Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

HB32-09 : EUNICE MOYO vs THE STATE
Ruled By: CHEDA J and NDOU J

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the foregoing, the conviction cannot stand.

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

HH89-12 : THE STATE vs PIKIRAI MAMBODO
Ruled By: BERE J and ASSESSORS: DAURAMANZI and MUSHUKU

From a practical point there is a very thin line between murder with constructive intent and the offence of culpable homicide but the distinction must and has always been maintained.For murder with constructive intent to be returned as a verdict the issue which must occupy the mind of the Court ...

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI
Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

The Assessors are of the view that there is sufficient evidence to convict the accused of murder with actual intent. They are satisfied by Tawanda Wairosi's evidence that the accused crushed Ronald's head with a stone.

I am, however, hesitant to agree with that finding because of the glaring difference between Tawanda Wairosi's evidence and what the State said in its outline he was going to tell the court. I am also not quite satisfied by Tawanda Wairosi's prevarications on whether or not he was left by the motor vehicle. These unsatisfactory aspects of the State's case raise a reasonable doubt which, in my view, should be resolved in the accused's favour.

In the case of doubt, it is better to let a guilty man go free than to convict an innocent man.

In the case of Simon Manyika v State HH215-02…., MAKARAU J…, commenting on the need for the State to prove an accused guilty beyond reasonable doubt said -

“On the basis of the foregoing, and being guided by the principle that it is better to let a few guilty persons go free than to convict even a single innocent person, I would allow the appeal.”…,.

The doubt I entertain would have been dispelled if Dr Mangunda or Japhet Maunzeni had confirmed that the deceased's head had an injury consistent with Detective Cst Elias Katsvere's and Detective Sgt Nhari's evidence, that he found a patch of hair on the stone, which he believed got to the stone when it was used to crush the deceased's head.

However, in terms of section 10(2) of the High court Act [Chapter 7:06]: “any question of fact arising at a criminal trial in the High court shall be decided by the majority of the members of the court.”

In this case, the Assessors are of the view that there is sufficient evidence to prove the accused guilty of murder with actual intent. In the result, the decision of the Assessors must prevail, as this is a finding of fact, which must be determined by the majority.

The accused is therefore found guilty of murder with actual intent.

HB343-16 : THE STATE vs JOHANNES MOYO
Ruled By: MOYO J

The accused person in this matter faces a charge of murder. It being alleged that on the 25th of May 2002 the accused person, together with his accomplices, fatally assaulted the deceased, Japhet Sithole.

The State Summary was admitted and marked Exhibit 1. The Defence Outline was also admitted and marked Exhibit 2. The accused's confirmed warned and cautioned statement was admitted and marked Exhibit 3. The post mortem report was admitted and marked Exhibit 4. The knife that was allegedly used to stab the deceased was marked Exhibit 5. The defence produced a knife that was allegedly used to stab the accused and was marked Exhibit 6.

The facts of the matter are largely common cause.

The accused and his accomplices were drinking beer at Ndabankulu Bar in Kezi on the fateful day. Also present were some other patrons. The deceased walked in carrying a hammer; the evidence of some of the witness accounts, namely, Nkanyiso Ndlovu, as it appears in the State summary, shows that the deceased intended to hand over the hammer for safe keeping with the bar lady.

The accused person, and his two accomplices, were riled by the deceased's conduct and they took issue with him, resulting in the accused person snatching the hammer from the deceased, and, later, the accused's brother, the first State witness, Raphael Moyo, also snatching the hammer and giving it to the bar lady. A scuffle ensued as the deceased was assaulted by the accused and his friends and dragged outside the bar. While outside, the accused screamed to say he had been stabbed by the deceased. His two accomplices chased after the deceased and caught up with him; started assaulting him while he lay on the ground. The accused person followed to where the deceased was and stabbed him five times in the chest and abdomen as evidenced by the post-mortem report.

The evidence of Nkanyiso Ndlovu, Saziso Moyo, Sinanisile Dube, Denias Sibanda and Dr S Pesanai was admitted into the court record as it appears in the State summary in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The accused person, in his Defence Outline, pleads provocation in that he had an altercation with the deceased which ended and then, later, the deceased just stabbed him as he went out of the bar for no reason whatsoever. He states that he committed the offence in anger since the deceased had stabbed him.

The postmortem report gives the cause of death as haemorrhagic shock, multiple stab wounds, assault.

The totality of the evidence before us leads us to make the following conclusions:

(1) The deceased quietly walked into the bar carrying a hammer; he did not confront anyone. It is the accused person and his accomplices who decided to act out of character and confront the deceased for no apparent reason whatsoever. Carrying a hammer is not an offence and the deceased, as it would appear from Nkanyisso Ndlovu's evidence, intended to give it to the bar-lady for safekeeping.

(2) The accused person, although in court he sought to underplay his role in the confrontation of the deceased and the scuffle that ensued, the admitted evidence of Nkanyiso Ndlovu is clear in this respect and I quote at page 4 of the State summary:

“The accused confronted the deceased over the hammer, the deceased explained that he had not come with the hammer to fight anyone but wanted to hand over to the bar lady for safe keeping.”

It is also Nkanyiso Ndlovu's evidence that the accused's accomplices hit the deceased who then fell down and then the accused person pulled him outside the bar. Raphael Moyo intervened to stop the fight; after a short while, the accused person and his accomplices resumed their assault on the deceased. The witness heard the accused screaming that he had been stabbed by the deceased. The deceased ran away. The accused's accomplices chased after the deceased; they then called out that they had caught the deceased. The witness ran to the scene and found the two accomplices assaulting the deceased with fists and booted feet. The accused also arrived at the scene and joined in assaulting the deceased.

The accused person, in his confirmed warned and cautioned statement, which he gave while his memory was still fresh, confirms that he accosted the deceased for carrying the hammer, and was not happy about the deceased's response then he stood up and tried to take away the hammer wherein a scuffle then ensued.

It is not in dispute that the accused stabbed the deceased, as alleged, on the day in question thereby causing his death.

It would appear counsel for the accused, in her closing submissions, tried to plead provocation as a partial defence to murder. She referred to the accused person being in a fit of rage and therefore that he should be convicted of the lesser charge of culpable homicide.

The evidence in the court record, as given by the accused person himself, does not support this contention by defence counsel. In fact, during cross examination, the accused was asked the following questions;

“Q: Did deceased talk to anyone?

A: No.

Q: He never provoked anyone?

A: No.

Q: You were never provoked in any way by the deceased?

A: No.

Q: So your attack was unwarranted as you were never provoked?

A: I agree.

Q: You did an unnecessary brutal attack on the deceased?

A: I was drunk.”

I formulated the opinion that counsel for the defence kept on referring to a fit of rage meaning that after stabbing the deceased, the accused then went into a fit of rage and thereby committed the offence.

I will hasten to state that although an accused person does not need to prove the truthfulness of his defence, it still has to be found by the court to be reasonably possibly true.

The deceased never fought with the accused person and his accomplices, as per the witnesses who were present - including the accused's own brother.

The whole chain of events took about 5-7 minutes according to Raphael Moyo (the accused's brother); meaning, it would be very difficult, if not possible, to accommodate the initial scuffle inside the bar, which then ended and a subsequent scuffle following after the accused had gone out to relieve himself. The time span simply does not accommodate the accused's version; also, the behaviour of the deceased on the day in question, as given by the witnesses, and the accused person himself, is inconsistent with the attack on the accused with a knife.

Again, no one saw any injuries on the accused person, including his own brother with whom he subsequently went home. Neither was blood seen on the accused's clothes, as per Egnat Moyo's testimony.

Egnat Moyo says there was moonlight on the day in question. It is for these reasons that the court is inclined to dismiss the fact that the accused was indeed stabbed by the deceased as he alleges.

However, since he was indeed heard screaming that he had been stabbed, we will still proceed to analyse his defence of provocation as if indeed he had been stabbed by the deceased.

HB296-16 : THE STATE vs EFESU CHIKONDO
Ruled By: MOYO J and TAKUVA J

In this matter, the accused appeared before the magistrate sitting at Beitbridge charged with three counts of robbery in contravention of section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was convicted after a full trial.

The accused was sentenced to 4 years imprisonment with 1 year imprisonment suspended on the usual conditions.

