Criminal
Review
MOYO
J:
In
this matter the accused appeared before the magistrate sitting at
Beitbridge charged with three counts of robbery in contravention of
section 126 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. He was convicted after a full trial.
He
was sentenced to 4 years imprisonment with 1 year imprisonment
suspended on the usual conditions.
The
facts of the matter are that on 11 March 2016 at around 16:00 hours
and at Limpopo River, Beitbridge, the complainants were trying to
cross the river going to the Republic of South Africa. The
complainants met the accused person who was in the company of four
others who are still at large. The accused persons wielded knives and
threatened the complainants to surrender all the cash and valuables
they had. The accused forcibly took R450 from complainant No.1; a
Nokia E63 cellphone from complainant No.2; 600 rands from the third
complainant; Nokia Asha 201 cellphone from the fourth complainant.
On
4 March 2016, the accused person was apprehended by the complainants
at Limpopo Dam after they positively identified him facially.
In
his defence to the charges, the accused person told the court that on
11 March 2016 he met some Somalians who wanted to cross illegally to
the Republic of South Africa. He took them to the river. He met
Shorty at Total garage. He was with two of his colleagues, with their
(Shorty and his colleagues) assistance, they took the Somalians to
the river. The person who gave the accused person this task promised
to pay him his dues once the Somalians were in the Republic of South
Africa. After crossing the river, the accused person handed the
Somalians to the person and the person paid him, he then shared the
money with the complainants and they complained that the money was
not enough. The accused and the complainants then quarreled over the
issue. Accused then fled. When he went back to the river at a later
date to check on the water levels he then met the complainants and
they demanded their money. He handed them the money he had and they
said it was too little. They severely assaulted him. Accused then
requested that they take him to his uncle's place so that he could
give them the money they wanted. He said he took them to his uncle's
place deliberately so that he could get help.
At
his uncle's place, he demanded to know why they had assaulted him.
They offered to take him to the hospital. He threatened to report
them for assault, they then tied him and took him to the police
station.
At
the police station accused explained that they had assaulted him and
they alleged that he had robbed them. He was then arrested.
The
learned magistrate faced with these two versions from both the State
and the accused, simply chooses in her judgment to ignore the version
as given by the accused person and adopts the State version. She does
not even show why the accused's version should be disbelieved in
favour of the version by the State.
The
judgment in essence is not reasoned at all, for proper reasoning of a
judgment involves the sifting of facts and the elimination of chaff
and the justification by the court as to why it finds one version
true as opposed to the other.
By
the way, the accused person does not even have the onus to prove the
truthfulness of his defence. He just needs to come up with a version
that meets the test which is that it must be reasonably possibly
true, cannot be dismissed as being unreasonable, impossible or
untrue.
I
do not hold the view that this can be said of the accused's
version.
If
an accused person gives some explanation in his defence, he must be
acquitted even if the court is not satisfied that his or her
explanation is true if, nonetheless, the explanation might reasonably
be true. Refer to the Judges Handbook for Criminal Cases by Professor
G. Feltoe 5th edition 2009 at page 80.
In
the case of S v Makanyanga 1996 (2) ZLR 231 the court summed up this
issue as follows:
“A
conviction cannot possibly be sustained unless the judicial officer
entertains a belief in the truth of the criminal complaint, but the
fact that such credence is given to the testimony of the complainant,
does not mean that conviction must necessarily ensue. Similarly, the
mere failure of the accused to win the faith of the bench does not
disqualify him from an acquittal. Proof beyond reasonable doubt
demands more than that a complainant be believed and an accused
disbelieved - it demands that a defence succeeds wherever it appears
reasonably possible that it might be true.”
The
accused person in this matter gives a sound version of what
transpired between him and the complainants, the deal in assisting
people cross the river to the Republic of South Africa, how the deal
turned sour when the complainants were disgruntled with the issue of
sharing the money, how he then fled, and how he then met them at a
later date resulting in him being assaulted by them, him promising to
give them money at his uncle's house and him threatening to report
the assault to the police resulting in the complainants trumping up
the robbery charges. The court could not dismiss such an explanation
for there is absolutely no ground in the court record allowing such a
dismissal which is why the learned magistrate avoids that issue
altogether.
The
learned magistrate simply preferred to regurgitate the version of
events as given by the State witness and did not show why she prefers
it is against the accused's version.
The
reason for this is simple.
The
accused's version would be very difficult to throw away if she were
to assess it in accordance with the principles as given in our law,
it simply could not be dismissed as a non-event.
In
our law, the court cannot simply choose to adopt the version of the
State witnesses in its judgment without giving reasons why it is
choosing to do so, and also without giving reasons why the accused's
version is being thrown away by it.
It
is for these reasons that I find that the conviction of the accused
person is unsafe, it cannot be held that the State indeed proved its
case beyond a reasonable doubt as against the accused person, for his
version stands in the court record and creates a doubt in the State
case which entitles him to be set free as the allegations against him
have not passed the yardstick of proof beyond a reasonable doubt.
I
cannot as a result of these findings certify these proceedings as
being in accordance with real and substantial justice. I accordingly
make the following order:
(1)
The conviction and sentence by the court a quo are quashed.
(2)
If the accused had paid any restitution he is entitled to be refunded
his monies by the Clerk of Court.
Takuva
J agrees…………………………………
