZLR 415 (S)…,.

Then there was the Investigating Officer, detective Lection Sibanda, who did not see the wisdom of even extracting finger prints from anything that could shed light on who the perpetrator was; content only to rough up the accused's family members, obtain statements from them incriminating the accused person and then spend the entire period of 6 years 8 months, when the accused was a fugitive from justice, waiting for him to surrender himself even after the accused had contacted him using a South African number and his relatives were available all the time to point out his address in that country.

Whatever happened to Interpol and extradition of accused persons?

It has been argued by the appellant that the police orchestrated a trap.

GARDNER & LANSDOM, South African Criminal Law & Procedure Vol 1, 6^th Edition…, define a 'trap' as:

“A person who, with a view of securing a conviction of another, proposes certain criminal conduct to him, and ostensibly takes part therein. In other words, he created the occasion for someone else to commit the offence.”

In Musuna v The State HB112-07, BERE J dealt with a similar situation where the facts are strikingly similar to the present matter. The accused, a police officer, had solicited for a bribe from a Congolese national who reported the matter to the police and a trap was set. The learned judge distinguished the types of police traps and held that evidence from a trap could only be unlawful or inadmissible if the trap was intended for the express purpose of inducing an accused to commit a crime he would ordinarily not have committed.

See also the case of S v Azov 1974 (1) SA 808 (T)…, where the judge observed the following:

“This court is not concerned with the approach on traps, whether it is a procedure that is to be lauded or disapproved of. The fact is that it is not unlawful to have set the trap; not do I accept the proposition that traps must necessarily be treated in the manner that has been suggested in the appellant's heads of argument. It seems to me that traps are really of three kinds. There is the trap which most of us dislike so much where a traffic inspector puts a cord across the road and when you go over it too fast he traps you. There, the traffic inspector has done nothing really to entice you to exceed the speed limit; he is merely set about trapping you…,. There is no reason why a trap of that kind should be treated with the disapproval which is suggested in general about traps.

Secondly, we have the sort of trap that we have where the accused person is not enticed into doing something wrong. She is suspected of selling liquor and she has liquor in her possession. All the trap does is to go and buy it from her. He did not place the liquor in her possession and he did not induce or entice her to keep liquor illegally; all he did was to trap her into selling it. This is the second type of trapping.

Then the third type of trap that you have in gold and diamond trapping cases where you bring the gold or diamonds to the person and invite him to buy it. That sort of trap is very dangerous and open to abuse, and the courts have on numerous occasions expressed their disapproval of it, more particularly because the traps used in such case are often persons of low repute, not necessarily police officers.

The distinction must be drawn and borne in mind.

In the present, this woman was not enticed or induced to start trading in liquor; she was suspected, presumably on reasonable grounds, of trading in liquor and all that was done was to go and by some beer from her – to trap her in that fashion. The police used three policeman to trap her and whilst all evidence produced before a court of law must be treated with caution and care must be exercised in evaluating it, there is no particular reason why these three policemen should be treated as if they were villain or doing something unlawful.”

On the facts of the present case, the police obtained information that the appellant had demanded a bribe - which in itself is unlawful. The police then moved in to arrest the appellant after he had received the money. He gave a false reason for being in possession of the money. He alleged, soon after his arrest, that the money was a refund for the purchase of a Stand. That was his initial defence. This is not an insignificant issue because in this appeal the appellant is arguing that he was trapped and that the setting up of the trap violated his constitutional rights. In his lengthy Defence Outline, the appellant denied that he ever solicited or received any money from the complainant under any circumstances. This seems to give credence to the position that the raising of the constitutionality of the trap came as an afterthought.

I now turn to consider whether there is merit in the argument that the conduct of the police was inconsistant with section 68(1) of the Constitution. The relevant section provides that:

“(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Further, section 70(3) of the Constitution provides as follows:

“(3) In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair one would otherwise be determined to the administration of justice or the public interest.”

I have no doubt in my mind that the constitutional issues raised by the appellant were merely raised as a red herring. A basic tenant of Constitutional Law is that not all rights are absolute but their restriction has to be proportionate to the means that it seeks to achieve. The detection of crime, more particularly corrupt practices, must be achieved not by luring suspects into committing offences but setting up of lawful traps that only serve to prove that a crime has indeed been committed. I am of the view that the constitutional issues raised are of no moment and that they are being raised merely to obfuscate the issues. There is no evidence on record that the police orchestrated the trap or initiated it….,.

In the result, the appeal against conviction and sentence is dismissed.

In my view, this matter was properly investigated, leading to the arrest of the accused.

