Theft, Shoplifting and the Doctrine of Recent Possession

HH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE
Ruled By: ZIMBA-DUBE J and BHUNU J

The appellant appeared before a Mvurwi magistrate facing a theft of trust property charge in terms of section 113 of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. The State allegations were that the appellant received US$2,440= from his employer for purposes of paying wages for contract workers at Tel One Mvurwi Depot. Instead of ...

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

S v Muketiwa Munemo In Count One, the convicted person tendered a limited plea admitting that he stole fewer items than had been alleged by the State. The State accepted the limited plea without ascertaining the value of the stolen property.

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

The crime of theft is enacted by section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which provides as follows:“(1) Any person who takes property capable of being stolen – (a) Knowing that another person is entitled to own, possess, or control, the property, or realizing that there is a real risk, ...

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

It is incompetent to charge an accused person for unlawful entry and theft, as defined by Section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], as that section does not create a combined offence of unlawful entry and theft.It merely provides for a stiffer punishment if the unlawful entry is accompanied by the ...

It merely provides for a stiffer punishment if the unlawful entry is accompanied by the stealing of property from the premises. The elements of theft need not be canvassed as they would for the purposes of securing a conviction for theft. The stealing of property can merely be mentioned in the agreed facts, or the State outline, or in the prosecutor's address in aggravation. If the convicted person admits them at any of these stages, then he can be sentenced in terms of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The canvassing of theft elements will, however, not initiate the conviction as it a relevant fact in passing sentence, as long it remains clear that section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not create an offence of unlawful entry and theft but provides that it should be used as an aggravating factor.

The value of the stolen property becomes a standard for the sentence to be imposed, and justifies a stiffer sentence of imprisonment if a fine is not an appropriate sentence. A reading of section 131(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] confirms that the various forms of unlawful entry are aggravated by the various factors there-mentioned, while the offence created, and for which punishment is provided, is unlawful entry, and nothing else.

I am, therefore, satisfied that the convicted persons in the cases S v Standrech Chirinda, S v Muketiwa Munemo, and S v Langton Murozvi, were improperly convicted of theft on charges which did not charge them with the contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Even if reference to theft is made in the charge, and agreed facts, the accused person cannot be charged of a combined crime of unlawful entry and theft as that crime does not exist.

HB52-09 : THE STATE vs LAMECK MAROWA
Ruled By: CHEDA J and KAMOCHA J

This is a review judgment. The facts of this matter are that the accused, who is twenty six years of age, was charged with theft of ten litres of cooking oil and four kilogrammes of white sugar, the property of Thornhill Airbase, Gweru, who are his employers. The property was valued at $1.8 million and all was ...

HB98-09 : MOSES NYONI vs THE STATE
Ruled By: KAMOCHA J and NDOU J

As already alluded to in this judgment, only R20,000= worth of property was recovered out of R70,972=64. When the trial court was canvassing the essential elements with the appellant, he revealed that the recovered property had been recovered from the people who had bough it. They had sold the property to those people. His explanation for committing the crime was ...

HH09-10 : THE STATE vs DAVID CHIGANGO
Ruled By: BERE J and BHUNU J

The accused in this matter pleaded to and was convicted of the offence of contravening section 113(1)(a)(b) of the Criminal Law (Codification and Reform ) Act [Chapter 9:23]. Two issues have exercised my mind in this matter. The manner in which the conviction itself was secured, as well as the sentencing approach adopted in this matter are ...

HB15-11 : ZWELITHINI DLAMINI and SHERMAN CARTERS vs THE STATE
Ruled By: NDOU J and KAMOCHA J

The appellants were convicted by a Bulawayo Regional Magistrate of theft of 600 car tubes from their employer as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were both convicted on their own pleas of guilty.

HB93-11 : KASIKAYI MUNATSI vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

This is an appeal against a sentence imposed by the Regional Court sitting in Bulawayo on 20 January 2011. The appellant pleaded not guilty to theft of a motor vehicle as defined in section 113(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that during the early hours of New Year's ...

HB132-11 : THE STATE vs GRESHAM DUBE
Ruled By: KAMOCHA J and NDOU J

The 27 year old accused was charged with theft from a motor vehicle in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; in that on 15 August 2011, at around 0100 hours, he stole a Nokia cellphone from a car parked at Number 22 Phakamani, Plumtree. The car ...

HB19-10 : THANDO DUBE vs THE STATE
Ruled By: CHEDA J and NDOU J

On the fateful day i.e. 10 December 2006, in the evening, the appellant was executing his duties in the Bulawayo-Victoria Falls passenger train. In Count 1 he was paid $2,000= by one Tapiwa Nyoni being fare to travel from Bulawayo to Hwange. The appellant pocketed the said amount and did not issue a ticket to Tapiwa Nyoni. All this is common cause. In Count 2, on the same date and on the same train journey, the appellant also received $3,000= from a passenger, Tafadzwa Dube, as fare to travel from Bulawayo to Hwange. Likewise, Tafadzwa Dube was not issued with a ticket. In Counts 3 to 5, in the same journey, the appellant was approached by Edna Ncube in the company of Primrose Vandal and Mary Yunda Yunda. All three requested an upgrade from the economy class to first class. From each of the three, the appellant received $4,200= for the upgrade. The appellant directed the three to coach number 2089 i.e a first class compartment. For these three amounts the appellant did not issue tickets and he once more pocketed the cash.

These offences came to light when the ticket-checker requested tickets from the passengers. All the above-mentioned five passengers indicated that they had paid the fares to the appellant and he had not issued them with tickets. From the record of proceedings in the court a quo, it is clear that on the day in question the appellant was acting as “a Train Manager supervising the conductors.” He was the man in charge of the conductors. He, therefore, had the freedom to roam the train in the course of his duties. We can assume that in such capacity he was authorized to collect fares on behalf of the National Railways of Zimbabwe from passengers. State witness, Amon Muzhamba, shed light on the operations of conductors in the National Railways of Zimbabwe trains. The appellant, as Train Manager, was a conductor in the First Class and only supervised conductors in the Economy Class. This, in essence, would mean that the appellant was not supposed to collect fares in Counts 1 and 2. On the other three counts, it would seem the appellant was not supposed to collect the fare for the upgrading from Economy Class to First Class. It would have been the job of the conductor in the Economy Class. This irregular conduct by the appellant does not, per se, mean that the appellant had the necessary mens rea to steal. However, the trial court took this conduct together with non-issuance of tickets by the appellant. The appellant's explanation that he was going to do reconciliations when the train reached its final destination in Victoria Falls does not make sense either. The appellant has been in the employ of the National Railways of Zimbabwe from 1989. It can safely be deducted that with such vast experience he appreciated the need to issue tickets to the passengers paying fares. The court a quo rightly found that he ought to have known that tickets are issued upon receipt of the cash. In any event, the appellant did not even alert the conductors and ticket checkers that he had collected the fares. From the record of proceedings the passengers in Count 1 and 2 were in the process of disembarking when it was discovered that they had not been issued with tickets for the fares that they had paid. When tickets were checked from other passengers the offences in Counts 3 to 5 were also discovered. The court a quo rightly concluded that all these factors taken into account, the State established that the appellant took the fares with dishonest mind. He had no intention of surrendering the cash to the National Railways of Zimbabwe as the passengers would have disembarked without the tickets being issued. In any event how was he going to remember all these fares and the distances they related to when he arrived in Victoria Falls? The only reasonable explanation from the proven facts is that he pocketed the cash with the intention to convert the same into his own use.

There is no possibility of his explanation being true from the proven facts – R v Difford 1937 AD….,. The State proved all the averments necessary to establish his guilt on the five charges of theft – R v Ndhlovu 1945 AD 369.

It is for these reasons that we dismissed the appeal against conviction.

HB89-10 : KUDAKWASHE MUVHAMI vs THE STATE
Ruled By: CHEDA J and MATHONSI J

The appellant was charged with two counts of contravening Section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The first count related to contravening section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged that during the period extending from 21 January 2009 to 24 April 2009, whilst ...

HB102-10 : NOMSA KANYOKA and PRICHARD NDLOVU and PHATHISANI NKALA and ANTHONY MUMBA vs THE STATE
Ruled By: MATHONSI J

The four applicants, along with two others, were charged with theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against them were that on the 19th August 2008, at the 40km peg along the Beitbridge – Masvingo road, they, along with others, had cut down ...

The four applicants, along with two others, were charged with theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations against them were that on the 19^th August 2008, at the 40km peg along the Beitbridge – Masvingo road, they, along with others, had cut down nine (9) wooden electricity poles. After doing that, they stole copper wire measuring 8,1km which they rolled up in preparation for transportation. The four applicants are alleged to have been travelling in a South African registered Toyota Hilux motor vehicle registration number JNT 904GP which was red in colour. At the time of the arrest of the four applicants, they were seated in the said motor vehicle at a laybye 40km from Beitbridge, presumably waiting for their accomplices who were busy cutting and rolling the copper wire a short distance from where the vehicle was parked…..,.

They have now appealed against both conviction and sentence arguing, inter alia, that the conviction was “based on circumstantial evidence that was not corroborated” and that the State case was incredible and full of “material inconsistencies (which) protruded quite glaringly.”

Pending the appeal hearing they have applied for their release on bail and counsel for the applicants strongly argued that the appeal has high prospects of success not only because the State witnesses were unreliable but also that the police must have planted the evidence of the Toyota Hilux's tyre marks at the scene of the crime after they had requested to be shown how the anti-hijack system of the vehicle operates.

On sentence, counsel for the applicants submitted that the trial magistrate failed to arm himself with sufficient pre-sentencing information as a result of which the appeal court will be at large to interfere with the sentence.

Counsel for the respondent contested the application urging me to dismiss it as the evidence led on behalf of the State was overwhelming and that the applicants were properly convicted.

Regarding sentence, counsel for the respondent took the view that the applicants must consider themselves lucky that they were sentenced to eight (8) years imprisonment for theft because the correct charge they should have faced was contravening section 60(A)(3)(b) of the Electricity Act [Chapter 13:19]. Had they been convicted under that provision they would have been sentenced to a mandatory ten (10) years imprisonment.

HB107-10 : THE STATE vs ONISMO NYENGE
Ruled By: MATHONSI J and NDOU J

The accused was convicted of theft as defined in section 113(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Magistrates Court sitting at Western Commonage, Bulawayo on the 18th June 2010.

HB121-10 : THE STATE vs INKEN NYAMAHA
Ruled By: CHEDA J

This is a review judgment. The accused, a fifty (50) year old man, was charged with two counts of contravening section 113(1)(a) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and two counts of contravening section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. During the month of April 2009, ...

HB140-10 : MANDLA MKOMBO vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

The facts are that the appellant was employed by Renown Panel Beaters of Gweru as a security guard. He was guarding the employer's premises on the night of 16 September 2008 alone when he broke into a Mazda 323 motor vehicle parked at the premises and stole a Technic car radio which ...

HH96-13 : CHARLES KATEWERA and PARTSON MUNAKU JONGWE vs THE STATE
Ruled By: MWAYERA J

The applicants were convicted of theft of trust property as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with section 277(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After a protracted trial in the Regional Magistrate Court they were duly convicted and sentenced for the offence…..,. The ...

HH108-13 : KETIAS ZINGUNZI vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

The appellant was arraigned before the Magistrates' Court sitting at Harare on the following charges. Firstly, 66 counts of theft as defined in section 113(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], alternatively, theft as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Secondly, 73 counts ...

He was convicted, after a lengthy trial, of 66 counts of theft and of 70 counts of fraud. He was found not guilty and acquitted on the alternative charge of theft…..,.

The appellant has now appealed to this court against both conviction and sentence….,.

The respondent's counsel has also submitted, both in heads of argument and in oral submissions before the court, that the conviction in respect of the theft charge was proper and does not warrant interference by this court. Furthermore, that while a short sharp custodial sentence was proper in the circumstances the theft involved breach of trust on the part of the appellant, nevertheless the quantum of restitution will have to be adjusted in view of the concession relating to the fraud charges.