The facts of the matter are that on 11 March 2016 at around 16:00 hours, and at Limpopo River, Beitbridge, the complainants were trying to cross the river going to the Republic of South Africa. The complainants met the accused person who was in the company of four others who are still at large. The accused persons wielded knives and threatened the complainants to surrender all the cash and valuables they had. The accused forcibly took R450 from complainant No.1; a Nokia E63 cellphone from complainant No.2; 600 rands from the third complainant; and a Nokia Asha 201 cellphone from the fourth complainant.

On 4 March 2016, the accused person was apprehended by the complainants at Limpopo Dam after they positively identified him facially.

In his defence to the charges, the accused person told the court that on 11 March 2016 he met some Somalians who wanted to cross illegally to the Republic of South Africa. He took them to the river. He met Shorty at Total garage. He was with two of his colleagues, with their (Shorty and his colleagues) assistance, they took the Somalians to the river. The person who gave the accused person this task promised to pay him his dues once the Somalians were in the Republic of South Africa. After crossing the river, the accused person handed the Somalians to the person and the person paid him; he then shared the money with the complainants and they complained that the money was not enough. The accused and the complainants then quarreled over the issue. The accused then fled. When he went back to the river, at a later date, to check on the water levels, he then met the complainants and they demanded their money. He handed them the money he had and they said it was too little. They severely assaulted him. The accused then requested that they take him to his uncle's place so that he could give them the money they wanted. He said he took them to his uncle's place deliberately so that he could get help.

At his uncle's place, he demanded to know why they had assaulted him. They offered to take him to the hospital. He threatened to report them for assault; they then tied him and took him to the police station.

At the police station, the accused explained that they had assaulted him and they alleged that he had robbed them. He was then arrested.

The learned magistrate, faced with these two versions from both the State and the accused, simply chooses, in her judgment, to ignore the version as given by the accused person and adopts the State version. She does not even show why the accused's version should be disbelieved in favour of the version by the State.

The judgment, in essence, is not reasoned at all; for proper reasoning of a judgment involves the sifting of facts and the elimination of chaff and the justification by the court as to why it finds one version true as opposed to the other.

By the way, the accused person does not even have the onus to prove the truthfulness of his defence. He just needs to come up with a version that meets the test which is that it must be reasonably possibly true, cannot be dismissed as being unreasonable, impossible, or untrue.

I do not hold the view that this can be said of the accused's version.

If an accused person gives some explanation in his defence, he must be acquitted even if the court is not satisfied that his or her explanation is true if, nonetheless, the explanation might reasonably be true. Refer to the Judges Handbook for Criminal Cases by Professor G. FELTOE, 5th edition, 2009…,.

In the case of S v Makanyanga 1996 (2) ZLR 231 the court summed up this issue as follows:

“A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of the criminal complaint; but, the fact that such credence is given to the testimony of the complainant does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the Bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and an accused disbelieved - it demands that a defence succeeds wherever it appears reasonably possible that it might be true.”

The accused person in this matter gives a sound version of what transpired between him and the complainants; the deal in assisting people cross the river to the Republic of South Africa; how the deal turned sour when the complainants were disgruntled with the issue of sharing the money; how he then fled; and how he then met them at a later date resulting in him being assaulted by them; him promising to give them money at his uncle's house; and him threatening to report the assault to the police resulting in the complainants trumping up the robbery charges.

The court could not dismiss such an explanation for there is absolutely no ground in the court record allowing such a dismissal which is why the learned magistrate avoids that issue altogether.

The learned magistrate simply preferred to regurgitate the version of events as given by the State witness and did not show why she prefers it as against the accused's version.

The reason for this is simple.

The accused's version would be very difficult to throw away if she were to assess it in accordance with the principles as given in our law - it simply could not be dismissed as a non-event.

In our law, the court cannot simply choose to adopt the version of the State witnesses in its judgment without giving reasons why it is choosing to do so, and also without giving reasons why the accused's version is being thrown away by it.

It is for these reasons that I find that the conviction of the accused person is unsafe; it cannot be held that the State indeed proved its case beyond a reasonable doubt as against the accused person, for his version stands in the court record and creates a doubt in the State case which entitles him to be set free as the allegations against him have not passed the yardstick of proof beyond a reasonable doubt.

I cannot, as a result of these findings, certify these proceedings as being in accordance with real and substantial justice. I accordingly make the following order:

(1) The conviction and sentence by the court a quo are quashed.

(2) If the accused had paid any restitution, he is entitled to be refunded his monies by the Clerk of Court.

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

The accused persons are facing a charge of murder in that upon or about the 6th and 7th day of March 2011, and at Zimbabwe Republic Police, Sauerstown, Bulawayo, in the province of Bulawayo, Accused 1 and 2 did wrongfully, unlawfully and intentionally kill and murder Samson Ncube, a male adult in his lifetime there being.

The facts, as captured in the summary of the State, are as follows:

Both accused persons are police officers residing and working at Sauerstown Police Station. The deceased, one Samson Ncube, and four of his friends, were arrested and detained at Sauerstown Police Station for malicious damage to property on Saturday the 5th day of March 2011. The two accused persons were then assigned this case for further investigations.

During investigations, the two accused persons took turns to assault the deceased with a fan belt and a baton stick, causing the deceased to confess to the charge of malicious damage to property. Subsequently, on 8 March 2011, the deceased was taken to court where he was remanded to the 11th of March 2011 in order to allow him time to look for money to restitute the complainant. The deceased died on 10 March at his family residence, Number 4 Churchil Crescent, Richmond, Bulawayo. The body of the deceased was conveyed to United Bulawayo Hospital for post mortem examination and the results showed that the deceased died from:

(a) Intracranial haemorrhagic.

(b) Head injury.

(c) Assault.

Both accused persons pleaded not guilty to the murder charge.

Accused 1 denied assaulting the deceased with a fan belt or a baton stick as alleged. He stated that he does not know what killed the deceased as he never inflicted the injuries that culminated in the death of the deceased as indicated in the postmortem report.

The second accused denied being part of the investigating team involved in the deceased's case. She also denied assaulting the deceased but admitted being on standby at the police station on the 6th of March 2011.

The Issues

The following are the issues that fall for determination:

1. Whether or not the deceased was assaulted whilst in police custody?

2. If so, who is or are, the assailants?

3. Whether or not there exists a nexus between the assault and the deceased's death?

4. Whether or not the accused persons intended to kill the deceased?

The Evidence

The State led evidence from six (6) witnesses.

Anderson Phiri, who is the deceased's step-father, gave evidence that is largely common cause. He told the court that, on 6 March 2011, he received information that the deceased had been detained at Sauerstown Police Station on allegations that he had damaged someone's motor vehicle. On 8 March 2011, he arrived home in the evening and found the deceased already in bed. When he spoke to the deceased about his arrest and detention, the latter indicated that they would discuss the matter the following day. The witness retired to bed and the following morning he informed Israel (the deceased's brother) that the deceased had been released. Later that morning he saw the deceased and Israel talking to each other and he left to sell his wares at nearby farms. On 10 March 2011 he saw the deceased lying in the garden. He noticed that the deceased was dead and he notified the police who took the body to the mortuary.

This witness was aged 83 years at the time he gave evidence. He got confused when it came to the sequence of events and days.

However, under cross-examination, he said he saw black marks on the deceased's wrists up to the elbow and on both thighs as if some tar had been put on him. He said the deceased told him that he had been tortured. On further examination of the deceased's body the witness said he saw some bloody froth on the mouth and that the deceased was bleeding from the back of the head.

The witness, who is now self employed said he did Standard Four in Mozambique a long time ago. He then came to Zimbabwe where he worked at Zimplough until he retired. He is now self-employed repairing scotch-carts in the neighbouring farms.

The next witness was the deceased's older brother, one Israel Ncube, whose evidence is basically that on 5 March 2011, at approximately 8:30pm, he arrived home from work and was informed that the deceased had been arrested on allegations of damaging Saungweme's car. On 8 March 2011, he learnt of the deceased's release from his wife, and, early in the morning on 9 March 2011, the deceased arrived at the witness' home.

The deceased told the witness that he was assaulted by the police using a “fan belt” all over his body. The deceased told the witness that he had been assaulted from head to toe. When asked about the offence of malicious damage to property, the deceased said he had promised to pay since he had committed the offence when he was drunk. The deceased said his body was sore and very painful from the assault.

Although the witness spoke to the deceased for approximately 30–40 minutes he did not closely examine him as he thought the assault was minor.

