The appellant, Maxwell Marangwanda, aged 56 years, was charged and convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where it is alleged, that, on 29 August 2018, at Nyachityu Business Centre, Marange, Mutare, the appellant hit Patson Chakawanda twice on ...
The appellant, Maxwell Marangwanda, aged 56 years, was charged and convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where it is alleged, that, on 29 August 2018, at Nyachityu Business Centre, Marange, Mutare, the appellant hit Patson Chakawanda twice on his arms with an iron bar.
On 27 February 2019, the appellant was sentenced to 12 months imprisonment of which 3 months imprisonment was suspended for 2 years on condition accused does not during that period commit any offence involving violence for which he is sentenced to imprisonment without the option of a fine, leaving an effective prison term of 9 months.
On 5 March 2019, the appellant noted an appeal against both conviction and sentence and outlined the following as grounds of appeal:
“1. AD CONVICTION
(a) The learned trial Magistrate erred at law and facts in convicting the appellant when the evidence led by the State was totally inadequate for the purposes of securing a conviction. The conviction was based on a single witness, the complainant, who was not credible. This is because the other State witnesses did not corroborate the evidence of the complainant.
(b) The learned trial Magistrate misdirected herself by accepting the evidence of the complainant which was not corroborated by the evidence of the other two witnesses.
(c) The learned Magistrate erred and misdirected herself by putting onus on the appellant when all that was required of appellant was to offer an explanation which is possibly true.
(d) The learned Magistrate erred and misdirected herself in law and fact in mis-interpreting the medical affidavit and reaching a conclusion that the injuries were as a result of an assault when they could have been caused by complainant falling as he was drunk.
(e) The learned Magistrate erred and misdirected herself in failing to properly appraise the credibility and testimony of appellant and giving reasons why such evidence was rejected.
(f) The learned Magistrate erred and misdirected herself in making a finding of facts that the State had discharged its onus of proving the essential elements of the crime beyond reasonable doubt as is required by the law.
2. AD SENTENCE
(i) The learned Magistrate erred in imposing a sentence that is disturbingly disproportionate to the gravity of the crime; that is to say, the sentence is manifestly excessive and so harsh as to cause a sense of shock.
(ii) The learned Magistrate misdirected herself by over-emphasising the appellant's crime and under estimating the person, character, and circumstances of the crime resulting in the miscarriage of justice.
(iii) The learned Magistrate misdirected herself by failing to consider non-custodial forms of punishment like a wholly suspended sentence, a fine, community service and/or a combination of the above. Moreso the penal provision provides for a fine.
(iv) The learned Magistrate misdirected herself by failing to take into account the mitigation by appellant and to indicate what portion of the sentence was modestly reduced as a result of these mitigatory circumstances.”
EVIDENCE LED ON BEHALF OF THE STATE
The complainant, Patson Chakawanda, told the trial court that he had known the appellant since 1995. He knew the reason why the appellant was in court - the appellant had assaulted him on 29 August 2018.
On that date, the complainant was coming from Mutare when he decided to go to the appellant's shop to buy opaque beer, commonly called 'supa'. Upon arrival, he shook the appellant's gate; there was no response. The witness waited assuming that the appellant had heard the shaking. The appellant came from behind, did not ask what the complainant wanted, but then struck the complainant on the arm.
The complainant ventured to ask the appellant why he was assaulting him; the appellant did not respond but went on to hit the other arm.
The complainant screamed, and, because of the assault, fainted.
In that condition, the complainant regained consciousness whilst he was then by a fowl run. He was in pain.
Upon gaining consciousness, he recalled the appellant summoning Lovemore Nyadongo to come to the scene and check whether he could identify the complainant.
Lovemore Nyadongo brought a torch and positively identified the complainant as his uncle.
The appellant told Lovemore Nyadongo that the complainant intended to steal chickens, but, Lovemore Nyadongo disbelieved the appellant's allegation indicating that the complainant could not possibly steal, since, as a pensioner, he had his own money.
The appellant went on to call another person, his neighbour, who obliged to the appellant's call.
The appellant went on to tell the neighbour that he (appellant) found the complainant surrounded by dogs and that the complainant tried to jump a wire that was about 3 metres. The neighbour called by the appellant pointed out, that, the complainant was in pain and needed hospital attention, but, the complainant did not accede to the issue of hospital.
The appellant went on to call yet another neighbour who heeded to the appellant's call. Upon that third neighbour's arrival, the appellant explained to the neighbour, that, he had found the complainant in his fowl run.
The complainant was then taken to Bocha Clinic.
Under cross-examination, he told the court that he arrived at the appellant's place at around 8-9pm. The complainant told the court, that, he was not intoxicated; he had taken only one 'supa'. He further testified, that, he could not have been found by the appellant at the fowl run for that would have meant that he would have jumped the perimeter fence, coupled with his age (74 years), he would not have scaled the fence.
He did not see what hit his arm but he believed it was a metal bar.
As far as he recalled, he fell unconscious at the gate and the appellant lifted him up to the fowl run. He did not pace up and down in the appellant's premises; he only did so when he regained consciousness and did so out of pain.
One clear observation can be deduced from the complainant's evidence. He was hit from behind by a hard object and screamed.
The appellant did not leave the scene thereafter. He then summoned three of his neighbours to the scene, and, Lovemore Nyadongo positively identified the complainant. When the second neighbour arrived at the scene, he observed that the complainant was in pain and needed medical attention.
There is no break on the chain of events and the accused did not, at all the stages, explain how the complainant had sustained the pain observed by one of the neighbours.
He deliberately concealed the information.