The appellant was employed by Aviation Ground Services as Head of Finance and Administration. He was entrusted as the custodian of the company's petty cash and was to ensure that the petty cash was used for authorised company expenses and authorised staff loans only. The appellant engaged in a series of unauthorised money advancements for himself. Most of the monies that he borrowed were for personal use including, but not limited to, issues like DSTV payments, kitchen refurbishments, medical fees, fuel. The appellant accessed these monies from the petty cash float without authorisation. The Managing Director's evidence was that he did not authorise these borrowings by the accused. It is not necessary to regurgitate his evidence relating to the respective borrowings by the appellant, suffice to say that his evidence reads well and was believed by the trial court. The appellant's conduct falls within that conduct criminalised in section 113(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant's claim that he reimbursed part of the money borrowed does not absolve him from criminal liability.

The appellant was aware that any money taken from the petty cash float had to be authorized. Furthermore, that for any borrowings by him such authorization was to be from the Managing Director. Regardless of this, he proceeded, and without such authorization, accessed the cash on the 66 occasions forming the basis of this charge. Section 113(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:-

“(2) Subject to subs (3) a person shall also be guilty of theft if he or she holds trust property and in breach of the terms under which it is so held, he intentionally -

(a) …,.

(b) …,.

(d) …,.”

On a perusal of the record of proceedings, the learned trial magistrate was justified in convicting the appellant, as he did, of theft as defined in section 113(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The conviction warrants no interference by this court.

HB21-11 : STATE vs NOMPUMELELO MPOFU
Ruled By: MATHONSI J and NDOU J

The accused was convicted on her own plea of guilty on 19 January 2010 of theft in contravention of section 113 of the Criminal Law Code [Chapter 9:23]….,.The facts are that the accused and the complainant are lovers. She is employed as a hair dresser at Nu Look Hair Salon in Bulawayo while he ...

HH13-14 : JANE SHAWO vs N. KATIYO N.O.
Ruled By: MAFUSIRE J

The single basis for the review application was that it had procedurally been irregular for the first respondent to have convicted without any evidence of the value of the prejudice. I disagreed. As I have already pointed out, the issue of the value of the vehicle sold by the applicant and the quantum of the rentals collected ...

HH206-14 : LOVEMORE DEWA vs THE STATE
Ruled By: BERE J and TAGU J

At Gweru Magistrates Court, on 27 November 2012, and after a contested trial, the appellant was convicted of theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,. The appellant has appealed to this court against both conviction and sentence. The appeal is opposed by the State.

HH299-14 : FIDELIS CHAUKE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

The appellant was charged with, and convicted of, the crime of theft as defined in section 113(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The State allegations were that, on 17 November 2012, and at Subdivision 5, Turkey Heart Farm, Lot 4 in Triangle, the appellant took the sum of $54,466=73 which ...

The appellant was charged with, and convicted of, the crime of theft as defined in section 113(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

The State allegations were that, on 17 November 2012, and at Subdivision 5, Turkey Heart Farm, Lot 4 in Triangle, the appellant took the sum of $54,466=73 which he held in trust for and on behalf of a partnership which one Takundwa Madziva and him formed, and converted the amount to his own use. Nothing of the said sum was recovered according to the State.

The appellant tendered a plea of not guilty to the charge.

He admitted that Takundwa Madziva and him entered into a partnership for the production and sale of sugarcane grown from the land - Subdivision 5, Turkey Heart Farm, Lot 4, Triangle – which the Government allocated to the appellant under its Land Reform Programme. The two, he said, created the partnership in August, 2010 and, on 3 May, 2012, he terminated the partnership. He stated that he terminated the partnership when he realised that the agreement violated section 13 of the Agricultural Resettlement Act. He maintained the position that neither the partnership which he said was, or is, illegal and, therefore, of no force or effect or the partnership's representative, Takundwa Madziva, could successfully cause him to be prosecuted and convicted in a criminal court. He insisted that the only recourse which remained open to the purported partnership, or to its representative, was to approach the civil court for redress….,.

The appellant appealed against his conviction. His main ground of appeal, which the State was wise to make a concession to, was, or is, that the partnership which Takundwa Madziva and him formed in August 2010 was illegal and, therefore, no criminal liability could flow from it.

From a reading of the record, there is not doubt that the parties' partnership was the basis of the appellant's arrest, prosecution as well as conviction and sentence. The said partnership grew sugar-cane on the appellant's land, sold the same and realised the sum of $54,466=73 which the appellant, according to the respondent, converted to his own use to the total exclusion of his partner, Takundwa Madziva. The conduct of the appellant in the mentioned regard did not go down well with Takundwa Madziva. He caused the arrest and prosecution of the appellant.

The appellant's argument was, or is, that the partnership was a clear violation of the law. He stated that his conviction was not only improper but was also a serious misdirection on the part of the trial court.

In support of his position in this mentioned regard, the appellant referred the court to section 13(1) and (2) of the Agricultural Land Resettlement Act [Chapter 20:01]. The section reads:

“Prohibition of cession etc

1. A lessee shall not

(a) …,.

(b) Enter into a partnership for the working of his holding;

2. A transaction entered into by a lessee in contravention of subsection (1) shall be of no force or effect.” …,.

The wording of the above-cited section is not only clear and unambiguous but it is also mandatory in nature. There is no doubt that the appellant falls into the definition of lessee as contemplated by section 13 of the Agricultural Land Resettlement Act [Chapter 20:01]. He held, and holds, the land on which the purported partnership grew sugarcane in terms of an offer letter through which Government offered the land to him. He cannot, in terms of the law, enter into a partnership with any person(s) for working the land which Government offered to him. Any purported partnership which he entered into with some person or other in violation of that clear, unambiguous and mandatory provision of the Agricultural Land Resettlement Act [Chapter 20:01] is of no force or effect.

The State read the law correctly when the appellant filed an appeal with this court against conviction. It conceded, properly so, that the appellant's conviction was unsustainable. The court agrees with both parties in respect of this matter. It, in the premises, has no option but to sanction the appellant's prayer which the respondent supports.

The court has considered all the circumstances of this case. It is satisfied that the appellant was erroneously convicted. The court, in the premise, orders as follows:

1. That the appeal be and is hereby allowed.

2. That the conviction and sentence of the appellant be respectively quashed and set aside.

3. That the appellant be and is hereby found not guilty and is acquitted of the charge.

HB116-14 : THE STATE vs NONSIKELELO DUBE
Ruled By: MOYO J and TAKUVA J

The accused person was charged with and convicted of theft (general deficiency) as defined in section 113(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

HB12-16 : LEONARD SILUME vs THE STATE
Ruled By: BERE J and MATHONSI J

The circumstances are that on the night of 23 June 2014, the appellant and his co-accused, who pleaded not guilty, decided to raid motor vehicles which were parked at the residences of the complainants. The appellant was a security guard at Chitkem Security Company. They proceeded to Stand 178 Lupane where a ...

HMA11-17 : THE STATE vs DOUGLAS MATHUTHU
Ruled By: MAWADZE J and MAFUSIRE J

Section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows; “113. Theft (1) …,. Irrelevant. (2) Subject to subsection (3), a person shall also be guilty of theft if he or she holds trust property and, in breach of the terms under which it is so held, he or she intentionally ...

HH32-15 : PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON JUNGWE vs THE STATE
Ruled By: BHUNU J and TAGU J

The appellants were charged, and convicted, after a contested trial, for contravening section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], as read with section 277(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (theft of trust property)….,. The bulk of the facts in this case are common cause. The undisputed ...

The bulk of the facts in this case are common cause.

The undisputed facts are that the first appellant is a Zimbabwean registered company situated at 12 Ridgeway North, Highlands, Harare. Appellants 2 and 3 are both Directors of Appellant 1. Appellant 2 is an uncle to the complainant. On the 9^th of October 2009, the complainant, who was based in Austria, and did not have a local bank account in Zimbabwe, requested, and was allowed by the appellants, to deposit her money into their company's Standard Chartered Bank account number 090318080. The complainant then deposited $165,877=57 for safe keeping. During the period extending from October 2009 to November 2011, the appellants withdrew a total of US$126,463=17 without the complainant's approval.

Nothing was recovered.

The appellants are appealing against both conviction and sentence handed down by the Regional Magistrates Court on the 11^thof February 2013. The appeal is premised on a number of grounds….,.

Counsel for the appellants abandoned several of the grounds of appeal and urged the court to hear the appeal on the ground that the money was not held in trust. He submitted that the money in question was given to the appellants to keep on her behalf and then return it back on demand. He, further, submitted that the three appellants acted as the complainant's bankers. Hence, their failure to return the money did not amount to a criminal liability, but a civil liability….,.

Counsel for the respondent supported the conviction and sentence imposed by the court a quo. Counsel for the respondent maintained that this was trust money which was to be kept for safekeeping.

As regards the conviction, the sole issue to be determined is whether or not the money was trust property as defined in the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Trust Property is defined, in section 112 and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], as follows -

“trust property' means property held, whether under a deed of trust or by agreement or under any enactment, on terms requiring the holder to do any or all of the following -

(a) Hold the property on behalf of another person or account for it to another person; or

(b) Hand the property over a specific person; or

but does not include property received on terms expressly or impliedly stipulating that –

(i) The recipient is entitled to use the property as his or her own; and

(ii) There would only be a debtor and creditor relationship between the parties.”

Section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] says -

“(2) Subject to subsection (3), a person shall also be guilty of theft if he or she holds trust property and, in breach of the terms under which it is so held, he or she intentionally -

(a) Omits to account or accounts incorrectly for the property; or

(b)…,.

(d) Converts the property, or part of it, to his or her own use.”

In casu, the reading of the record shows that the appellants were given the money to hold in trust on behalf of the complainant and to account for it. They failed to account for the money when the complainant wanted it. They were not to use it without her consent. It is not correct to say that the appellants held the money as the complainant's bankers and could use it as they pleased. Perusal of the record shows that when the appellants wanted to use part of the complainant's money they requested for it, and the complainant gave them the permission to use US$24,725= to buy macadamia nuts for resale and she gained interest in the sum of US$5,000=. When the appellants used the residue of US$126,463=17 they did so without any express permission from the complainant. The money was clearly trust property which they had to account for, but they squandered it without the complainant's consent.

The appellants therefore breached the trust that had been bestowed on them.

In our view, all the appellants committed the offence as alleged. The lower court did not err in convicting the appellants as it did. The conviction is therefore proper in the circumstances.

HB89-16 : THE STATE vs NJABULO SIBANDA
Ruled By: MATHONSI J and MOYO J

The 32 year old accused person was arraigned before a magistrate at Western Commonage in Bulawayo on 23 February 2016 facing a charge of theft, in contravention of section 113(1)(a) of the Criminal Law Code [Chapter 9:23]; it being alleged that on 12 February 2016 he had stolen three cellphones and cash all valued ...

HH90-15 : PASSMORE MEREKI vs THE STATE
Ruled By: CHATUKUTA J and MANGOTA J

The appellant, who is a 27 year old first offender, pleaded guilty to, and was convicted of theft as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State allegations were that, on 20 March 2013, and at the 1.4km peg which is along Makuti-Kariba Road, the appellant went to ...

HH109-15 : THE STATE vs KILLROY ZIMBUDZANA
Ruled By: DUBE J

The accused person appeared before a Harare magistrate facing charges of theft as defined in section 113 of the Criminal Law Codification and Reform Act [Chapter 9:23]. The allegations are that money went missing at the complainant and accused's workplace. It was later discovered, from CCTV clips, that the accused had stolen the money as he was ...

The Regional Magistrate has raised the following concerns:-

(1) That since the money the accused is alleged to have stolen was still within the shop, the accused should have been convicted of attempted theft.

(2) That the amount stolen is not stated in the charge sheet.

(3) That an effective imprisonment term was too excessive regard being had to the accused's personal circumstances.

I hold the view that the offence of theft was complete at the time that offence was discovered and the money recovered. The accused had stolen the money and hid it. This fact is supportive of an intention to deprive the owner, permanently, of all his property. The stages of preparation of the offence had passed and therefore a full offence was committed. This offence is different from that of shoplifting which takes place in a shop, where a shoplifter only commits the offence after emerging from the shop and is only supposed to be arrested when he leaves the shop.