When it was put to him, in cross examination, that anything could have happened to the deceased between the time he saw him and the time he died, the witness denied that proposition saying the deceased was always at home during that time as he failed to do a piece job he was supposed to do. The witness said during that period, the deceased was not happy at all. The witness maintained that the deceased did not leave home from the time he spoke to him on Wednesday until his death on Thursday and that the deceased did not tell him that he had been forced to drink anything or that he had been electrocuted. None of his friends visited him during that period.

The third witness was Norman Saungweme (Saungweme) whose evidence is largely common cause. He narrated how, on 5 March 2011, his car was damaged by the deceased while driving along Falls Road in Bulawayo. According to him, the deceased threw two stones at the car. One of them hit the car near the rear right door. He made efforts to have the deceased arrested, but, when he next met his group the deceased was not amongst them. As he was driving around he met his neighbour's employee who told him that the young men he had described were staying at Castle Arms and he went to the police to make a report. Whilst there, he saw one of the young men who had been brought in on a different charge. He asked this young man for the name of the person who had stoned his car and was told that it was “Thembi”. He was accompanied by two police officers to arrest the culprits. When it dawned on them that they were all going to be arrested, they went to the deceased's room and told the witness and the police that he was the culprit. The police then arrested all five (5) of them and took them to the police station. The witness was told to return on Monday.

On Sunday evening, around 6pm, parents of the young men visited the witness in the company of his neighbour. They said they had come to apologise, but, at the same time, indicated that their children were being assaulted whilst in police custody. The witness agreed to have them released and they went to the police station where they were told to come on a Monday. He returned on Monday and he was shown all the suspects but the police said some would be released while others would go to court. The rest were released except the deceased and one Sikhumbuzo Magagula.

The first accused told him to meet them at court the following day.

At court, the deceased was given time to look for money to compensate the witness for the damages he had caused on his car. The deceased was remanded to a Friday and the witness was told to return on that day. He did, but did not see anyone. Later, he learnt that a warrant for the deceased's arrest had been issued after the deceased failed to appear in court. In the afternoon, he received a message on his cellphone to the effect that the deceased had died.

Under cross-examination by counsel for Accused 1 he said the deceased was walking barefoot at court and was limping. He said he tried to withdraw the charge twice i.e. on Sunday and Monday but the police, especially Accused 1, would have none of it, insisting that the deceased would be taken to court. When asked why he did not pursue his intention to withdraw the charge at court, the witness said he did not do so because he felt that the deceased was now safe.

The State called Thembinkosi Shoko next. His testimony was that he knew the deceased as his friend and they were staying together at Wingate (Castle Arms) Bulawayo. They had been drinking beer at Spar Supermarket. He was drunk. On 5 March 2011 he was walking home with his friends, who included the deceased, who was walking some distance behind. He heard as if there was a struggle or fight. He heard voices. Saungweme drove to where the witness and his friends were and informed them that the deceased had “stoned” his motor vehicle.

Later that evening, at about 22:00 hours, the witness and his friends, including the deceased, were arrested and detained at Sauerstown Police Station. The next morning (Sunday 6 March 2011) they were taken into an office where they were assaulted with a “fan belt” and button sticks by the two accused persons. The witness said it was actually a whip made of very hard and strong rubber.

The deceased admitted the charge and was taken to court.

He said he knows the accused persons as “Moyo and Mavis”, the former as the investigating officer based at Sauerstown. As regards Accused 2, he said he knew her as one of those who assaulted them and that he was told by “someone while chatting.” He further told the court that he picked up the name “Mavis” when police officers were “chatting amongst themselves using first names.”

The witness said they were assaulted “severely” and that if an identification parade had been conducted he would have been able to identify her.

He told the court that although it was known, at the time of their arrest, that the deceased was the culprit the accused persons assaulted them until the deceased admitted committing the offence. He said there were bicycles in the room and they were ordered to place their heads underneath these bicycles whilst they were assaulted on their buttocks and on the soles of their feet.

Asked where he picked the name Mavis from, the witness could not say apart from saying it was not in this room where they were assaulted.

He said they were assaulted while lying on their stomachs abreast each other. The deceased was also in this posture in a line. The witness said he actually saw the deceased being assaulted by Accused 1. It took the deceased a long time to admit.

Gift Nyoni was one of those arrested and detained with the deceased. His evidence was that they slept in a cell and the following day they were collected by Accused 1 who slapped him at the same time enquiring who had stoned Saungweme's vehicle.

Asked how he knew Accused 2's name, he said he learnt of her name “after the incident.” He knew her as Mutema and not by her first name.

According to him, the second accused assaulted them first and Accused 1 then thrashed them uttering the following words: “Pano panofa munhu pano” literally meaning “someone will die here”.

The witness said he took a lot of interest in Accused 2 as she is one of their assailants. He said he took note of her facial and physical features. Further, he stated that no identification parade was conducted to afford him an opportunity to identify the culprit. Prior to the incident, he did not know the accused persons' names and that he relied on his friends' version on the identity of their assailants.

Under cross-examination, the witness said they were forced to lie on their stomachs while they were being assaulted on the buttocks and on their soles for approximately 40-45 minutes. He said after the assault he had difficulties in sitting.

At court, he saw that the deceased was walking with a limp.

The State next called Malvern Van Heeden. His evidence is similar to that of the last two witnesses. He told the court that he was assaulted by two police officers whose names he “heard in the wooden room” when they were discussing them. The witness knows the accused persons as Moyo and Mutema.

Asked, under cross examination, how they were assaulted, the witness told the court that they were “made to lie on the floor on their stomachs and they took a whip and assaulted us for a long time on the buttocks”. The deceased was also assaulted. He further said his feet were sore from injuries sustained during the severe assault which he described as serious. The witness said there was a bicycle against the wall which they were supposed to support during the assault.

Asked why he did not report the assault, the witness said he felt he could not report since the accused persons were police officers. He also said no identification parade was conducted.

The State then called Biggie Ncube, the Officer-In-Charge at Sauerstown Police Station at the relevant time. His evidence was that he checked on the five suspects and no complainants were received from them. However, a relative of the deceased came to his office and told him that Accused 1 had assaulted the deceased. No identification parade was carried out because Accused 1 had been mentioned and the second accused's description was given to him. He was of the view that it was the duty of the investigating officer to carry out an identification parade.

The witness could not say who authorized the five suspects' detention and was not familiar with events that occurred at the police station during the relevant period. He, however, said there was only one investigating officer – Accused 1. As regards Accused 2, he said he was unable to tell how she became involved in this case but he understood that the investigating officer, Inspector Chirume, had carried out investigations that led to the identification of the second accused.

Elson Makono, who, in the company of Constable Calvin Mutema, attended the scene at the deceased's home, after an informant had made a report, was the next witness.

He saw the deceased's body in the garden lying facing upwards. They were not given any medical cards and they searched the house but did not find any. He looked around for physical marks or injury or foreign objects but found none; however, he noticed that the deceased's body was unusually dark. Since he had not seen any injury on the body, he concluded that it was not necessary to bring in officers from scenes of crime or homicide. However, he was instructed to complete a form for a post-mortem examination. He instructed the family to have the body ferried by a private parlour. He handed the form to officials from Family Funeral Parlour and they returned to the station.

The State then closed its case and the first accused opened his case by giving evidence in his defence.

He is an officer in the Zimbabwe Republic Police currently based at Nkulumane Police Station. He has been in the force for 13 years. He was the investigating officer in the case involving the deceased and his four (4) colleagues. He told the court that on a Sunday he took all five suspects into an office where they carried out investigationsand ordered them to sit on the floor. He then called the first one who told him that Samson (the deceased) had stoned the car. He confirmed that in that office, there are bicycles used by officers. After all five (5) had said the deceased had stoned the car he took them back to the cells.

On Monday the 7th March 2011, he took all the five suspects into the same office where he repeated the same question. After receiving the same answer, he then recorded a warned and cautioned statement from the deceased and witnesses' statements from the rest. Since he was in charge of the investigations he asked other officers to assist him. Later, he phoned Saungweme to come and identify the culprit which he positively did and left. He then released the rest of the suspects on the officer in charge's instructions after warning them to go to court the following day.

On Tuesday (8 March 2011) he took the deceased, and one Samson Magagula, to court where he left them with prison officers.