Also pointed out in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC) is that all arrests are prima facie illegal and the onus is upon the person who effected it to prove that the arrest was legally justified.

We are inclined to believe that the manner this matter was investigated leaves a lot to be desired.

Fleeing from a scene of crime may be interpreted as admission, by conduct, as the guilty are always afraid.

In casu, the appellant did not…, give specific details of his alleged alibi to allow for investigation thereof. He only purported to do so after he went on the witness stand…,.

There is no evidence that the appellant gave this full story from the very beginning, i.e. from the time of his arrest. The police could not have been expected to check the truthfulness of a story that was not furnished to them.

The only issue counsel for the accused took issue with when he cross-examined Cst Chigudu relates to the language the accused used during the investigations and indications. Cst Chigudu said although the accused was conversant with Venda language he also fully understands and speaks Shona.

The applicant argued that the rape reports were just an elaborate scheme by the complainant and/or her mother to extort money and property from him.

This argument hinged on the fact that it was common cause that when the applicant had been arrested, both his nucleus and extended families had motivated several meetings with Sheena, her mother, and stepfather to arrange a settlement out of court. It seemed that the basic approach at those meetings had been that in return for payment of a sum of money and/or delivery of certain items of property to Sheena, the complainant would withdraw the rape charges. Several figures and items of property were mentioned. They included amounts of R100,000= and $30,000=; six live cows; a motor vehicle and a house.

Part of the defence evidence on the alleged extortion was a transcription of a telephone discussion between the applicant and the complainant's step-grandfather, one Peddy Young, sometime in November 2016. The applicant had secretly recorded it on the advice of his lawyers. The transcription seemed to confirm the narrative that there had been some arrangement for such a trade-off...,.

At trial, the applicant and his son claimed the alibi defence had been brought to the attention of the police during interrogation.

The court disbelieved them….,.

Counsel for the applicant maintained that the alibi defence was raised in the bail application and that therefore the State ought to have investigated it from then on. He specifically drew my attention to the bail statement in September 2016.

But, I perceive a number of problems;

Firstly, all that appears in that bail statement relevant to the point is this:

“16. In respect of the allegations of the 3^rd of September 2016, Applicant denies ever having seen the Complainant on the day in question. At the material time of the alleged rape, he was with his family, wife and son, who had just arrived from South Africa that morning.”

Secondly, other than interviewing the applicant's wife and son to check the purported alibi, who obviously would stand by the applicant, as they predictably did in court, it is difficult to understand what sort of investigations the police needed to have carried out. This alibi was not like the applicant was saying he had been out of the country or out of Masvingo town. He was around at the material time. All he was saying was that he had not gone nine kilometres out of town where the rape is alleged to have happened.

The police conduct in this matter deserves censure.

Why did the police lie to Dr Chaibva that the now deceased had died at home and fail to disclose to him the sequence of events? Clearly, the investigations in this matter were not only poorly done - but done in an unprofessional and dishonest manner. The motive is difficult to understand.

Regarding the trap, the court was of the view that the appellant's case was not one where it could be said that, but for the trap, the accused would not have committed the offence. It thus confirmed the finding by the trial court that there was other evidence, apart from the trap, that proved beyond a reasonable doubt that the appellant had committed the offence.

The appellant appeals to this court against both conviction and sentence. In his notice and grounds of appeal the appellant advances five grounds of appeal;

(i)…,.

(ii)…,.

(iii) The third ground bemoaned that failure to prove that there was no formal approval for a police trap which was employed to arrest the appellant.

(iv) The fourth ground criticised the alleged gross violations of police Standing Orders contained in the Standing Order Volume 1 Manual.

(v) The final ground was that the court a quo failed to consider that the appellant's case was highly probable and therefore showed that no offence was committed….,.

The remaining three grounds of appeal relate to the defective trap set by the arresting police details.

Whilst the absence of the authority to trap the accused may be a cause for concern, the overall impression given by the evidence exclude any perception of impropriety on the part of the State witnesses who went about the process of investigating the validity of the complaint by a suspect that the police officer involved was demanding a bribe.

The Police General Headquarters gave the green light to the investigating detail to entrap the appellant so as to test the credibility of allegations raised by the complaint. Indeed, the appellant received the money from a suspect who was under investigation by the same police station where the appellant held a senior rank.

The courts have long recognised and distinguished between trapping which is acceptable and trapping which is not. For example, if the trapping was such that it promoted the commission of the offence by someone who would not otherwise have committed it, that would have required a stricter approach to the evidence of entrapment. This is not a case where it could be said that bit for the trap, the appellant would not have committed the offence. The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provision of section 170 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This, the magistrate correctly found he failed to do.

In the event the appeal against conviction fails.