The trial magistrate concedes that the amount stolen is not stated in the charge sheet.

A charge sheet in a theft of property case should always state, and clearly, the amount of prejudice that an offender causes to a complainant. That is, the value of the property stolen. It does not suffice to merely state or allege that an offender stole cash. A charge sheet couched in this manner does not sufficiently advise the accused of the offence he is required to answer to….,.

I have considered that the accused person acknowledged that he stole the amount in issue when essential elements were being put to him and hence he became aware of the amount allegedly stolen.

HMA02-18 : MAVESE MAPFUMO vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

This was a criminal appeal from the Magistrates' Court. It was against both conviction and sentence. The appellant was convicted of theft of trust funds as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the Code”]. The amount involved was $2,500=….,. Section 113[2][d] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) defines theft of ...

HH05-06 : NOLLAN KAWADZA vs THE STATE
Ruled By: GARWE JP and UCHENA J

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,. At the hearing of the appeal, counsel for the respondent conceded that the Regional ...

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

Counsel for the respondent, in making the concession, submitted that the applicant should be convicted on the competent verdict of receiving stolen property knowing it to have been stolen. He said this was to be premised on the appellant being in possession of the stolen motor vehicle the next morning after it had been robbed from the complainant after 10:00pm the previous night. He further pointed out that the appellant's conduct, after taking possession of the motor vehicle, proves he knew it was stolen. He pointed to the following as proof of such knowledge;

(1) That the appellant used an illegal exit from Zimbabwe to Mozambique resulting in the motor vehicle being stuck in Mukumbura River.

(2) He gave Cst. Muchira incorrect information about his identity and that of the motor vehicle;

(a) He told Cst. Muchira that he was Victor Mujuru Chatibva.

(b) He showed him a driver's licence in the name of Victor Mujuru Chatibva.

This proves the appellant did not want to be linked to the motor vehicle he had driven from Harare to Mukumbura River. This can only be because he knew the motor vehicle had been stolen.

Counsel for the appellant agreed with counsel for the respondent that the evidence proved that the appellant received the motor vehicle knowing it to have been stolen.

We were satisfied that the concessions made by counsel for both parties were properly made.

We, after hearing counsel's submissions on sentence and hearing the appellant's father's evidence in mitigation, set aside the appellant's conviction on armed robbery and substituted it with one of receiving stolen property knowing it to have been stolen. We also set aside the Regional Magistrate's sentence of 10 years imprisonment with 1 year and one and a half years suspended on conditions of good behaviour and restitution and substituted it with one of 7 years imprisonment with 2 suspended on conditions of good behaviour.

We gave our brief reasons on tapes and indicated that a detailed judgment would follow.

In his submissions against the appellant's conviction on armed robbery, counsel for the appellant submitted that the doctrine of recent possession does not apply to robbery.

Counsel for the respondent, in his submissions, submitted that he has not been able to find a case where it was applied to robbery but submitted that it has been used in housebreaking with intent to steal and theft cases.

This is an important point of law which this court must determine even though this case can be resolved without relying on the doctrine of recent possession.

In the case of S v Parrow 1973 (1) SA 603 (A) referred to by counsel for the respondent, HOLMES JA…, said:-

“I pause here to refer briefly to the so-called doctrine of recent possession of stolen property. In so far as here relevant, it usually takes this form. On proof of possession by the accused of recently stolen property, the court may (not must) convict him of theft in the absence of an innocent explanation which might be reasonably true. This is an epigrammatic way of saying that the court should think its way through the totality of the facts of each particular case and must acquit the accused unless it can infer, as the only reasonable inference, that he stole the property. (Whether the further inference can be drawn that he broke into the premises in a charge such as the present one will depend on the circumstances). The onus of proof remains on the State throughout. Hence, even if after the closing of the cases for the State and the defence, it is inferentially probable that the accused stole the property, he must be acquitted unless the only reasonable inference is that he did so for the law demands proof beyond reasonable doubt.”

I respectfully agree with the learned judge of appeal. The important aspects of HOLMES JA's decision in S v Parrow 1973 (1) SA 603 (A) are:-

(1) The doctrine of recent possession is based on an inference being drawn that the possessor of recently stolen property stole the property.

(2 If he cannot give an innocent explanation of his possession; and

(3) The inference that he stole the property is the only reasonable inference that can be drawn from such possession.

In other words, recent possession can be used to found a conviction if the court, after sifting through the whole evidence before it, finds that the only reasonable inference which can be drawn from the recent possession is that the accused stole the property.

In the case of S v Parrow 1973 (1) SA 603 (A) the doctrine was applied to a house breaking with intent to steal and theft case. In my view, there is no reason why the doctrine cannot be used in any case of which theft is a component - like robbery. It would be absurd for the court, in a robbery case, to be satisfied that if it was only dealing with theft it could have drawn the inference that the accused stole the property but hesitate to find that since he stole the property he is the robber. There is, in my view, no reason for the hesitation. If the doctrine can be applied to house-breaking with intent to steal and theft cases there is no reason why it cannot be applied to robbery cases. The issue should simply be; does the evidence of recent possession prove he is the thief? If it does, and the stealing was during a robbery, then he will have been proved to be the robber just as such evidence can be used to prove that the thief is the housebreaker.

In the case of Black Samson v The Queen AD 106/69 BEADLE CJ…, said:-

“It appears from these cases that where fairly shortly after a housebreaking, the accused is found in possession of some of the articles which were stolen at the time and does not give an explanation that he received the stolen goods from a third party who may have stolen them, the court is perfectly justified in finding him guilty not only of housebreaking but also of the theft of the articles stolen at the time when the housebreaking occurred. The reasoning behind these cases is that where the evidence is sufficient to establish the fact that the accused stole a particular article from the complainant and if the theft of that particular article involved housebreaking, that evidence is sufficient to establish that the housebreaking which occurred at the time of the theft was committed by the accused…,.”…,.

In my view, this also applies to a person who is found in recent possession of goods stolen during a robbery. If the only inference that can be drawn from the totality of the evidence is that he stole the goods then he can be convicted of the robbery of those goods and others robbed from the complainant at the same time….,.

These then are our reasons for setting aside the appellant's conviction on armed robbery and substituting it with one for receiving stolen property knowing it to have been stolen…,.

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

The accused was convicted by the Magistrate sitting at Chiredzi of contravening section 113(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft of trust property. The facts proved during the trial are that the 34-year-old accused was left in custody of two 32-inch plasma television sets by his employer of seven to eight ...

HB169-17 : THE STATE vs EVERTON MOYO
Ruled By: TAKUVA J

The doctrine of recent possession is to the effect that if three (3) requirements are satisfied the court may (not must) infer that the accused stole the goods which were found in his possession. It is simply a common sense observation on the proof of facts by inference. The requirements ...

HH420-13 : MAZVITA EVELYN FATA vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

The appellant appeals against her conviction and sentence. She denied that she had stolen US$24,000 from her employer, but, after a trial, she was convicted and sentenced to 4 years imprisonment of which 6 months were suspended for 5 years on condition of good behaviour and 36 months on condition she makes full restitution of the whole amount through the Clerk of Court on or before 30 April 2012.

There is an order annexed to the sentence requiring “household property to be returned to accused.”

The case against the appellant was built around the claim by the complainant that she lost US$24,000 around the time the appellant worked for her as a housemaid. The complainant stated, in her evidence, that she engaged the appellant as a maid in March 2011. She worked mornings only. She did not stay on the premises.

In January, the appellant told her that she had had a miscarriage. They (appellant and her husband) left their residence, which was across the road from hers, to proceed to their rural home. It was then that she picked a rumour concerning the appellant's sudden good fortune. As a result, she checked her own treasure and found her savings, amounting to US$24,000 missing. She instantly suspected the appellant and reported her suspicion to the police. The appellant was arrested.

The complainant stated, in her evidence in court, that she kept her savings in a locked built-in wardrobe. She believed the appellant found her keys where she kept them and unlocked it before helping herself to this sum of money. This led the appellant to brag that she was rich to those in her circle of acquaintances. The police recovered household property. The investigating officer told the court, in evidence, that the appellant told her that the complainant's husband had given her some money after they fell in love. The appellant also told her that she believed a house belonging to the appellant was recently built using the proceeds of theft since it was a newly-built three roomed house.

Another State witness, Patricia Magadu, the appellant's sister-in-law, told the court that the appellant advanced her a sum of US$3,000. According to this witness, the complainant's husband had raped her and they were caught in the act. He paid her off in the sum of US$7,000.

In her defence, the appellant told the court that, in August 2011, whilst employed by the complainant, she had been raped by the complainant's husband after which the complainant's husband gave her US$5,000. He had given her another US$2,000 after another sexual escapade in their computer room. From the two amounts, she had built her three-roomed house in the communal lands and lent her sister-in-law, Patricia Magadu, US$3,000. She bought household effects using the remainder.

She stated that this happened well before the complainant allegedly lost her savings. She denied that she could have stolen the complainant's savings as she had never been left alone inside her main bedroom where the complainant claimed she kept the money. In any event, she stated that there was a screen door to the bedroom which would always be locked. She had no knowledge of where this money was kept or how it was secured.

No-one saw the person who took the complainant's savings from wherever it was. No one, besides the complainant, knew how much she kept and therefore how much was stolen from her - not even her husband. No one knows when the complainant lost her money - including the complainant herself. So, at the outset, there is no proof that the complainant had the amount of money in the house that she claims she had kept locked away for a rainy day. Not even her husband, who stated that he gave her money to keep, was able to corroborate her as to the amount she kept in the house.

As to the date of the theft, whilst it is not an essential element of theft, the particulars of when the crime allegedly occurred would assist the accused in preparation of her defence. Presently, the averment is that the theft occurred “during the period extending from August 2011 to 14 January 2012.”

The case against the appellant was therefore based on circumstantial evidence.

The evidence tendered by the prosecution is not sufficient to prove, unerringly, that the accused was responsible for the crime. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

In S v Hartlebury & Anor 1985 (1) ZLR, this court, per McNALLY J…, set out what constitutes circumstantial evidence in the following terms:

“Now, all this evidence may be described as 'circumstantial evidence'. As regards the inferences to be drawn from such evidence, I have accepted that one must ask oneself whether a reasonable man might draw the inferences sought to be drawn by the State and it is perhaps useful in this connection to cite the remarks made in S v Cooper & Ors 1976 (2) SA 875 (T) at 888H to 889C as follows:

'When triers of fact come to deal with circumstantial evidence and inferences to be drawn therefrom, they must be careful to distinguish between inference and conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. But, if there are no positive proved facts from which the inference can be made, a method of inference fails and what is left is mere speculation or conjecture…,.

One often gets cases where the facts proved in evidence, the primary facts, are such that the tribunal of fact can legitimately draw from them an inference one way or the other; or, equally legitimately, refuse to draw any inference at all. But, that does not mean that when it does draw an inference it is making a guess. It is only making a guess if it draws an inference which cannot legitimately be drawn; that is to say, if it is an inference which no reasonable man could draw.'”

In Attorney-General v Paweni Trading Corp (Pvt) Ltd 1990 (1) ZLR 24, per KORSAH JA, the Supreme Court held…,:

“It seems to me that, in determining the parameters of the phrase under consideration, the court is in a way concerned with the rules governing circumstantial evidence; for the court is merely drawing inferences from the proven facts. And, as BEADLE CJ observed in R v Sibanda & Ors 1965 RLR 363 (A) at 370 A-C; 1965 (4) SA 241 (SRA) at 246 B-C:

'Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of the accused beyond reasonable doubt: See R v de Villiers 1944 AD 493.

Where, however, there is a particularly vital fact which, in itself, determines the guilt of an accused, it must be proved beyond reasonable doubt.'