According to him, although the deceased was walking bare footed, he had no difficulty in walking.

On a Thursday, Saungweme phoned him enquiring about his money. While at work, on the same day, he heard that the person who was found dead was Samson Ncube and he unsuccessfully tried to contact Saungweme. Eventually, he sent him a message that the deceased had died.

Later, he was informed that he was a suspect on a charge of murder.

He said no identification parade was conducted.

When the State's version was put to him, he totally denied it adding that they do not use such weapons when investigating cases and that baton sticks are kept under lock and key and if one requires it, one would have to book it out. He did not know why all the three witnesses said he assaulted them as described.

Asked where Accused 2 was when he was interviewing these suspects, he said;

“While I was interviewing them, Accused 2 walked in and asked me what they were being charged with and I told her. She then went to her office in CRLO.”

According to him, Accused 2 was brought in because “she is my colleague” whose office is near his.

He said the deceased was “quiet and reserved.” The only time he spoke was in the Set Down office. He denied forcing the deceased to drink diesel or electrocuting him saying if that happened it occurred somewhere and not at the police station.

Under cross-examination, he said;

“I never assaulted them. They incriminated the deceased. They were aggrieved by being arrested yet the police knew who had committed the offence. I kept on insisting that they should tell the truth.”

Further, in answer to a question, he said;

“They were not happy to be detained; they now want to shift the blame to the police. As I was asking them, they kept on saying it was not necessary to ask them. They were not happy about how they had been treated by Saungweme. My name just came in because I was the investigating officer.”

Finally, he said the deceased was probably injured after his release by the court. He blamed the investigating officer of this case from improper handling of the case by failing to conduct an identification parade and conspiring with the witnesses to incriminate him.

The second accused also gave evidence in her defence.

She said she had been with the Zimbabwe Republic Police for 9 years. On Sunday, 6 March 2011 while on standby duties she visited Accused 1 in his office where she found the five (5) suspects sitting on the floor. She enquired from Accused 1 what charges they were facing and when told she returned to her office.

The witness said there were other officers in that office at that time.

She denied assaulting the suspects or witnessing any assault by Accused 1.

The witness said she did not know where the “suspects” i.e. the three (3) State witnesses got her first name from but she suspected they were told by the investigating officer. She admitted that although there are two Mutemas at the station, the other one is male and was not present on the day in question.

Both accused persons' legal practitioners indicated that they were calling witnesses to testify for both of them.

The first defence witness was Linda Mukhavhi who is a police officer at Sauerstown Police Station. Her evidence was that on the 6th day of March 2011 she was on standby at Sauerstown Police Station when she observed Accused 1 questioning the five (5) suspects in the office. She said they were being called one at a time. According to her, the suspects were never assaulted in that office. She claimed to have remained in that office for most of the time. Further, she said the suspects were fixing police officers for remaining in the cells for too long. Asked whether she assisted Accused 1 in any way she said;

“I witnessed the recording of the statements.”

While in that office, she said Accused 2 entered and asked what charge the five suspects were facing and she then left after Accused 1 answered her question.

The next defence witness was Felix Sangu, a police officer based at Sauerstown. He knows both accused persons as workmates. This witness' role was to accompany Accused 1 and the deceased to court where he claims the deceased did not complain to the Set Down prosecutors. He also said the deceased had no shoes, had a pair of trousers, and a vest. He did not see any injuries on the deceased who he alleged was “walking well”. The witness said earlier on Monday morning he had conducted a cell inspection and all the five suspects told him they had no complaints against the police. However, he was not able to state whether or not there were other suspects in the cells apart from the five.

The next defence witness was Goodluck Katemaire, a police prosecutor manning court on the day the deceased was placed on remand. He said due to pressure of work, they could not finalise the matter on that day, hence it was postponed to a Friday, the 11th of March 2011.

Interesting though, the witness said, contrary to the norm, the deceased was not asked by the magistrate if he had any complaints against the police. The deceased did complain mero muto to the magistrate about his treatment while in police custody. He did not see any visible injury on the deceased. Also, he said the deceased admitted the offence and promised to pay restitution to the complainant on the next remand date.

After this witness, both accused persons, who had agreed that these defence witnesses were for the two of them, then closed their cases.

Analysis

This will be done with all the issues in mind. However, specific findings will be made in respect of each issue. I now proceed to deal with them seriatum.

1. The evidence of Thembinkosi Shoko, Gift Nyoni, and Malvern Van Heerden shows that all the five suspects, the deceased included, were assaulted in police custody. They described, in detail, how they were assaulted and what weapons were used by the assailants. What was referred to as a fan belt turned out to be a “whip”. From their evidence, the assault was perpetrated in a reckless manner over a period of time.

A critical piece of their evidence is that when their parents visited them on that Sunday, they complained about the assault. They requested them to approach the complainant with a request that he secured their release from police custody. Further, the evidence of Norman Saungweme (Saungweme) corroborates that of the three witnesses in that he confirmed that the 'suspects' parents approached him pleading with him to withdraw the charges to save these witnesses from further assaults by the police.

What this means is that the witnesses told their parents that they had been assaulted by the police. They identified the complainant as Saungweme. The parents, in turn, approached Saungweme and requested him to withdraw the charges so that the witnesses would be released. If this had not happened, there was no way Saungweme would have known about the assault.

Further, the fact that Saungweme approached the police on a Sunday, with a desire to withdraw the charge, and, ultimately, having the witnesses released lends credence to this evidence.

This evidence was not challenged by the accused persons.

Indeed, Saungweme returned to the police station on a Monday resulting in the release of three of the five suspects. Unfortunately, the deceased remained in custody that Monday and was only taken to court the following day. When asked about the deceased's condition on Tuesday (the day they were taken to court) Gift Nyoni said the deceased was “walking with a limp.”

Further, the evidence of Israel Ncube, the deceased's brother, shows that the deceased was not well at all since Wednesday. The deceased never left home and was unable to carry out manual work. Also, the postmortem report shows that the deceased died of -

(i) Intracranial haemorrhagic.

(ii) Head injury.

(iii) Assault.

From the above, we make a finding that the State witnesses were credible witnesses who told the court the truth as regards the assault. We therefore make the following findings in respect of the first issue;

(a) The five suspects were assaulted in police custody by police officers.

(b) The assailants used the weapons described by the witnesses.

(c) The deceased was assaulted while in police custody.

(d) The deceased was assaulted indiscriminately.

2. The next issue is; who assaulted the deceased and the other suspects? I must point out that the proper question here is; who assaulted the deceased?

It should be noted that identification is not an issue as regards the first accused person. This is so because it was never an issue during the trial.

It is common cause that Accused 1 was the investigating officer who dealt with the deceased's case from Sunday to Tuesday when he took him to court. It is therefore out of the question that any other police officer/s could have assaulted the deceased and his friends on that Sunday. The fact that Accused 1 has not alleged that, is proof that it did not happen.

Accused 1 admitted that he interrogated the five suspects on that Sunday. He also admitted that he recorded warned and cautioned statements from them on that day. Further, he confirmed that the deceased admitted the charge of malicious damage to property to him as the investigating officer. He confirmed Saungweme's visit. He admitted that he took the deceased to court and was later informed of the deceased's death.

The three State witnesses told the court that they (the deceased included) were assaulted by Accused 1. Accused 1 denies this. Apart from Accused 1's compatriots, there were no other witnesses to the assault. All police officers who testified as defence witnesses denied witnessing the assault described by the three State witnesses.

The question is; who is telling the truth here?

We have already made a finding that the deceased and the three (3) State witnesses were assaulted in police custody. The only officer who had an interest in this matter is Accused 1. The three State witnesses said the assaults stopped after the deceased admitted the crime. It is common cause that it is Accused 1 who recorded a warned and cautioned statement from the deceased and witnesses' statement from the four suspects. Therefore, it follows that if the reason for the assault was to extract confessions, the only person who needed those confessions is Accused 1.

Unlike the State witnesses' version, which is clear on what happened to them that Sunday morning, the first accused's version is contradictory.

For example, according to him, in evidence in chief, the interview of the “suspects” did not take long that Sunday morning as the first suspect told him the deceased was responsible and he returned them to the cells. He said he then repeated the exercise on Monday and recorded statements. Yet, under cross-examination, in answer to a question as to why these suspects said he assaulted them Accused 1 said;

“As I was asking them, they kept on saying it was not necessary to ask them. They were not happy about how they had been treated by Saungweme. My name just came in as I was the investigating officer…,. I kept on insisting that they should tell the truth.”…,.