The second witness called by the State was Lovemore Nyadongo.
He knows both the appellant and the complainant. On 29 August 2018, he was woken up by his wife after hearing someone screaming. He took a torch and went where the cry was coming from. He heard the appellant calling out whether it was him and he confirmed. He was told by the appellant that the appellant had caught someone at the fowl run and had entered his yard.
The witness jumped the wire to gain entrance and the wire he jumped is one and half metres high.
Upon arrival by the witness, he saw the appellant, his worker, and wife; he was asked whether he knew the complainant - he knew him.
Of importance, when Lovemore Nyadongo arrived at the scene, he saw that the complainant was severely injured on his hands….,.
Lovemore Nyadongo asked the appellant how the complainant sustained a fracture on his hands, he was told by the appellant: “I saw this guy jumping wire and had found him surrounded by dogs and upon trying to jump again he then fell.”…,.
Lovemore Nyadongo did not perceive any dogs barking but heard cry screams.
The appellant indicated to the witness that he wished to call his neighbour, Mr Mutongo, to come and see the complainant.
Later, the appellant left the witness.
Meanwhile, the witness saw the complainant crying, walked towards the witness homestead, he fell in a pit. The witness lifted him from the pit; the complainant could not help himself, he was in a confused state.
Under cross-examination by the defence, he reiterated, that, when he was called to the scene, the complainant had sustained a broken arm.
After the examination of the complainant by a medical doctor, he then learnt that both hands had been fractured.
To the witness, the complainant was average drunk.
He only saw footprints, at a later stage, belonging to the complainant and they were both inside and outside the appellant's residence.
Felix Majaya, a police detail, was called by the State.
The piece of evidence crucial to this appeal, from this witness, is what he was told by the appellant.
The appellant told the police, that, the complainant had been robbed and he went on to get into the appellant's fence….,.
The appellant later told the police, that, the complainant wanted to steal chickens.
The witness told the court a quo, that, the appellant gave different versions.
The appellant testified.
He is 58 years old. He saw the complainant at 9pm behind his fowl run; he was the first person to see the complainant. When he saw the complainant, he woke up his employee, Clever Nyahotsi.
Whilst he was with Clever Nyahotsi, the complainant jumped into the paddock, Clever went towards the complainant and had dogs. The appellant went where Clever and the complainant were and asked the complainant to sit down.
He saw Lovemore Nyadongo coming and went where the complainant was seated.
Lovemore Nyadongo confirmed to the appellant that the complainant was his uncle.
He decided to call another neighbour, and, when he returned he found Clever Nyahotsi and the complainant seated inside the yard.
When the appellant came to the place where the complainant was seated, he heard, for the first time, from Godfrey, that, his hands had been injured.
It was Godfrey who proposed to the appellant that they should go to the hospital because the complainant was crying.
The footprints did not lead to the main gate, he said, but behind his house.
He did not hear any scream from the complainant. He does not know why the complainant would allege that he assaulted him. He had woken up to protect his chickens and thought that the complainant was a thief.
This is the evidence which was presented before the court a quo. This is the evidence which the appellant impugns saying it was not adequate to prove the State case beyond a reasonable doubt.
It is not in dispute that the court a quo was faced with a single witness - the complainant.
In terms of section 269 of the Criminal Procedure and Evidence Act, it is competent to convict an accused on the evidence of a single witness.
See also S v Tsvangirai & Ors 2003 (2) ZLR 88 (H).
What is important in such a scenario is for the trial court to be alive to the fact, that, where there is only one single witness to the crime, special evidential rules apply.
What the trial court should try to do is to guard against the obvious risk of convicting the accused on the basis of uncorroborated evidence of a single witness. The single witness should therefore be credible in all respects.
What matters at the end of the day is the quality rather than the quantity of evidence led: see S v Zvimbovora 1992 (1) ZLR 41 (S); S v Mutandi 1996 (1) ZLR 367 (H); R v Mokoena 1956 (3) SA 81 (A); and S v Magodo 2017 (1) ZLR 294.
In casu, the court a quo did not critically analyse this aspect of a single witness. That was a misdirection - though it was not fatal to the proceedings.
It accepted the State's evidence and rejected the defence's version.
The appellant's conduct, on the date in question, portrays a guilty mind. He gave various versions to what had caused the fractures on the complainant's arms.
To the police, he mentioned that the complainant had been robbed; on one occasion he told the court a quo that the complainant jumped over high fences and that could have led to his fracture. Yet, on the other hand, he wanted to convince the court that the complainant had fallen into a pit.
The complainant gave a coherent un-impeached chronicle of what happened; he wanted a 'supa' and went to the appellant's property. The appellant might have retired, and, when he heard the shaking of the gate, he woke up and found the complainant at his premises; he hit him thinking that he was a thief and intruder.
When Lovemore Nyadongo arrived and dispelled the fear of the complainant being a thief, the appellant decided to create a way of trying to find some other causes of injury other than his assault.
Lovemore Nyadongo found the complainant injured already, well before the complainant fell into the pit, which event occurred after the arrival of Nyadongo.
Throughout the night, the appellant stated he saw the complainant first and tracked his movement whilst in the appellant's yard. However, he could not tell the court exactly at what point the complainant sustained the injuries.
Although the learned trial magistrate failed to pinpoint the cautious approach in single witnesses cases, he nevertheless, properly in my view, did an appropriate evaluation of the State witnesses and arrived at an appropriate decision.
I am convinced the State managed to prove its case beyond reasonable doubt and the conviction of the appellant, by the court a quo, is unassailable.
The appeal against conviction has no merit.