To my mind, then, if there are reasonable grounds for taking certain facts into consideration, and all the facts, when taken together point inexorably to the guilt of an accused beyond peradventure, but the trial court nonetheless acquits the accused, then the trial court has taken a view of the facts which could not reasonably be entertained. Put another way, if, on a view of the facts, the court could not reasonably have inferred the innocence of the accused, then the verdict of acquittal is perverse and the Attorney General is entitled to attack it.”

In S v Maranga 1991 (1) ZLR 244 the Supreme Court, per KORSAH JA, expressed itself on the subject thus;

“Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence.

LORD NORMAND observed, in Teper v R [1952] AC 480 at 489 that:

'Circumstantial evidence may sometimes be conclusive, but, it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another.

Joseph commanded the steward of his house, 'put my cup, the silver cup, in the sacks mouth of the youngest'; and, when the cup was found there, Benjamin's brethren too hastily assumed that he must have stolen it.

It is also necessary, before drawing the inference of the accused's guilt from circumstantial evidence, to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'

I ask myself; is the inference that the first appellant was hunting at Twin Tops Ranch the only one to be drawn from the circumstantial evidence?

While the circumstantial evidence leaves me with a strong suspicion that he was up to no good, it cannot be said that the circumstantial evidence proffered excludes any other conclusion. Even if the first appellant's explanation that he was on his way to purchase vegetables from the resettlement area does not have a ring of truth about it, it still is not inconsistent with the circumstantial evidence and remains a possible explanation of his presence on a public thoroughfare adjacent to the ranch. At best, the circumstantial evidence raised no more than a very strong suspicion that the first appellant was there to hunt. The learned trial magistrate could not have been satisfied that the explanation was false. R v Difford 1937 AD 370 @ p249.”

In the Indian Supreme Court matter of Bhagat Ram v State of Punjab AIR (1954) SC 621 it was laid down that, where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

The same Court, in C. Chenga Reddy v State of A.P. [1996] 10 SCC 193, observed thus:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In Padala Veera Reddy v State of A.P. AIR (1990) SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests, which, in my respectful view, aptly summarize the approach of the courts here as well as in South Africa and in England:

(1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused; and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

It is important to carefully scrutinize the evidence of the complainant regarding the charge of theft faced by the appellant.

The complainant was unable to prove the amount of money that she claims she lost. It was critically important, in view of the explanation given by the appellant, that the amount be proved. The period during which the theft occurred must have been proved to coincide with the period during which the appellant became “rich”. There was no proof that these periods coincided.

Her claim that she built her house long before the theft remained unchallenged.

The appellant stated that she had been given a total of US$7,000 by the complainant's husband. She claimed this was the source of her sudden show of opulence. It was incumbent to show, by evidence, that this explanation was not only improbable, but, in all respects, false. The falsity of her explanation, given her known income at the time, would have gone a long way towards giving a lie to her whole evidence thereby creating an only reasonable inference that she, and only she, stole the complainant's money.

The complainant's husband confirmed the appellant's evidence that there were other maids who worked for the complainant during the same period the money was lost. There was no proof that, unlike the appellant, they did not enjoy access into the main bedroom where the money was kept.

Her evidence, that there were other maids who were employed at the same time with her, and even after she left the complainant's employ, stick out like a sore thumb.

The State did not exclude the possibility raised by this fact of other possible suspects having had the same opportunity as the appellant to access the complainant's savings.

In any event, her explanation of the resources suddenly available to her were not seriously challenged.

As conceded by the State, her explanations to how she acquired the assets found at her residence could not be said to be reasonably beyond all probability untrue. In fact, it was reasonably possibly true. In that event, the court was not entitled to reject it as false or improbable, let alone convict her of theft.

What I am required to determine is whether there is any possibility that any reasonable court could draw the inferences which the prosecution sought to be drawn from the facts that I have just outlined.

It seems to me that no reasonable person could possibly draw inferences of any kind, or any relevant kind, from the evidence I have referred to and it seems to me to be beyond a shadow of doubt that one can only speculate. The learned trial magistrate fell into error when he concluded that the circumstantial evidence adduced led irresistibly to the conclusion that the appellant was guilty of theft of US$24,000.

In light of the above observations, I respectfully find that there was no proof beyond a reasonable doubt.

I am unable to conclude that the facts proved at trial are consistent only with the guilt of the appellant and no-one else and inconsistent with her innocence. The fact that the appellant bragged about being rich, or that she had acquired substantial assets, or built a three-roomed house in the rural areas could only lead to very strong basis for the suspicion that she stole the complainant's money. To hold her liable for the theft could only be based on such speculation and conjecture as revealed in the trial - nothing more. The conviction is totally unsafe as there are other inferences which could reasonably be drawn from the same facts besides that the appellant stole US$24,000.

She said she sold a piece of diamond. This was not rebutted. It was not an impossibility for her, at the time, to achieve such wealth this way at the time.

In the result, therefore, the appellant's conviction for theft is quashed and her sentence is set aside.

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was convicted of theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] involving US$30,178. He was sentenced to 5 years of which 3 years imprisonment were suspended on condition he made restitution in that sum before 30 December 2013.

He appealed to this court against both conviction and sentence.

After hearing counsel we allowed the appeal and indicated that our reasons for that decision will follow. These are they.

The brief facts upon which the learned trial magistrate found the appellant guilty of theft of cash may be stated as follows:

The appellant was the local co-ordinator of Cordaid, a non-governmental organisation with provincial offices in Mutare for its Manicaland operations. On 8November 2012, one Ian Nyamande and the appellant carried out a cash count. There was US$30,178 on hand. That sum was left in the appellant's custody as his co-administrator, Ian Nyamande, was proceeding on time off that weekend. The safe, inside which the money was placed, has a double lock system which would require that they both operated it to lock or unlock. Ian Nyamande did not lock it since he was proceeding on time off leaving the task to the appellant.

On 11 November 2012, the appellant unlocked the safe using his key and stole cash in the sum stated above.

In his grounds of appeal, the appellant states that the learned trial magistrate erred in convicting the appellant on the basis of circumstantial evidence when more than one reasonable inference could be drawn from the proven facts.

He also states that the learned trial magistrate erred in relying wholly on the evidence of Ian Nyamande without treating it with caution as he is a possible accomplice to the commission of the crime.

These two grounds of appeal, in our view, sufficiently cast doubt on the soundness of the conviction by the court a quo.

I will demonstrate.

The appellant, in his defence, pointed out that Ian Nyamande had the keys to the safe and had locked the safe prior to him proceeding on his days off. He had discovered the theft on the following Monday and reported it to the police. He also pointed out that the office inside which the safe was located could be accessed by several other people besides himself and Ian Nyamande. Insiders, as well as outsiders, could have perpetrated this offence.

The learned trial magistrate, in his reasons for judgment, emphasized the apparent contradictions in the appellant's testimony regarding whether the appellant had his key to the safe at the relevant time. He noted that the appellant had suggested that he had lost his key after 8 November 2012. The learned trial magistrate also relied on the evidence of Phyllis Mandizvidza, that, upon entering the office on Monday 12 November 2012, she noticed that the safe door was open. In her words, “it was the most visible thing.” Therefore, the magistrate reasoned, the appellant delayed reporting the theft because he had stolen the money - yet, Addlight Mukubvu says she did not notice anything unusual upon her entry into the office on Monday morning.

There was no attempt to reconcile these two ladies evidence on this point yet the magistrate used it to make an adverse finding of credibility against the appellant.

If Addlight Mukubvu did not notice anything unusual on Monday morning, no inference ought to have been made against the appellant on his failure to notice the break-in timeously as the magistrate did.

He also placed reliance on the supposed malfunction of the door to the office which was not closing properly as noticed by the witnesses on the day prior to Monday 12 November.

There was no evidence as to the general security of this particular office so as to exclude the possibility of an outsider having broken into the office then into the safe. That the appellant had the key to the safe, and, therefore, custody of the money, is not the only reasonable inference which could be made on the facts before the court.

It appears that the magistrate placed emphasis on the fact that Ian Nyamande made a call from South Africa regarding his absence at work on Monday therefore he was in South Africa at the time the theft occurred. I note that there was no acceptable evidence that indeed Ian Nyamande was in South Africa when he made that call. The magistrate erred in concluding that Nyamande was not in Mutare when the theft occurred. He relied on Nyamande's say so to arrive at the conclusion. He therefore concluded that it was the appellant who had stolen the money as he was the custodian of this money.

The record demonstrates, beyond doubt, that there are several possible inferences as to when the money could have been stolen.

At record p8, it is recorded that, after counting the money, Ian Nyamande placed it back into the safe and locked it. Ian Nyamande says he had not locked it because the appellant needed to access the safe during his absence. So he left it up to the appellant to lock using his key only.

But, could it not be possible that Ian Nyamande did not lock it for another reason?

The record shows that he had reason to visit the office alone in order to place some US$900 inside the appellant's drawer for the appellant's use. What this shows is that he also had access to the safe before 12 November 2012 when he was supposedly off-duty. The other ladies came to the office between Saturday and Sunday for different reasons. Ian Nyamande was required to lock the safe in terms of the established procedure. He did not do so. Nyamande's leave forms permitted his absence from duty only on Friday; so, on Monday, he was expected to be in the office. That being so, there is no reason why he had to make the US$900 accessible by the appellant by visiting the office alone on Friday after work.

I wish to point out that the appellant correctly states that the State case against the appellant rested on circumstantial evidence.

I would however wish to point out that even in the most straightforward of cases, one must ultimately nevertheless draw inferences. As an example, where X fired his gun which hits and kills D, it is the only fair and reasonable inference to conclude that the bullet fired by X hit and killed D since it is not possible to see it travel its line of trajectory and hit D with fatal consequences. ZEFFERT and PAIZES explain that:-

“All evidence requires the trier of fact to engage in inferential reasoning.” See The South African Law of Evidence…,.

Some evidence requires fewer inferences, this would be traditionally so-called direct evidence, whereas other evidence, traditionally circumstantial evidence, will require more inferences. The point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence. The question ultimately becomes: how is a court to evaluate the evidence?

The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either type of evidence may be enough to establish guilt beyond a reasonable doubt, depending on the facts of the case.

Because circumstantial evidence requires the drawing of inferences, it is incumbent for this court to restate the process involved in analyzing that evidence and what a court must do before returning a verdict of guilty based solely on circumstantial evidence.

(a) Initially, the court must decide, on the basis of all of the evidence, what facts, if any, have been proven. Any facts upon which an inference of guilt can be drawn must be proven beyond a reasonable doubt.

(b) After the court has determined what facts, if any, have been proven beyond a reasonable doubt, then it must decide what inferences, if any, can be drawn from those facts. Before they may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts; it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them.

Again, it must appear that the inference of guilt of the accused is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes, beyond a reasonable doubt, every reasonable hypothesis of innocence. If there is a reasonable hypothesis, from the proven facts, consistent with the accused's innocence, then, the court must find the accused not guilty.

If the only reasonable inference the court finds is that the accused is guilty of a charged crime, and that inference is established beyond reasonable doubt, then the court must find the accused guilty of that crime.

S v Marange & Others 1991 (2) ZLR 244 (S)…,.: Teper v R (1952) AC 480 489; S v Shonhiwa 1987 (1) ZLR 215 (S)…,.; R v Harry (1952) NZLR 111; McGreevy v Director of Public Prosecutions (1973) 1 ALL ER 503 (HL); Shepherd v The Queen (1990) 170 CLR 573…,.

The court must always bear in mind that the standard of proof in a criminal case is “beyond a reasonable doubt.”

If a piece of evidence cannot measure up to this standard, then the court will discard it; if it does, the court will rely upon it. Thus, the so-called “cardinal rules of logic” are an exhortation to always bear in mind the rationale behind evidence.

The “cardinal rules of logic” in S v Blom 1939 AD 188…, represent the law on the drawing of inferences in criminal trials. They state that (to paraphrase):

1. The inference sought to be drawn must be consistent with the proved facts.

2. The proved facts must exclude all other inferences except the one sought to be drawn.

In attempting to refine this “cardinal rule of logic” I suggested as follows in Wilson Muyanga v S HH79-13 (unreported):

“The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no-one else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. See S v Shoniwa 1987 (1) 215 (SC) and the cases therein cited.”