Quite clearly, Accused 1 took much longer with the suspects than he is prepared to admit. The question then becomes; how was he insisting that they tell the truth?

Also, in evidence in chief, he said;

“On Sunday I was alone but there were other officers doing other duties.”

Yet, in his warned and questioned statement he said five police officers assisted him to interview the suspects. This was repeated in the Defence Outline where these police officers were mentioned by their names.

He also said finger printing was done on Sunday while the recording of the deceased's warned and cautioned statement was done on Monday together with the recording of witnesses' statements from the rest of the suspects.

One of the defence witnesses, Constable Mukavhi, in describing Sunday's events said;

“They were called one by one and they were being asked in connection with the charge.”

Asked how exactly she assisted Accused 1, she said;

“I assisted in the recording of these statements and I would be sent on errands.”

In our view, there are numerous problems with this evidence.

Firstly, only one warned and cautioned statement needed witnessing. Secondly, and perhaps more importantly, this statement, together with witness's statements from the other four suspects, were recorded on Monday and not on Sunday. Therefore, Accused 1 was not being truthful when he said he interviewed the five suspects on Sunday in the presence of five (5) police officers.

Thirdly, Accused 2, who was mentioned in the Defence Outline as one of those who assisted Accused 1, denied ever carrying out such a role.

Constable Mukavhi lied that she assisted him on a Sunday when it is common cause that these statements were recorded on Monday.

Another officer who was said to have assisted Accused 1, one Constable Sangu, was not on duty on Sunday but reported for duty on Monday. He, however, categorically denied assisting Accused 1 during the suspects' interview.

Accused 1 did not call the remaining officers he mentioned in his Defence Outline.

In our view, Accused 1's evidence, surrounding the events of the fateful Sunday, is totally incredible. It contains falsehoods and lacks corroboration. We therefore accept the State witnesses' evidence wherever it differs with that of Accused 1.

As regards Accused 2, identification is clearly an issue.

That this was the case became apparent on 18 July 2011 when a warned and cautioned statement was recorded from her. In that statement, which is exhibit 3B, she denied having anything to do with the deceased and his friends. Notwithstanding this clear position, the investigating officer surprisingly failed to have an identification parade conducted.

It is trite law that where identification is in issue, the evidence of identification should be approached by the courts with some extreme caution. In S v Mtetwa 1972 (3) SA 767 (A)…, HOLMES JA said;

“Because of the fallibility of human observation, the evidence of identification is approached by the courts with some caution. It is not enough for the identifying witnesses to be honest; the reliability of his observation must also be tested. This depends on various facts such as lighting; visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, built, gait and dress; the result of the identification parades, if any; and, of course, the evidence by or on behalf of the accused.

The list is not exhaustive.

These factors, or such of them as are applicable in any particular case, are not individually decisive, but must be weighed one against the other in the light of the totality of the evidence and the probabilities.”

See also S v Dhliwayo and Anor 1985 (2) ZLR 101 (S)…,.; S v Ndhlovu & Ors 1985 (2) ZLR 261 (S)..,.; S v Mutondi 1996 (1) ZLR 367 (H); and S v Marado 1994 (2) SALR 410.

As regards caution, GILLESPIE J…, in S v Mutondi 1996 (1) ZLR 367 (H) said;

“Caution is not demonstrated by the mere statement that one is aware of the need for caution where the subsequent assessment shows no more than superficial comparative assessment of demeanor.

The shibboleth that the identifying witness was 'composed and remained unshaken during cross-examination' is wholly inadequate as a demonstration of caution. The uttering of any cautionary words must be supported by the demonstration in the reasoning of a cautious approach paradoxically, that utterance itself becomes unnecessary where the judgment shows alertness to the dangers concerning which the cautionary rule in question seeks to address…,.”

In casu, the State conceded that the failure to hold an identification parade leaves the possibility of mistaken identity unshaken.

The evidence of identification of Accused 2 is unclear in that all the witnesses did not know the second accused prior to that day.

Gift Nyoni, for example, said “a lady assaulted us first” before Accused 1 came and further assaulted them. Asked in cross examination why he was able to say Accused 2 assaulted them, he said “I have not forgotten who had assaulted me – it was her.”

“Q. How were you able to identify these accused persons?

A.. I did not know their names.

Q. Where did you get to know the name Mutema?

A. I was interested in the person and my friends did not forget. I came to know her as Mutema and not by her first name.”

The other State witness, one Sithembinkosi Shoko's evidence in that initially he said he was told Accused 2's name by “someone” and later said he heard the name 'Mavis' when police officers were chatting amongst themselves using first names.

Malvern Van Heerden's evidence of the identity of Accused 2 is shaky. This can be illustrated by the following exchange:

“Q. How many assaulted you?

A. Moyo and Mutema.

Q. How did you get to know them?

A. Because they assaulted me – I heard from the wooden room where we were discussing them.”

From this evidence, it is clear that there was a high degree of suggestibility. All witnesses admitted that they discussed the second accused's name amongst themselves. Some simply relied on their colleagues' memory. They obviously picked the names 'Mavis' and 'Mutema' after they had been assaulted. There is a real possibility that they were mistaken since the circumstances under which they picked up the names are murky although the rest of the circumstances are redolent with suspicion against her.

Be that as it may, one remains aware of the apothegm of the Roman man of letters of the 1st Century BC PUBLILIUS SYRIUS “Judex dam natur ubi nocens obsolvitur” (where the guilty is acquitted the Judge is condemned).

However, in casu, if blame is to be attributed for this result, it rests more justly on the shoulders of the investigating officer who did not conduct an identification parade, and, perhaps, of the State counsel who went to trial on an incomplete and inadequate docket.

The court may take comfort in another aphorism, falling from the eminent Sir WILLIAM BLACKSTONE, and one which comments itself to all:

“It is better that ten guilty persons escape than one innocent suffer.”

See also S v Shelton Vingaso and Others HH18-97.

For these reasons, we make the following findings:

(a) The State witnesses, Thembinkosi Shoko, Gift Nyoni, and Malvern Van Heedrden are credible witnesses whose testimony, as regards the identity of Accused 1, we accept.

(b) Accused 1 performed poorly as a witness and we therefore reject his evidence.

(c) Accused 1 assaulted the deceased in the manner described by the three witnesses and as shown by Israel Ncube.

(d) Accused 1 used a baton stick and a fan belt shaped like a whip.

(e) There is insufficient evidence to link Accused 2 to the commission of this crime.

(f) The State has failed to prove its case against Accused 2 beyond a reasonable doubt....,.

The second accused is found not guilty and acquitted.

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

The accused is charged with the murder of Keniard Doro. The indictment charges that on 20 January 2015, and at Hereford Farm, Centenary, the accused, acting with an intent to kill or realizing the real risk or possibility that his actions may result in death, struck the deceased several times all over his body with a knobkerrie thereby inflicting injuries from which the deceased succumbed to his death.

The accused, when asked whether he understood the charge, confirmed that he understood it.

When asked what his plea to the charge was, he said:

“I do admit the charge although I would like to explain further.”

Counsel for the accused stood up and indicated to the court that the plea by the accused did not accord with his instructions. He requested the court for leave to consult with the accused so that he could fully appreciate the accused's position.

The court granted the leave.

Counsel for the accused advised the court that he had taken instructions and explained to the accused the procedural aspects of plea recording. The court then explained the indictment to the accused and the elements of the crime of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused confirmed that he fully understood the explanation of the indictment by the court.

When asked whether he admitted or denied the charge, in the light of the explanation which he had understood, he responded as follows:

“I will deny the charge because there are certain aspects I will agree to and others which I will deny.”

The court recorded a plea of not guilty, which plea was confirmed as according with his instructions by counsel for the accused. The court also recorded the accused's explanation.

The court is required to record the statements so made in terms of section 180(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,.

The material facts alleged by the accused in his Defence Outline were as follows;

1. He denied taking part in any active act which led to the death of the deceased whom he did not know in his lifetime - albeit denying that the remains recovered by the police and said to be those of the deceased were not in fact those of the deceased....,.

The State opened its case by tendering a post mortem report as an exhibit in terms of section 278(2)(b) of the Criminal Procedure and Evidence Act.

The report pertained to the examination of the remains of a deceased person noted in the report as Keniard Doro Korekore. The remains were examined by Doctor Gonzalez, a legal medicine specialist employed by the Ministry of Health and Child Welfare. He examined the remains on 14 August 2015 at Harare Hospital after they were identified to him by Zimbabwe Republic Police details from Centenary. The doctors' observations revealed no fractures of the skull, ribs or long bones. He could not ascertain the cause of the deceased's death because only bones remained.

Counsel for the accused consented to the production of the report and it was accepted as exhibit 1.

The State led evidence from the following witnesses whose evidence is summarized hereunder.

Dorothy Simbi: Is the wife of the deceased. She testified that the deceased left home, that is Plot 13 Mukwengwere Farm, Centenary, on 20 January 2015 in the morning. He left driving his motor vehicle, a Toyota Ipsum registration No. ABL 4665. He was in the company of Shongedzai, their daughter. The deceased undertook the journey as part of his routine since he always ferried children to crèche at St Alberts. She said that the deceased relied on commuting passengers with this car for a living.

This was the last time that the witness saw her husband alive.

She last tried to call him on his phone around 10:00am but did not receive any response. The daughter, Shongedzai, who would have returned with the deceased, showed up in the evening - alone. Shongedzai narrated to the witness how she had moved with the deceased that morning. When the deceased did not show up the whole evening, something which he had never done before, she proceeded in the morning to St Alberts to make a report to the police. She also alerted members of the close family about the deceased having gone missing. Searches were carried out but the deceased was not found.

On 13 August 2015 the witness was shown some human remains by the police at Mvurwi police station. She identified the remains as those of the deceased. The remains consisted of a skeleton. She, however, identified the remains as those of the deceased through recognizing his belt and pair of cream trousers. She could not commit herself to saying that she identified the remains through a T-shirt though she mentioned it. The T-shirt had discolored. She also said that the head or skull had a jacked wrapped round it but she did not know whose jacket it was.

Under cross-examination, the witness refuted the suggestion that because the remains were just bones, she could not be certain that they belonged to the deceased. She steadfastly maintained her evidence that she identified the deceased's trousers and belt and also said that the deceased's bones were still intact, in a skeleton shape, and not just single bones....,.

The witness gave a simple narration of how the deceased left home in the morning on 20 January 2015 and was never seen alive again.

Her evidence was largely not contentious save for the issue of how she identified the remains recovered by the police as those of the deceased. She maintained her position the she identified the remains as those of the deceased through the belt which was still wrapped round the trousers which trousers was still downed by the skeleton. She identified the remains through the trousers which she said belonged to the deceased.

The items of clothing were buried together with the remains and were not available to the court. The court noted that the issue of the identification of the deceased's remains did not appear to have been an issue and was not questioned until the trial commenced….,.

Shongedzai Doro: Is the deceased's daughter and was residing at the same Plot as the deceased. She worked, and still works, as an Early Childhood Development (ECD) teacher at St Alberts Centre, Centenary.

She left home in the company of the deceased on 20 January 2015 in the deceased's motor vehicle. They were headed for St Alberts. As the vehicle got to St Alberts police station, the deceased's cellphone rang and it was on loud. The person who phoned said; 'Wave kupi mudhara (Oldman where are you now?). The deceased responded that he had already left home and that the caller should wait for him at Zororo restaurant. The caller then responded that he was already at the place.

On arrival at Zororo restaurant, the witness saw the accused. He came to the driver's window and spoke to the deceased saying that 'they were late'. The deceased then asked the accused to wait whilst he dropped the children he was carrying in the car at the bus rank. The deceased then gave the witness $100 and asked the witness to give him $10. She did so and retained $90. She disembarked from the vehicle. The deceased then told her that he had been hired by the accused but that the witness should wait for him after work so that they would return home together.

She testified that the accused, whilst sitting in the passenger seat, kept his face down and did not look up nor speak to her. When she finished work she waited for the deceased but he did not show up. Around 4:00pm she telephoned her husband who came to pick her up and they returned home. She narrated to her husband, and mother, how the deceased had left her, on hire by the accused, and taken a direction which she did not notice. This was the last time that she saw the deceased.

She was part of the team which searched for the deceased on the following day. She also sought police assistance and tried to gather information on the deceased's movements at the bus rank to no avail.

The witness identified the remains of the deceased at Mvurwi police as well as the accused whom she saw having a meal. She said that she identified the deceased through his grey hair and T-shirt with a red line which was however no longer visible.

The witness was cross examined on the attire which the deceased had been wearing on the day in question and he said that the deceased was putting on a red T-shirt with a white stripe, grey trousers and a green jacket. When put to her that her mother had testified that the deceased was putting on a cream trousers, she disagreed and reasoned that her mother could have been mistaken on account of her age. She confirmed that the skeletal remains still had a belt round it but could not commit to the belt colour as it was dirty. There was still a little human flesh around the waist line of the skeleton with the rest being bones. Some of the grey hair was on the jacket and some on the head. The witness stated that she was scared when she saw the remains but maintained that her fears were related to her failure to have a second look at the skeleton. She was however satisfied that the remains were those of her father....,.

The witness's evidence was given in a simple narration. Despite the fact that the deceased was her father, she exhibited a high degree of composure. The court was impressed with her demeanor and accepted her evidence which was not seriously challenged save with respect to the identification of the deceased….,.

Elijah Doro: Is the deceased's son and stays at 61 Avenue Haig Park. He is employed as a Research Officer by the Parliament of Zimbabwe.

On 20 January 2015, he was in Harare when he received a phone call from his mother, the first witness, who reported that the deceased had not returned home after leaving in the morning. He advised his mother to report to the police after 14 days. In the meantime, he took time off work and went to join up with other family members to search for the deceased. The searches were in vain....,.

The witness identified the deceased by his clothing, namely, a cream trousers and golf t/shirt which he had bought for the deceased in Uganda. He noted that the deceased had a jacket wrapped on his head or skull and the jacket did not belong to the deceased....,.

Tapiwa Maziti: Is a detective sergeant in the Zimbabwe Republic Police and part of the investigating team.

He accompanied the investigating officer, Sergeant Chinyani, to Nembudziya and Kadoma Police Stations following the arrest of the accused and the last witness, Evans Mupundu. This was following the recovery of the deceased's motor vehicle. The team interviewed the accused, and, thereafter, the accused elected to make indications which he did freely and voluntarily.

The accused indicated the route which he took from St Alberts and also how he, Ngonidzashe Dube and Amos Moyo murdered the deceased. The deceased's remains were recovered, on the accused's indications, covered by stones in a shallow cave. The remains were taken to Mvurwi CID and identified by the deceased's relatives. He said that a team was dispatched to Gokwe to investigate the whereabouts of Ngonidzashe Dube and Amos Moyo but the two could not be found or identified.

The accused then gave another address to which police were dispatched. The witness was then transferred to Chiredzi and did not know what the result of the subsequent investigation or follow up revealed.

Under cross examination, he agreed that the accused mentioned the involvement of his accomplices, Amos Moyo, whom he said was his brother, and Ngonidzashe Dube, whom he said was a friend. He denied that the names mentioned by the accused were Amos Dube and Ngonidzashe Sithole. He also denied that the accused mentioned that he was employed by Amos Dube, a policeman.

The indications took one and a half to two hours when the police got to the mountainous areas where the deceased's remains were found. However, the aggregate time from the time the police and the accused left the station was about eight (8) hours because most of the time was spent negotiating the roads and the place was about 150km away from Mvurwi.

The accused indicated a rented place where he said him and his accomplices were camping before meeting with the deceased. He also indicated the place where the deceased was attacked and also where the deceased's body was buried. The witness described the general area where the murder occurred as a newly resettled area, sparsely populated, with the nearest house, though unoccupied, being some 200-300 metres from the place where the deceased's body was recovered. There were also some 10 or so houses some 500m-600 metres away. The area has dense vegetation. The team did not meet any person nor see livestock during indications.

The witness denied that the deceased was assaulted by either him or anyone else.

He denied that he already had an idea of the area where the indications took place. He denied being aware of whether or not the accused's warned and cautioned statement was confirmed nor the reasons thereof. He admitted however that the accused alleged, at court, on 13 August 2015, that he had been assaulted.

He denied that the accused was denied food and said that, as a detainee, the accused was fed by the uniformed section of the police.