The courts are clear that in the drawing of inferences they must take into account the totality of the evidence, and must not consider evidence on a piecemeal basis. S v De Villiers 1944 AD 493; S v Reddy 1996 (2) SACR 1 (A); R v Mtembu 1950 SA 670 (A).

It seems to me that the possibility that someone else besides the appellant stole the cash from the safe was not reasonably and fairly excluded by the evidence placed on record.

Besides the appellant, the main State witness had the opportunity to steal the money just as the appellant had.

The possibility of an intruder was similarly not excluded by the evidence.

A more thorough and exhaustive investigation might have excluded both the appellant as well as Ian Nyamande and the ladies. It did not. In other words, the evidence does not unerringly point exclusively to the appellant as the culprit in the theft of the money subject of the charge. As such, the conviction cannot be said to be safe as the evidence has not gone past the accepted threshold of proof beyond a reasonable doubt.

It was for these reasons that we allowed the appeal and quashed the conviction and set aside the sentence imposed by the court a quo.

HH224-15 : THE STATE vs HENRY GANDA
Ruled By: MAFUSIRE J and MWAYERA J

This matter came up for review via referral by the Regional Magistrate in terms of section 58(3)(b) of the Magistrates Court Act [Chapter 7:10].

On scrutiny, the Regional Magistrate declined to confirm the proceedings of the trial court. He felt that they were not in accordance with real and substantial justice.

The accused was charged with theft (of trust property) as defined in section 113(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”).

He pleaded guilty and was convicted.

He was sentenced to six months imprisonment of which five months were suspended for five years on the usual condition of good behaviour. The remaining one month was suspended on condition of restitution.

On scrutiny, the Regional Magistrate asked the trial court whether it had been proper to convict the accused on a plea of guilty in spite of his allegation that he had left the property (a push cart) outside the house from where it had subsequently been stolen. The Regional Magistrate also enquired whether the accused's plea of guilty should not have been altered to one of not guilty so that a full trial would have been conducted. He further inquired whether gross negligence on the part of the accused had sufficed as the form of intent required on a conviction of theft of trust property.

In reply, the trial magistrate said the accused had failed to account for the property; that he had left it outside knowing full well that it would be stolen; and that such conduct amounted to dolus “eventually” (sic). He also said that the accused's admission convinced the court that he had the requisite mens rea. The trial magistrate argued that the accused's circumstances were clearly different from those of a person whose property had unfortunately been stolen. He concluded by saying that probably the reference to “gross negligence” could have created the impression of a lack of intent but that ultimately the accused's conduct was deliberately carried out with a reasonable realisation that the property would be stolen.

Not having been satisfied with the trial magistrate's response, the Regional Magistrate referred the matter as aforesaid.

I find myself in agreement with the Regional Magistrate.

In terms of the charge sheet, the accused, allegedly in violation of a trust agreement which required him to hold the trust property (the push-cart) on behalf of the complainant to whom he had been obliged to hand it back on demand, had, on the date and at the place mentioned, unlawfully and intentionally converted the property to his own use.

The State Outline, after identifying the complainant, stated that on the date, and at the place mentioned, the complainant had given the accused the push cart “…, for hire to sell his products since July 2014…,” but that the accused had failed to return it to the owner.

The State Outline went on to state that since the accused had been the person with the property the complainant had approached him to take it back but that the accused had told the complainant that it had gone missing since the end of July 2014. The total value was put at $80. Nothing was recovered. The accused was said to have had no right to act in the manner he had.

At trial, after the charge and the facts had been read out to the accused, and after his plea of guilty had been entered, the trial court went on to canvass the essential elements as follows:

“Q. Admit [that] on 20/07/14, and at Tanganyika 3 Flats, you were given a cart by [complainant] on a rent to buy?…,.

A. Yes.

Q. You disposed of the cart?

A. I left it outside my house and it was stolen at night.…,.

Q. You left it outside your house at night?

A. Yes.

Q. Was it guarded?

A. No.

Q. Was it secured in any manner?

A. No.

Q. You realized the possibility that it may be stolen?

A. Yes.

Q. You admit you were…, [indecipherable]…, grossly negligent and failed to account?

A. Yes.

Q. Any right?

A. No.

Q. Any legal defence?

A. No.”

After that, the accused was found guilty as charged.

Clearly, the accused did not admit to the crime of theft of trust property. Instead, he was saying he was himself the victim of theft.

In terms of the Criminal Code, theft is the taking of property capable of being stolen, knowing that another person is entitled to own, possess or control it, or realizing that there is a real risk or possibility that another person may be so entitled, and intending to deprive that other person permanently of his or her ownership, possession or control, or realising that there is a real possibility that he or she may be so deprived.

In this case, neither the actus reus nor the mens rea was established.

Theft of trust property occurs where a person holding trust property, in breach of the terms under which he holds it, omits to account for the property; or accounts incorrectly; or hands over the trust property to someone else other than the owner; or uses the trust property, or part of it, for a purpose other than that for which he or she is obliged to use it; or converts it to his or her own use.

There was no evidence that the accused had converted the push cart to his own use.

Trust property is defined to mean property held, whether under a Deed of Trust or by agreement or under any enactment, on terms requiring the holder to hold the property on behalf of another; or to account for it to another; or to hand the property over to a specific person; or to deal with the property in a particular way.

Significantly, property received on terms expressly or impliedly stipulating that the recipient is entitled to use it as his or her own, and where there would only be a debtor and creditor relationship between the parties, does not constitute trust property for the purposes of the offence.

In this case, the State Outline made an ambiguous reference to the “hire” of the push cart by the accused to sell “his” products “…, since July 2014.” It is not clear whether “his” was referring to the accused or the complainant.

But, in canvassing the essential elements, the magistrate referred to a “…, rent to buy” arrangement to which the accused admitted.

If that was the case, then the push cart was not trust property. The relationship between the accused and the complainant would have been one of debtor and creditor respectively. That is not a criminal relationship in terms of the Criminal Code.

The accused ought not to have been convicted of theft of trust property without a proper trial.

Furthermore, the accused may have been grossly negligent or reckless in leaving the property outside unsecured or unattended. However, that could not amount to mens rea if it was not him that stole it, or caused it to be stolen for his own purposes.

Negligence, however gross, or recklessness, cannot amount to mens rea or dolus eventualis as the trial magistrate meant to say: see Attorney-General v Munganyi 1986 (2) ZLR 137 (SC).

In that case, in the context of reckless driving within the meaning of the Road Traffic Act, then No.48 of 1976 (now Chapter 13:11), where driving “recklessly” and “negligently” are now listed separately and seemingly disjunctively following an amendment to that Act, the court held that these categories of negligent driving involve a gross and aggravated degree of negligence which, however, does not require any element of dolus.

It was not clear why the accused had the push cart in his possession in the first place. But, from the scanty facts, it seems that the relationship between him and the complainant was one of creditor and debtor. That relationship can stem either from agreement, as envisaged by the definition of “trust property” in section 112 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code), or from delict in terms of the common law. But, in either case, the failure to return the item that is the subject of such an arrangement does not constitute theft of trust property.

The accused's plea of guilty should have been altered to one of not guilty and a full trial should have been conducted.

In the circumstances, the conviction and sentence in the court a quo are hereby set aside.

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

Section 123 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Law Code)…, provides:“(1) Subject to subsection (2) where a person is found in possession of property that has recently been stolen and the circumstances of the person's possession are such that he or she may reasonably be ...

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

A superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where a grave injustice would occur if the superior court does not intervene.

Although this court's review power may be exercised to grant a mandamus even before the termination of a case if there were gross irregularities in the proceedings or it is apparent that justice might not be attained, the general rule is that this court's power of review is exercised only after termination of a criminal case.

The applicant was arraigned before a Provincial Magistrate in Gwanda charged with theft in contravention of section 113(2)(c) of the Criminal Law Code [Chapter 9:23] the allegations being that he stole a sum of $70,533=34 belonging to the partnership of Enfund and N & S Partnership; proceeds from the sale of 43 Stands belonging to the partnership which were sold on behalf of the partnership by Umzingwane Rural District Council and the money given to the applicant.

It is alleged, that, instead of using the money to purchase reticulation pipes and pay plumbers laying the pipes on behalf of the partnership the applicant used the money for other purposes.

The applicant pleaded not guilty to the charge, and, in his Defence Outline, he stated that he received the proceeds of the sale of the Stands in his capacity as the Finance Director of the Partnership; he having been one of the two partners, the other being Nicholas Masuku who is the complainant in the matter. The latter was the Operations Director.

The money was to be used for, among other things, fuel and oils, pipes for servicing, casual wages, repairs and maintenance of equipment as well as office expenses.

When he received the money he used it for that purpose.

He therefore disputed stealing the money and maintained that some of the money was actually collected and used by the complainant.

Indeed, evidence led on behalf of the State showed that the complainant is the one who received the sum of $2,400 in Count 3 which he says he used to pay wages.

The complainant's gripe was that the applicant had not properly accounted for the rest of the money.

At the close of the case of the prosecution, the applicant made an application for discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which enjoins the trial court to discharge an accused person at that stage where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict or the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it: see S v Kachipare 1998 (2) ZLR 271 (S)…,.; Attorney General v Bvuma and Another 1987 (2) ZLR 96 (S)…,.; Attorney General v Mzizi 1991 (2) ZLR 321 (S)…,.; Attorney General v Tarwirei 1997 (1) ZLR 575 (S)…,.; S v Tsvangirai and Others 2003 (2) ZLR 88 (H).

The applicant's counsel submitted, that, there was “no iota of evidence” linking him to the commission of the offence and that putting him to his defence would amount to bolstering the State case unable to stand on its own. The evidence of the State was manifestly unreliable that no reasonable court acting reasonably could safely rely on it. The requirements of theft had not been satisfied. As the State had failed to establish a prima facie case, the trial court was required to acquit by virtue of the peremptory provisions of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In response, counsel for the State conceded that the money forming the subject of the charge belonged to the partnership of both the applicant and the complainant. He also conceded that he was entitled to a discharge in respect of Count 3 relating to the money which the complainant admitted having collected and used.

The learned Provincial Magistrate would have none of it.

In his determination of the application for a discharge at the close of the State case he surprisingly did not address the usual question of whether the evidence adduced for the State had established a prima facie case for which the accused person could be called upon to answer. Instead, he reasoned thus:

“In a partnership, like the one entered into by accused and the complainant, the property they acquire through such partnership belongs to both of them jointly, and not individually, unless duly apportioned. If one of the partners uses the property for whatever purpose, the other partner should be appraised fully and timeously. If the property or money is used for the benefit of the project, both parties need to know and agree.

In this case, complainant is entitled to know how the proceeds of the sale of the 43 Stands was spent. Accused has a duty to explain, satisfactorily, to his partner. For accused to give a verbal explanation how the money was used is not enough. Accountability and transparency on the use of such money is required.

Complainant has the right to know.

Also, the argument that accused was the owner of the proceeds of the sale of the 43 Stands and therefore could not steal such is, to use the word used by the defence, nonsensical. The proceeds belonged to the partnership and not an individual. Accused could therefore steal this money though he was a [partner] if the other partner did not approve of his taking.

To discharge accused without having fully explained to the complainant how the proceeds of the sale of the 43 Stands, at this stage, would amount to a gross miscarriage of justice.

As I said earlier on, for accused to say I paid wages with this money, I bought fuel and oils or other equipment, without documentary evidence to prove accountability, is clearly not adequate and does not suffice. Accountability on the use of these funds was required.

Complainant is entitled to know.

There is nothing civil about this case at this stage.”

So, the applicant was put to his defence, not because the State had proved the essential elements of the theft as provided for in the law, or, put it another way, not because the State had established a prima facie case, but merely because, as a partner in a partnership of himself and the complainant, he was required to account to his partner how the money he received was applied.

The applicant has now taken that decision on review in HC1699/16, and, as the respondents are agitating to proceed with the trial on 23 August 2016, he has filed this urgent application for stay of the criminal proceedings pending the review.