He denied the suggestion that he was out to mislead the court.

In re-examination, he said that he was not aware that the deceased was dead prior to indications.

On clarifications by the court, the witness testified that the remains of the deceased were located at Hereford Farm in Centenary being a place which the witness had never previously visited. Despite the suggestion by the accused's counsel that the witness was out to mislead the court, the court did not share this view. On the contrary, the evidence of the witness was clear and easy to believe.

The crux of his evidence related to indications allegedly made by the accused. The indications led to the recovery of human remains identified later as those of the deceased. It was not alleged that the remains were planted where they were found and the accused merely led to the place. It was not shown that the witness knew the place where the recovery of the remains took place prior to the accused's indications....,.

Roy Chinyani: Is a Detective Sgt in the Zimbabwe Republic police. He is the investigating officer.

He was allocated a docket concerning the missing deceased and his motor vehicle, an Ipsum, registration No. ABL 4605, on 21 January 2015. The witness interviewed Alexio Manyara and Roderick Chakabuda on 24 January 2015. They alleged that they had been offered employment by the accused as driver and assistant on 24 January 2015 but the accused just dumped them.

Roderick Chakabuda knew the accused. He alleged that he had previously stayed with him in Muzarabani. The witness later received information concerning the deceased's vehicle from Farai Doro. He teamed up with other police details and went to Nembudziya police station where he interviewed Evans Mupundu who narrated how he had been requested by the accused to drive the vehicle, and, later, paid a deposit fine for driving a vehicle without a licence. He recovered the deceased's vehicle and discovered that the accused had been released to go and collect the vehicle registration book before the vehicle could be released to him.

However, the accused did not return.

In August 2015, he was advised of the accused's arrest in Kadoma. He proceeded there and interviewed the accused under warn and caution. He then took the accused to Mvurwi Police Station for further investigations. At Mvurwi, the accused elected to make indications. The accused indicated the place where he was picked up by the deceased, the place where the vehicle failed to cross a stream, and the place where the deceased was attacked, as well the place where the remains were recovered in a shallow cave.

He said that the accused mentioned that he committed the offence with accomplices, namely, Amos Moyo and Ngonidzashe Dube. The accomplices could not be found at places where the accused gave out as their place of abode. The persons were not known.

He went to Chikurubi Prison where the accused gave him names of girlfriends of the said accomplices and where to find them so that they could assist in the location of the accomplices. The girlfriends were not located nor known.

The witness' evidence, as to the recovery of the deceased's remains, was the same as that of the last witness and no purpose will be served by regurgitating it. Under cross-examination the witness said that the belt and trousers were buried with the remains of the deceased and he did not consider it necessary to keep them as exhibits....,.

The witness gave his evidence in a straightforward manner. The evidence was not contentious. Again, the materiality of his evidence lies in the indications made by the accused...,.

The accused elected to give evidence and he took the oath.

He gave a long story in which a lot of what he stated had little relevance to his defence.

His defence, per his Defence Outline, was basically that whilst he had knowledge of the case, his involvement was peripheral or indirect because he was acting on instructions of Amos Dube, a serving member of the Zimbabwe Republic Police, who was his employer.

The evidence will not be repeated but a summary of the same will suffice.

He said that he had been employed by Amos Dube for three (3) years as a herd boy. He was told by his employer that they were going to buy cattle in Muzarabani and he was surprised. He was given a phone and directed to telephone the deceased. The deceased was known to Amos Dube. Amos Dube told the accused, on phoning him, to say that they would be going to pay lobola and would meet Amos on the way. He did connect with the deceased and met with Amos Dube and Ngonidzashe Sithole at a place called Chinyani.

It was at this place that the deceased was ordered to disembark from the vehicle, grabbed by his hands, and handcuffed. Ngonidzashe Sithole then put the deceased in leg irons. The deceased was tied to two trees whilst prostate. He called out for help but no one assisted him. He was left there.

He said that the handcuffs belonged to Amos Dube. He admitted that the three of them, with Amos driving, left or abandoned the deceased. In short, they robbed the deceased of his motor vehicle.

The rest of the evidence concerned how the trio continued to use the vehicle for their errands.

He admitted being sent to try and retrieve the car registration book from the deceased's place and posing as a policeman there after being given a police uniform by Amos Dube. The trio later returned to where the deceased was. He was still alive. The deceased was asked for the car registration by Amos Dube and Ngonidzashe Sithole. He told them that the book was at his home.

He went to the deceased's homestead. He admitted lying to the deceased's family about the registration book.

He admitted that he again returned to the scene with Ngonidzashe Sithole and Amos Dube and found that the deceased had died. He said that Ngonidzashe Sithole then gave him keys to unlock the handcuffs and leg irons. Amos Dube, however, volunteered to unlock the cuffs and did so. The deceased's body was then placed beside a rock and covered with grass and stones. The deceased's remains were left there and the trio drove away.

The accused testified that after covering the remains of the deceased, Amos Dube drove the vehicle, with him and Ngonidzashe Sithole as passengers, to Centenary. Whilst in Centenary, Amos Dube then said that he was known in the area. He was asked to look for a driver because he (the accused was not known). He then went to the bus rank and looked for a driver to drive his boss. He engaged a driver whose name he does not remember but that driver was in the company of Roderick Chakabuda whom he knew. He said that the driver, him and Roderick Chakabuda then proceeded to Chegutu where Amos Dube and Ngonidzashe Sithole had proceeded in advance. The driver and Roderick Chakabuda were dropped off in Chegutu and Amos Dube took over the driving and the trio, that is, the accused, Amos Dube and Ngonidzashe Sithole then proceeded to Kadoma.

From Kadoma, they drove to Copper Queen where the vehicle ran out of fuel and it was left on the roadside. The trio went to their homes.

On the following morning, the accused was instructed to go and collect the vehicle and he went with fuel. He said that he engaged a driver whom he knew to drive the vehicle but it would not start as the battery was flat. He then returned to Amos Dube's place and collected a tractor battery. The driver was able to start the vehicle. From there, he said that the vehicle, with him and the driver as the occupants of the vehicle, was driven to Kuwirirana Business Centre. He did not tell the driver their exact destination. At Kuwirirana Business Centre, he was instructed by Ngonidzashe Sithole to take the vehicle home. He however never got the opportunity to do so because he was then arrested at that Business Centre and detained by police details from Nembudziya. He was released on the following day to go and collect the vehicle registration book.

He lied to the deceased's family that upon his release he was given the police uniform by Amos Dube. He then masqueraded as a policeman and tried to get the deceased's family to give him the book after lying to them. He gave details of the lies he told the deceased's family about who he was and why he wanted the registration book. He had said that he had business at St Alberts after failing to get the book. He returned to his accomplices and they agreed to abort the efforts to retrieve the book.

The deceased's family members continued to phone on the numbers which he had given them when he lied that he was going to St Alberts. Amos Dube would cut them off.

In terms of sequence of events, the visit to the deceased's homestead occurred before they went back to where they had left the deceased in handcuffs and leg irons to retrieve the same and bury the deceased's remains. He said that he then returned to his workplace in Gokwe and continued with his duties of herding cattle and doing other chores. He then went to Kadoma for some shopping, missed his bus back home and was arrested by police officers patrolling the bus rank. He was detained for four (4) days and was collected by police officers from Mvurwi CID on the fifth day.

He denied having been in police uniform upon his arrest. He said that police assaulted him.

He testified that he told the police to quickly arrest Ngonidzashe Sithole and Amos Dube but the police did not believe his story about the involvement of Ngonidzashe Sithole and Amos Dube. They accused him of lying.

The accused was asked by his pro-deo counsel whether he did anything in the goings on which contributed to participating in the commission of the offence charged. The accused's response was that;

“I was following instructions.”

He said that he was forced to sign a warned and cautioned statement and was thoroughly beaten to a point where the magistrate at Guruve ordered that he be treated as he was coughing and nose bleeding.

The court noted, however, that the statement was no tendered in evidence.

He said that Amos Dube and Ngonidzashe Sithole used to visit him at prison. He further testified that each time he gave the police the correct names of his accomplices, the police would deliberately change the names to fix him because he is an orphan. He said that the police changed the names to Amos Moyo and Ngonidzashe Dube yet he had given them the names Amos Dube and Ngonidzashe Sithole.

The accused was cross examined by the prosecutor.