Counsel for the applicant pointed to a number of misdirections in the decision but highlighted the failure by the magistrate to acquit the applicant even in Count 3 where the State conceded that the money in that Count was received by the complainant and applied for other purposes.

If the complainant did not commit an offence so did the applicant.

Above all, this points to the fact that the court did not deal with the application at all but merely dismissed it for no reason.

I have said that this court will not interfere in unterminated proceedings except where there is gross irregularity resulting in a miscarriage of justice. That is the point made by MALABA JA…, in Attorney General v Makamba 2005 (2) ZLR 54 (S)…, where the learned appeal judge said:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.

In Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A) STEYN CT at page 4 said:

'It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in un-terminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'

See also Ndlovu v Regional Magistrate, Eastern Division and Another 1989 (1) ZLR 264 (H) at 269C, 270G; Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) at 41C.”

In that case, the Supreme Court went on to quash the decision of the High Court, on review, substituting an acquittal where the Regional Magistrate had refused an application for discharge at the close of the State case. It remitted the matter for continuation of trial.

In Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 (H) DEVITTIE J was confronted with a similar situation as obtaining in the present case as the applicants had sought a stay of criminal proceedings which were not complete to enable them to pursue a review application against the decision of the trial magistrate refusing an application for recusal. The following appear at 37F-G of that judgment:

“In determining the power of a superior court to intervene in unterminated criminal proceedings, a distinction must be drawn between an appeal and a review.

HERBSTEIN & Van WINSEN, Civil Practice of the Supreme Court of South Africa 4ed p932 explain the distinction:

'The reason for bringing proceedings under review or appeal is usually the same - to have the judgment set aside.

Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.

The first distinction depends, therefore, on whether it is the result only or rather the method of the trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.

The giving of a judgment not justified by the evidence would be a matter of appeal and not a review, upon this test.

The essential question in review proceedings is not the correctness of the decision under review but its validity.'

Where, in unterminated proceedings, an interlocutory decision is sought to be set aside on grounds that the court has made a wrong decision in the proper discharge of its functions the appropriate procedure is by way of appeal. The general principle is that an appeal will be entertained only after conviction.”…,.

The court dismissed the urgent application for stay of criminal proceedings because the recusal application had no merit.

See also Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; S v John 2013 (2) ZLR 154 (H).

What is clear, therefore, is that this court will only exercise its review jurisdiction to intervene in unterminated criminal proceedings where the irregularity is gross or where it is such that an injustice might not be attained by other means.

In the present case, the Provincial Magistrate was asked to determine an application for a discharge of the applicant at the close of the State case.

Considerations in such an application centre around the existence of a prima facie case for which the accused person is called upon to answer. Where no such case exists, the accused person is entitled to an acquittal.

I must however pause there a while and mention that, at the moment, I am not sitting in judgment over the review application. The present assignment, however, requires me to take a peep into that application to see whether it is worth staying proceedings for - a process which involves the exercise of a discretion.

It would be an injudicious exercise of a discretion were I to stay unterminated criminal proceedings where the court is unlikely to exercise its review powers in favour of the applicant.

I have quoted the judgment of the Provincial Magistrate above to demonstrate that he appears to have allowed his mind to wander off the field of discourse. In the end, he did not address the application before him at all.

In criminal proceedings, it is a salutary principle of our law that the accused person bears no onus to prove anything.

The trial court appears to want him to come to court and account to the complainant how he used the money that he received. Yet, it is common cause that he was entitled to receive the money and was also entitled to use it.

This lends weight to the argument that this may well be a civil dispute where no criminal case may have been established.

It is also common cause that the dispute between the parties was also pending in this court as a civil matter, in HC1722/12, and that the parties signed an agreement resolving the same dispute.

In my view, the reasoning of the magistrate, in response to the application for discharge, goes beyond mere faultiness or otherwise of the decision. It also relates to the method of the trial, where an accused person is put to his defence not because a prima facie case has been established but merely to account to his partner.

It is prejudicial to an accused person to perpetuate a trial for that reason.

In light of that, I am prepared to exercise my power to interfere with the criminal proceedings, even though un-terminated, in order to afford the applicant the opportunity to explore a review of the validity of that decision.

As stated in Mukwemu v Magistrate Sanyatwe N.O. and Another HH765-15…, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors.

What the trial court did in this matter, in requiring the applicant to render an account, equates to what confronted MAFUSIRE J in S v John 2013 (2) ZLR 154 (H) where the accused person was put to his defence in order to “clear” his name.

In the result, the provisional order is hereby granted in terms of the draft order.

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI
Ruled By: MAKONESE J and TAKUVA J

This matter was referred to the National Prosecuting Authority in terms of section 54(2) of the Magistrates' Court Act [Chapter 7:10] with a request of either increased jurisdiction or referral to the High Court for sentence as provided for by section 225(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Upon going through the record, the Prosecutor General's office withheld its support for the conviction of the accused for fraud through the use of section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The background to this matter is that on the 13th August 2014, a Provincial Magistrate based at Bulawayo addressed a memorandum to the Registrar in the following terms:

“May you place the above record with urgency before any judge of the High Court with the following comments:

Accused appeared before me on a charge of theft; however, during the course of the trial, I realized that the evidence was pointing to fraud and I invoked section 274 of the Codification and Reform Act (sic) [Chapter 9:23] and convicted the accused of fraud.

I then referred the record to the Prosecuting Authority (sic) in terms of section 54(2) of the Magistrates Court Act [Chapter 7:10] where it was declined to proceed in terms of the section.

I therefore write seeking for guidance and I have also attached the Prosecuting Authority's view in respect of my referral.”

On receiving the record, I observed that the matter involved interesting aspects of law and therefore invited the National Prosecuting Authority and the legal practitioner for the accused person to submit written submissions.

I am indebted to both State and defence counsel who took time to explore the authorities on the matter to assist the court in arriving at an appropriate decision.

It is abundantly clear that the learned magistrate was in a legal quandary which could only be untangled by a proper application of the law. The learned magistrate was in an invidious position.

The Facts

The accused person appeared before the magistrate facing a charge of theft as defined in section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The brief allegations are that the accused sold Dandy products to customers on a credit basis during the time of his employment at Dandy Zimbabwe in Bulawayo and converted a total sum of US$44,336=42 to his own use.

The accused had raised fictitious invoices purporting that the company was owed money by various customers in order to cover up the offence. The offence was discovered by a Private Investigator who was hired to look into the activities of the accused. At the relevant time, the accused was employed by Dandy Zimbabwe as a Sales Representative.

The accused, who was legally represented at the trial, denied the allegations throughout.

The State led evidence from five witnesses. The accused gave evidence, and, at the end of the trial he was found guilty.

The accused was however found guilty of fraud and not guilty of theft. The learned magistrate sought to rely on the provisions of section 274 of the Criminal Law (Codification and Reform) Act.

The learned magistrate then referred the matter to the Prosecutor General applying for increased jurisdiction on the sentence she intended to impose.

The National Prosecuting Authority did not support the application for increased jurisdiction on a point of law and hence the referral of the matter to this court.

Analysis of the Law

Section 274 of the Criminal Law (Codification and Reform) Act provides as follows:

“Where a person is charged with a crime the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he or she committed the crime charged.”

It is noted that the above section is similar to the Republic of South Africa section 270 of the Criminal Procedure Act No.51 of 1977 which states:

“If the evidence on a charge for any offence not referred to in the preceding sections of this Chapter does not prove the commission of the offence so charged, but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.”

I agree with the State's reasoning that the two sections were put in place by the legislature to provide for situations whereby the accused committed an offence which is not a competent verdict or charged in the alternative but whose essential elements are encompassed in the offence charged. The accused may be found guilty of the proven offence whose essential elements are found in the offence for which the accused had been charged.

The position is well canvassed in a number of South African decisions and is well established in the following decisions:

S v Anias 1995 (2) SALR 735 (A); S v Mei 1982 (1) SA 299 (O); S v Kuvare 1992 (2) SALR 180 (NM); S v Mavundla 1980 (2) SA 187 (7); and S v Nyamza and Another 2000 (1) SALR 626.

In casu, the accused was charged with theft but was convicted of fraud.

Not all the essential elements of fraud are found in the theft charge. In particular, the element of misrepresentation is not found in the charge of theft.

The learned magistrate clearly erred and misdirected herself when she sought to rely on the provisions of section 274 of the Criminal Law (Codification and Reform) Act in finding the accused guilty of fraud.

She could not do so in terms of the law.

It is instructive to note that section 113(4) of the Criminal Law (Codification and Reform) Act is peremptory in its application when it provides that:

“For the avoidance of doubt, it is declared, that, where a person, by means of a misrepresentation as defined in section one hundred and thirty five, takes any property capable of being stolen, intending to deprive another person of the ownership, possession, or control of the property, the competent charge is fraud and not theft.”

It is clear that in accordance with the above provision there can be no doubt the learned magistrate could not lawfully resort to the use of section 274 of the Criminal Law (Codification and Reform) Act in finding the accused guilty of the offence of fraud instead of theft as she sought to do.

Disposal of the Matter

In the circumstances of the matter, the learned magistrate should have referred the matter to the Prosecutor General in terms of section 54(1) of the Magistrates Court Act so that the Prosecutor General would have resorted to the provisions of section 225(a)(iii) of the Criminal Procedure and Evidence Act.

The current status of the trial is that it has not run its full course as envisaged under section 54(1) of the Magistrate Court Act. The learned magistrate had not pronounced her sentence, and, therefore, this court is still at large, in a review matter, to either confirm, vary, or set aside the conviction.

The issue of autre fois convict does not, in any event, arise because this court is not confirming the conviction which occurred as a result of a misapplication of the law.

In terms of section 29(2)(i) of the High Court Act [Chapter 7:06], I am satisfied that the proceedings in the court a quo are not in accordance with real and substantial justice and that the conviction cannot stand.

I am alive to the fact that the accused is entitled to a speedy trial. In the same breath, the accused is entitled to a fair trial which accords with all the notions of justice and fairness.

In the result, I make the following order:

1. The conviction is hereby quashed and set aside.

2. The matter is hereby referred to the Regional Court for a trial de novo on the appropriate charge.

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

Competent verdicts to a charge under section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Abuse of Duty as a Public Officer) are bribery, theft, and extortion.

View Appeal HH231-14 : ROBERT GUMBURA vs THE STATE
Ruled By: MUSAKWA J

Possession of a thing entails physical control of that thing and an intention to exercise control for oneself or another. In this respect see S v Masson 1982 (1) ZLR 216 (SC) and S v Ndiweni 1983 (2) ZLR 49 (H)....,.In R v Mackay 1964 R N 51 ...

HB119-20 : TINASHE KAMBARAMI vs THE STATE
Ruled By: MAKONESE J and MABHIKWA J

The appellant appeared before a Magistrate sitting at Tredgold, Bulawayo facing a charge of contravening section 113(1)(a) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He pleaded guilty to the charge and was convicted and sentenced to pay a fine of $80, in default of payment 18 days imprisonment. The appellant was not legally represented at the trial.

He now appeals both against conviction and sentence.

The State does not support the conviction and sentence and concedes that the conviction and sentence cannot stand.

It is our view, that, the concession is indeed proper.

Background

The brief facts surrounding this matter, as gleaned from the State Outline, are as follows:

In August 2017, the appellant assigned the complainant to undertake some work at his business premises. The appellant advised the complainant to leave his tools inside his offices in a safe, under lock and key.

When the complainant turned up to resume work at the appellant's premises the following day he discovered that an electrical extension cord was missing.

The appellant admitted having taken the extension cable and promised to return it.

The appellant apparently failed to replace or return the extension cord. The complainant reported the matter to the police leading to the arrest of the appellant. The extension cable was valued at $74.

It is on these facts that the appellant was arraigned before the court a quo facing a theft charge.

In his Notice of Appeal, the appellant argues that the court a quo erred in returning a guilty verdict when the appellant had raised triable issues in the process of the recording of the plea.

In this regard, the appellant contends, that, he alerted the trial Magistrate that he had permission to take the complainant's property.

This issue was never explored by the trial court.

The appellant further argues, that, the court a quo misdirected itself by returning a verdict of guilty without satisfying itself on the genuineness of the plea of guilty that was being tendered by an unrepresented accused.

The learned Magistrate, it has been argued, did not comply with the peremptory provisions of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07].

It is necessary to indicate, that, the provisions of 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] are to be followed in all cases to ensure that, before a guilty plea is entered, the court is satisfied that all the essential elements of the charge have been put to the accused and that he understands them.

This provision must not be taken lightly or casually by trial magistrates as this is the whole purpose of the plea recording procedure.

For the avoidance of doubt, the court shall restate the provisions of section 272 of the Criminal Procedure and Evidence Act which are in the following terms:

“If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed:

(a) Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

(b) Is not satisfied that the accused has admitted or correctly admitted the essential elements of the offence or all the facts or omissions on which the charge is based; or

(c) Is not satisfied that the accused has no valid defence to the charge;
the court shall record a plea of not guilty and require the prosecution to proceed with the trial.”

In the present case, the appellant had this exchange with the trial Magistrate before the guilty plea was entered:

“Q. Correct that you took one extension code without his permission?

A. Yes.

Q. What was your intention in taking it?

A. To use it, my employee needed it.”

The court put the further question to the appellant:

“Q Any right to take it without his permission?

A. Yes.”

The responses by the appellant should have triggered the court into enquiring further into the genuineness of the appellant's plea.

The court ought to have observed that there were material contradictions in the answers which were being given by the appellant. The court needed to satisfy itself that the admission of guilt was unequivocal, genuine, and unqualified.

The court, clearly, in our view, erred in taking a cursory approach to the plea recording procedure, resulting in the conviction of the accused.

It must be noted, that, even during mitigation, the appellant raised something which should have alerted the Magistrate to the fact that the plea was not genuine. The appellant stated the following:

“We ended up using the cable since accused left his tool box behind. I had requested to replace the cable. But the complainant kept changing the price.”

The explanation given in mitigation of the appellant left a lot of unanswered questions as to what had really transpired.

It is our view, that, the trial Magistrate ought to have assisted the unrepresented accused as he appeared to have been raising a defence to the charge.

It is trite law, that, when an accused person pleads guilty to an offence and then goes on to deny an essential element of the offence charged, the court must proceed to alter the plea to one of not guilty. The matter must proceed to a full trial in order to canvass the issue of criminal intent: see State v Chirodzero HH14-88.

In the case of State v Chirodzero HH14-88 REYNOLDS J emphasized that the court must constantly bear in mind the dangers inherent in convicting persons upon guilty pleas. Magistrates must do everything in their power to ensure that injustice does not occur. A trial Magistrate must ensure that the guilt of the accused is established both in fact and law. The accused must admit all the essential elements of the charge before a plea of guilty is entered.

In State v Samson Phiri HB133-17, this court remarked that:

“It was therefore unnecessary and totally uncalled for and indeed inappropriate for the learned trial Magistrate to extract an admission of guilt from the unrepresented accused. Once the accused has given answers that show that the plea of guilt is not unequivocal, then, the matter is supposed to end there. The matter must proceed to trial.”

These remarks apply with equal force in this matter.

The appellant indicated that he believed that he was authorized to take the electrical cable or that he had the right to take it.

In essence, the accused's responses to questions put to him by the court clearly revealed that he was proffering some defence.

His mental intention to steal the property and to deprive the owner permanently was not established.

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

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

FACTUAL BACKGROUND

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

He pleaded not guilty and thereafter trial ensued.

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

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

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

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

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

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

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

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

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

The court a quo dismissed the bail application.

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

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

ANALYSIS OF THE FACTS AND THE LAW

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

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

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

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

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

The principle is therefore well established.

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

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

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

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

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

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

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

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

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

In casu, there is overwhelming evidence against the appellant.

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

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

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

The concept of possession is discussed in Volume II Common Law Crimes: South African Criminal Law and Procedure by PMA HUNT.It is said, at 733, that –“1. Physical AspectX does not need to handle the property physically in order to assume custody and control. If, on his orders, it is ...

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

An integral part of the adjudication process is the exercise of discretion. It is done judiciously.

Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role.

There are many instances when the court is called upon to exercise its discretion. But, it is mostly in sentencing, in criminal matters, that that function is so pronounced.

Ordinarily the doctrine of stare decisis ensures, that, like cases are treated alike. In appropriate situations, a precedent set in one case should be followed in all other subsequent cases of a similar nature. But, this is only to a degree. Every case is judged in accordance with the peculiarities of its own facts and circumstances; and strictly speaking, there are no two cases that are exactly alike.

That is why, in sentencing, for example, penalties may differ from case to case despite the similarities on the face of them. It is because of the subtle differences that may exist between seemingly similar cases and the exercise of judicial discretion by the trial court.

Because of that, the Appeal Court or Review Judge, exercises the greatest of restraint before interfering with the decision of the lower court. There are times when the Appeal Court or Review Judge feels that he could have imposed a different penalty from that of the trial court, but, nevertheless, refrains from interfering because of the realisation that the lower court is reposed with the power to exercise its own discretion. Only in instances where the exercise of that discretion by the lower court was not judicious would the Appeal Court or Review Judge interfere.

This particular case is a good example of an injudicious exercise of discretion.

It was an ordinary case of unlawful entry and theft. The accused was 21 years old. He “broke into” the complainant's residence. He did not “break in” in the sense of using force to break down any barrier. He simply pushed open the door and walked in. It was unlocked.

That was Count 1: “Unlawful entry into premises” as defined by section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Inside the complainant's residence, the accused stole 5 kilogrammes of mealie meal, a pack of potatoes, a t-shirt, and a pair of shorts. The total value of all the items stolen was $53. The short was recovered. It was worth $10. Thus, $43 was the actual value of the prejudice to the complainant.

That was Count 2 of the charge: “Theft” as defined in section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

The accused pleaded guilty to both counts. He was duly convicted. The conviction is proper. It is hereby confirmed.

On sentence, the trial court took both Counts as one.

The accused was sentenced to 16 months imprisonment; 4 months were suspended for 5 years on the usual condition of good behaviour; a further 2 months were suspended on condition the accused paid the complainant $40 restitution (it should have been $43).

That left him with an effective 10 months imprisonment.

An effective 10 months imprisonment for unlawful entry into premises and theft of items to the value of $53 seemed unduly excessive.

Ordinarily, offenders in similar circumstances escape with community service.

So, the record attracted my attention. I sought to find out what it is that had led the trial court to be so harsh. What could have been the peculiar circumstances of the case?

I found nothing other than plain misdirection by the court. Below are the details.

The accused was a first offender. The trial court made no mention of this.

He was married and had one child. The trial court said nothing about this either.

He was a pushcart operator earning $60 per month on average. His savings or assets amounted to just $15 and 5 goats. Asked why he stole, he said he had no money. Asked where he had put the items that he had stolen, he said he had used/consumed them, but, that he was willing to pay compensation.

By all accounts, the accused was a poor man. He stole the food items to eat. The clothes, he wore them. It was the pair of shorts that gave him away. He was putting them on when he was arrested. He had just been 8 months in the business of cart pushing.

Poverty does not justify crime.

If you are poor and you steal to feed or clothe yourself you are offending. The law will convict you. It will judge you. It will punish you.

But, your sentence should fit you and your crime. That is where judicial discretion comes in. That, partly explains why one sentence in one case may differ from the other in another case seemingly of a similar nature.

It was clear the accused did not steal out of greed or malice. He stole out of need. The problem is that the trial court took no account at all of any of his personal circumstances. Not in the least did it comment on them. So, there is no telling to what extent its sentence was influenced, if at all it was, by the fact that the accused was a first offender; that he had several mouths to feed; that he had pleaded guilty and saved time, and, above all, that he had shown contrition by offering to pay the complainant compensation.

That was part of the misdirection by the court a quo.

The other and more serious misdirection by the court a quo is what it took into account in arriving at the sentence.

Without commenting on the personal circumstances of the accused, the trial court went straight to express what should amount to its personal prejudices or whims. It said:

“The offence of unlawful entry is a threat to the security of home owners. Burglars are dangerous criminals. For unlawful entry, even first offenders can be sent to imprisonment. It's an offence which takes so much courage to commit. The complainant lost $40 worth of goods. It was only out of good fortune that he lost less. But, this does not take away the fact that accused must be sent to jail.”

The next bit of the court's judgment is rather shocking.

The accused was sent to prison because the court thought the approaching festive season would be so tempting for him as to re-offend. It said:

“The approach of [the] festive season is a time where most homes will be left unattended. During the festive season, the accused must be away from the neighbourhood. The court simply feels imprisonment is the most appropriate sentence.”

There is no principle like that.

It was wrong for the court to allow itself to be influenced by such a consideration, especially given, that, neither had there been any evidence of such placed before it, nor of the prosecutor having made such a submission.

Ordinarily, community service is to be considered in appropriate cases where the court imposes an effective prison term of 24 months or less.

The court a quo did consider it.

But, it ruled against it for reasons alien to precedence. The court thought community service is for immature juvenile offenders only. It said:

“I would have considered community service had the accused been 18–19yrs old. At the age of 21, the accused could not be said to be immature.”

That was wrong.

Community service is not determined by the age of the offender. Courts should follow precedence.

In conclusion, the court went back to its favourite theme of the approaching festive season. It said:

“The court has also taken note of the prevalence of the offence in this district. Deterrence is called for. Accused must be removed from society during this festive so that homes and homeowners property are safe; the accused may repeat offend during this festive season which is a tempting period for burglars.”

The wrongness of such an approach sticks out. There is no need to belabour the point. It is hoped the court a quo learns something from this.

Its sentence in this matter has to be quashed.

Even the sixteen months was excessive to begin with.

Admittedly, Count 1 (unlawful entry into premises) was committed in aggravating circumstances in the sense, that, the accused entered a dwelling house (section 131(1)(a) of the Code, as read with subsection (2)(a)) and that he committed some other crime, theft (section 131(1)(a) of the Code, as read with subsection (2)(e)).

The Criminal Law (Codification and Reform) Act (the Code) prescribes a sentence of a fine not exceeding level thirteen ($3,000), or not exceeding twice the value of any property stolen, destroyed, or damaged by the accused (in this case, $43), whichever is the greater; or imprisonment for a period not exceeding 15 years, or both.

For Count 2 (theft), the prescribed penalty is a fine not exceeding level 14 ($5,000), or, twice the value of the property stolen, whichever is the greater, or imprisonment for a period not exceeding 25 years (section 113(1) of the Code).

However, the court is empowered to suspend the whole or any part of the sentence of imprisonment on condition that the accused restores the property stolen by him or pays the complainant compensation.

In its discretion, the court a quo treated the two Counts as one for the purposes of sentence. It could properly do that.

Admittedly, the top ends of the prescribed penalties for both of these offences are very heavy. But, that is to cater for all the possible ranges of unlawful entry and theft.

Prison should not have entered the court's mind.

One cardinal principle of sentencing is to keep first offenders out of jail where possible, especially youthful ones such as the accused was.

And, as pointed out above, the court had the discretion to suspend the whole of the sentence for theft on condition of restitution.

Furthermore, where a statute allows the payment of a fine for an offence should be the starting point for the court.

Having combined the two Counts for the purposes of sentence, and given the value involved, and given all the other mitigating circumstances such as the accused's age; his family responsibilities; the fact that he pleaded guilty; that he was a first offender; and the contrition that he showed, the appropriate sentence should have been no more than 6 months imprisonment, with 3 suspended on condition of good behaviour, 2 suspended on condition of restitution and the remaining 1 month converted to community service.

Up to the time of this judgment, the accused had already served a month of his sentence. He should be entitled to his immediate release.

In the circumstances, it is hereby ordered and directed as follows:

(i) The conviction of the accused is hereby confirmed.

(ii) The sentence of the court a quo is hereby quashed and substituted with 6 months imprisonment, of which 3 months imprisonment is suspended for 5 years on condition that within that period, the accused is not convicted of an offence involving unlawful entry into premises, or dishonesty for which upon conviction he is sentenced to a term of imprisonment without the option of a fine. A further 2 months imprisonment is suspended on condition that the accused pays the complainant restitution in the sum of $43 within 30 days of the date of this judgment.

(iii) Having already served one month of the prison sentence, the accused is entitled to his immediate release.

(iv) The court a quo is hereby directed to summon the accused and put into effect the aforesaid altered sentence.

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J

The 19-year-old accused, who was a first offender, was convicted of contravening section 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to theft.

The agreed facts are that on 21 August 2019, at around 0300 hours, the 41-year-old complainant was involved in a road traffic accident at the 37km peg along the Chivu–Gutu road and got seriously injured. The accused, and one Jonathan Chikoromondo, witnessed the accident and rushed to the scene. The accused did not help any of the injured persons. Instead, the accused and his colleague, Jonathan Chikoromondo, opened the driver's door and stole US4,200= which they later shared.

Nothing was recovered.

The accused was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of good behaviour leaving an effective prison term of 18 months.

What pricked my judicial conscience is the fact that the 19-year-old accused is not only a youthful, first offender, but, is currently in Form Four at Chiriga Secondary School.

The implication of an effective prison term is that the accused is no longer attending school thus ruining his future. Currently, other pupils are busy writing their examinations.

There is no doubt that the accused's moral blameworthiness is very high. The accused exhibited a very high degree of cruelty. He decided not to help the injured complainant but to steal the money. Such conduct is immoral and deserves censure.

Be that as it may, some degree of leniency was required.

The accused is a youthful first offender. He is no longer attending school as he was incarcerated. There was an element of sudden temptation when he saw the cash.

It was not probed as to where exactly the cash was in the motor vehicle. It is not clear how much the accused got as his share of the loot. The trial court did not inquire as to how the accused used the money.

It is not clear as to who is older between the accused and Jonathan Chikoromondo in order to exclude the possibility of peer pressure.

The trial magistrate concedes, that, he did not carry out a proper inquiry into all these factors to enable him to properly assess the sentence.

This constitutes a misdirection.

Further, the sentence of 24 months imprisonment is rather severe in view of the accused's age, the amount involved, and other mitigatory factors.

This matter calls for my immediate intervention to enable the accused to continue with his education.

I shall direct the trial magistrate to immediately call the accused from prison and to carry out a proper inquiry into community service and sentence the accused to a sentence of community service.

The trial magistrate should take into account the period the accused has already served in prison from 9 September 2019 and also that he is attending school and possibly writing examinations in couching the community service order especially the period he would be expected to perform community service.

As he is still a school pupil, it is unwise to order restitution.

In the result, I make the following order;

1. The sentence of 24 months imposed by the trial court is set aside in its entirety and is substituted with the following;

“6 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving dishonesty for which he is sentenced to a term of imprisonment without the option of a fine.

The remainder of 3 months is suspended on condition the accused performs the equivalent hours of community service work at an appropriate institution on the usual conditions.”

2. The matter is remitted to the trial magistrate, or, in his absence, to any other magistrate to carry out an inquiry in compliance with paragraph (1) above. The period accused has already served should be taken into account in computing the hours of community service work to be performed for the 3 months.

The above order should be complied without delay to ensure the accused is not further prejudiced.

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Theft, Shoplifting and the Doctrine of Recent Possession

HH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE Ruled By: ZIMBA-DUBE J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA Ruled By: UCHENA J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA Ruled By: UCHENA J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA Ruled By: UCHENA J and BHUNU J

HB52-09 : THE STATE vs LAMECK MAROWA Ruled By: CHEDA J and KAMOCHA J

HB98-09 : MOSES NYONI vs THE STATE Ruled By: KAMOCHA J and NDOU J

HH09-10 : THE STATE vs DAVID CHIGANGO Ruled By: BERE J and BHUNU J

HB15-11 : ZWELITHINI DLAMINI and SHERMAN CARTERS vs THE STATE Ruled By: NDOU J and KAMOCHA J

HB93-11 : KASIKAYI MUNATSI vs THE STATE Ruled By: KAMOCHA J and MATHONSI J

HB132-11 : THE STATE vs GRESHAM DUBE Ruled By: KAMOCHA J and NDOU J

HB19-10 : THANDO DUBE vs THE STATE Ruled By: CHEDA J and NDOU J

HB89-10 : KUDAKWASHE MUVHAMI vs THE STATE Ruled By: CHEDA J and MATHONSI J

HB102-10 : NOMSA KANYOKA and PRICHARD NDLOVU and PHATHISANI NKALA and ANTHONY MUMBA vs THE STATE Ruled By: MATHONSI J

HB107-10 : THE STATE vs ONISMO NYENGE Ruled By: MATHONSI J and NDOU J

HB121-10 : THE STATE vs INKEN NYAMAHA Ruled By: CHEDA J

HB140-10 : MANDLA MKOMBO vs THE STATE Ruled By: KAMOCHA J and MATHONSI J

HH96-13 : CHARLES KATEWERA and PARTSON MUNAKU JONGWE vs THE STATE Ruled By: MWAYERA J

HH108-13 : KETIAS ZINGUNZI vs THE STATE Ruled By: HUNGWE J and MAVANGIRA J

HB21-11 : STATE vs NOMPUMELELO MPOFU Ruled By: MATHONSI J and NDOU J

HH13-14 : JANE SHAWO vs N. KATIYO N.O. Ruled By: MAFUSIRE J

HH206-14 : LOVEMORE DEWA vs THE STATE Ruled By: BERE J and TAGU J

HH299-14 : FIDELIS CHAUKE vs THE STATE Ruled By: HUNGWE J and MANGOTA J

HB116-14 : THE STATE vs NONSIKELELO DUBE Ruled By: MOYO J and TAKUVA J

HB12-16 : LEONARD SILUME vs THE STATE Ruled By: BERE J and MATHONSI J

HMA11-17 : THE STATE vs DOUGLAS MATHUTHU Ruled By: MAWADZE J and MAFUSIRE J

HH32-15 : PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON JUNGWE vs THE STATE Ruled By: BHUNU J and TAGU J

HB89-16 : THE STATE vs NJABULO SIBANDA Ruled By: MATHONSI J and MOYO J

HH90-15 : PASSMORE MEREKI vs THE STATE Ruled By: CHATUKUTA J and MANGOTA J

HH109-15 : THE STATE vs KILLROY ZIMBUDZANA Ruled By: DUBE J

HMA02-18 : MAVESE MAPFUMO vs THE STATE Ruled By: MAWADZE J and MAFUSIRE J

HH05-06 : NOLLAN KAWADZA vs THE STATE Ruled By: GARWE JP and UCHENA J

HMA57-18 : THE STATE vs BEN CHITALU Ruled By: MAWADZE J and MAFUSIRE J

HB169-17 : THE STATE vs EVERTON MOYO Ruled By: TAKUVA J

HH420-13 : MAZVITA EVELYN FATA vs THE STATE Ruled By: HUNGWE J and MAVANGIRA J

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE Ruled By: HUNGWE J and BERE J

HH224-15 : THE STATE vs HENRY GANDA Ruled By: MAFUSIRE J and MWAYERA J

SC36-20 : TONIC MANGOMA vs THE STATE Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE Ruled By: MATHONSI J

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI Ruled By: MAKONESE J and TAKUVA J

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

View Appeal HH231-14 : ROBERT GUMBURA vs THE STATE Ruled By: MUSAKWA J

HB119-20 : TINASHE KAMBARAMI vs THE STATE Ruled By: MAKONESE J and MABHIKWA J

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

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

HMA03-19 : STATE vs JOHANIS MUKWENA Ruled By: MAFUSIRE J and MAWADZE J

HMA49-19 : THE STATE vs TAMBAOGA DOVI Ruled By: MAWADZE J and WAMAMBO J

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HH60-12 : CHRISTOPHER NYAMUKAPA vs THE STATE
Ruled By: ZIMBA-DUBE J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

HH87-09 : THE STATE vs STANDRECH CHIRINDA AND MUKETIWA MUNEMO AND LANGTON MUROZVI AND PETER GUNURA CHASARA
Ruled By: UCHENA J and BHUNU J

HB52-09 : THE STATE vs LAMECK MAROWA
Ruled By: CHEDA J and KAMOCHA J

HB98-09 : MOSES NYONI vs THE STATE
Ruled By: KAMOCHA J and NDOU J

HH09-10 : THE STATE vs DAVID CHIGANGO
Ruled By: BERE J and BHUNU J

HB15-11 : ZWELITHINI DLAMINI and SHERMAN CARTERS vs THE STATE
Ruled By: NDOU J and KAMOCHA J

HB93-11 : KASIKAYI MUNATSI vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HB132-11 : THE STATE vs GRESHAM DUBE
Ruled By: KAMOCHA J and NDOU J

HB19-10 : THANDO DUBE vs THE STATE
Ruled By: CHEDA J and NDOU J

HB89-10 : KUDAKWASHE MUVHAMI vs THE STATE
Ruled By: CHEDA J and MATHONSI J

HB102-10 : NOMSA KANYOKA and PRICHARD NDLOVU and PHATHISANI NKALA and ANTHONY MUMBA vs THE STATE
Ruled By: MATHONSI J

HB107-10 : THE STATE vs ONISMO NYENGE
Ruled By: MATHONSI J and NDOU J

HB121-10 : THE STATE vs INKEN NYAMAHA
Ruled By: CHEDA J

HB140-10 : MANDLA MKOMBO vs THE STATE
Ruled By: KAMOCHA J and MATHONSI J

HH96-13 : CHARLES KATEWERA and PARTSON MUNAKU JONGWE vs THE STATE
Ruled By: MWAYERA J

HH108-13 : KETIAS ZINGUNZI vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

HB21-11 : STATE vs NOMPUMELELO MPOFU
Ruled By: MATHONSI J and NDOU J

HH13-14 : JANE SHAWO vs N. KATIYO N.O.
Ruled By: MAFUSIRE J

HH206-14 : LOVEMORE DEWA vs THE STATE
Ruled By: BERE J and TAGU J

HH299-14 : FIDELIS CHAUKE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

HB116-14 : THE STATE vs NONSIKELELO DUBE
Ruled By: MOYO J and TAKUVA J

HB12-16 : LEONARD SILUME vs THE STATE
Ruled By: BERE J and MATHONSI J

HMA11-17 : THE STATE vs DOUGLAS MATHUTHU
Ruled By: MAWADZE J and MAFUSIRE J

HH32-15 : PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON JUNGWE vs THE STATE
Ruled By: BHUNU J and TAGU J

HB89-16 : THE STATE vs NJABULO SIBANDA
Ruled By: MATHONSI J and MOYO J

HH90-15 : PASSMORE MEREKI vs THE STATE
Ruled By: CHATUKUTA J and MANGOTA J

HH109-15 : THE STATE vs KILLROY ZIMBUDZANA
Ruled By: DUBE J

HMA02-18 : MAVESE MAPFUMO vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

HH05-06 : NOLLAN KAWADZA vs THE STATE
Ruled By: GARWE JP and UCHENA J

HMA57-18 : THE STATE vs BEN CHITALU
Ruled By: MAWADZE J and MAFUSIRE J

HB169-17 : THE STATE vs EVERTON MOYO
Ruled By: TAKUVA J

HH420-13 : MAZVITA EVELYN FATA vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE
Ruled By: HUNGWE J and BERE J

HH224-15 : THE STATE vs HENRY GANDA
Ruled By: MAFUSIRE J and MWAYERA J

SC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

HB05-15 : THE STATE vs ADRIAN MUCHAZIVEPI
Ruled By: MAKONESE J and TAKUVA J

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

View Appeal HH231-14 : ROBERT GUMBURA vs THE STATE
Ruled By: MUSAKWA J

HB119-20 : TINASHE KAMBARAMI vs THE STATE
Ruled By: MAKONESE J and MABHIKWA J

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

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

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HMA49-19 : THE STATE vs TAMBAOGA DOVI
Ruled By: MAWADZE J and WAMAMBO J