He was just on the defensive and evaded questions. He however agreed that the person whom he lured on the pretext of hiring him is the same person whose remains were recovered by police. The admission, of course, put paid to his denial, in the Defence Outline, that the remains recovered by the police were those of the deceased in this indictment.

He denied that Shongedzai Doro saw him when he was picked up by the deceased. He denied picking up Arnaldo Maguina Mussaliva, the priest. He denied being in uniform when he went to the deceased's residence to try and get the vehicle log book.

Asked why he impersonated a police officer, he said that he was not educated and had in fact asked Amos Dube and Ngonidzashe Sithole whether, when they sent him to try and get the vehicle log book, he would not meet up with the police.

He denied that he introduced himself to the deceased's family as Constable Makomo of Bindura Traffic.

Asked about the cell number which he gave to the deceased's relatives being that of a teacher he said that the number belonged to Amos Dube.

He said that when the deceased was being tied up, he sat inside the car and did not do anything. Asked what he thought was happening when the deceased was being tied up, he said that he was pre-occupied with his thoughts which were troubling him, in particular, that he no longer wanted to work for Amos Dube. Asked why he did not report the incident to the police, he said that he was not given a chance. As to why he continued associating with Amos Dube and Ngonidzashe Sithole, to the extent of hiring drivers and also accompanying them to Kadoma, Chegutu, Sanyati and Copper Queen, he said that he had nowhere to go.

He agreed that when the trio returned to the place where the deceased had been left tied up, to follow up on the vehicle log book, the deceased was still alive but very hungry. He appreciated that the deceased could die.

Asked if he cared at all what would happen to the deceased, he said that he did care, but that Amos Dube and Ngonidzashe Sithole were hard-hearted or headed.

He agreed that he was 26 years old at the time of the incident, an adult, but that Amos Dube stopped him from helping the deceased. He said that he was illiterate and did not own a driver's licence.

It was put to him that Amos Dube and Ngonidzashe Sithole were an afterthought of his and he said that the police deliberately recorded the names wrongly.

He could not explain the discrepancy between his Defence Outline and his evidence regarding indications and said that the police are the ones who made him indicate the various indications and that he was in leg irons.

He agreed that he stayed with his accomplices in a hut near the place where the deceased was attacked but that he stayed there with his accomplices only once. Asked by the court whether he appreciated that he and his alleged accomplices were committing an offence, he said that he could not do much as he was employed.

Asked why the police would shield criminals by recording wrong names to the ones he gave them, he said that he did not know.

The accused did not impress the court at all as witness in his defence. He failed to present a coherent account of his involvement in the events leading to the death of the deceased. The court was of the view that the accused was making every effort to make a clean breast from blame or involvement in the death of the deceased and sought to portray his role as being on the peripheral.

He sought to convince the court that he was just an unwilling log in a machine being operated upon by his accomplices. Measured against the State witnesses, the accused presented himself as a pathetic witness who did not care to tell even the most obvious lie. Each time that the accused opened his mouth to speak, one expected surprises if not fairy tales. The court rejected the evidence wherever it conflicted with that of State witnesses.

The prosecutor submitted that there were really few, if any, material disputes of fact when one considered or contrasted the evidence of the State witnesses with that of the accused. The only point of disagreement or departure consisted in the accused's involvement of his alleged accomplices whom no one appears to have seen – except, of course, the accused.

The police tried to follow on the leads regarding the accomplices but drew a blank.

The accused's assertion that the police, when given leads and names of the accomplices, deliberately changed the names given to them, is so improbable and unbelievable as to be decidedly false.

Only a gullible court would accept that, in the circumstances of this case, and given the seriousness of the charge of murder, the police would have sought to sacrifice the accused and exonerate the accomplices. No motive for such dereliction of duty or un-professionalism on the part of the police was suggested and the allegation just didn't make sense and must be dismissed.

The objective evidence in this matter clearly established, beyond any reasonable doubt, that:

(a) The accused purported to hire the deceased for purposes of going to pay lobola in Mount Darwin - which was a lie. The motive for the hire was intended to lure the deceased to agree to the hire as he would have wanted to know the purpose of the proposed trip.

(b) At all material times, the accused was in the deceased's motor vehicle and had possession and control of it, either by himself or through third parties whom he engaged to drive the vehicle under the guise that he had employed them only to dump them.

(c) The accused's actions leave the court, and, indeed, any reasonable trier of fact, in no doubt that he intended to deprive the deceased of his motor vehicle and went to the extent of impersonating a police officer and lying to the deceased's family as to his identity in a bid to cause the family to release the registration book. If the registration book had been released to the accused, he would have again hoodwinked the police at Nembudziya to release the deceased's vehicle to him.

(d) The accused could not have remained in the motor vehicle when the deceased was being disposed of his vehicle as he alleged. It is also inconceivable that the deceased would not have offered some resistance. In any event, even if it were accepted that the accused had accomplices who helped him disable the deceased, he, nonetheless, did not dissociate himself from the unlawful acts of the accomplices and thus made common purpose with them. He clearly appreciated what had been done to the deceased, that is, robbing him of his motor vehicle. He then willingly took a ride with his accomplices in the vehicle, that is, if there were any accomplices at all.

(e) The remains of the deceased were found as a result of indications made by the accused....,.

The accused's pro deo counsel submitted that there was no evidence led, beyond reasonable doubt, that the remains recovered by the police were those of the deceased.

This submission was startling because the accused himself indicated the place where the remains of the deceased had been buried. There was no suggestion that the remains could be of anyone else other than the deceased. The accused admitted that the deceased died as a result of the actions of the accused's accomplices and they recovered their handcuffs and leg irons from the deceased's body before burying his remains under stones and grass.

What better evidence of identification could one have sought for?

This was a clear case where the identification of the body of the deceased was made by the accused and confirmed by the State witnesses. No scientific evidence was necessary.

In any event, it would not have mattered that the remains were not of the deceased but of another human for as long as such unidentified person would have been killed as a result of the unlawful actions of the accused. See section 56 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code).

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE
Ruled By: PATEL J and HUNGWE J

This is an appeal against the conviction of the appellant on one count of rape by the Regional Magistrates Court, sitting at Bindura.The appellant, who was legally unrepresented, pleaded not guilty to the charge.He was convicted and sentenced to a term of 8 years imprisonment of which a period of ...

This is an appeal against the conviction of the appellant on one count of rape by the Regional Magistrates Court, sitting at Bindura.

The appellant, who was legally unrepresented, pleaded not guilty to the charge.

He was convicted and sentenced to a term of 8 years imprisonment of which a period of 2 years was suspended on condition of good behaviour.

The Facts

The complainant in this case is Barbra Mukadyata, a female juvenile aged 16 residing in Zvomuya Village, Madziwa. The appellant is a male adult aged 23 staying in the same village. He is employed as a soldier at 4.2 Battalion, Gutu. The appellant and the complainant were in love with one another.

It is common cause that on the 28th of November 2004, at about 7:30pm the appellant met the complainant on her way home from Madziwa Township. The appellant had sexual intercourse with the complainant within a bushy area near the road.

The State case was that the appellant coerced and subdued the complainant into having sex with him and that the complainant did not consent to the act of sex. The complainant later reported the matter to her sister. A few days thereafter, the police were notified and the appellant was then arrested. According to the medical report subsequently compiled and produced at the trial, the complainant's hymen was torn and penetration had been effected.

The appellant's defence was that on the day in question he and the complainant walked together along the road until they arrived at a secluded place. They then had consensual sexual intercourse. Thereafter, he walked with her and they parted when they were close to her home.

Subsequently, at a gathering of their respective families, he confirmed that they were in love and that they had had sexual intercourse. He then took her home, in accordance with customary norm, and they voluntarily stayed together as husband and wife. Three days later, the complainant left his residence and reported the alleged rape to the police.

The Arguments

Counsel for the appellant submits that his conviction is unsustainable for a number of reasons.

The complainant did not raise any alarm at the time of the sexual encounter even though other persons were passing nearby. Moreover, there was no sign of any struggle at the scene of the alleged rape. The complainant's report to her sister was not spontaneous but was induced in order to justify her sexual misbehaviour. She only reported the matter to the police after she felt ill-treated by the appellant's family and after her intended marriage to the appellant did not materialise. She therefore had a strong motive to incriminate the appellant.

Counsel for the respondent submits that although the complainant was in love with the appellant, she was surprised by the sexual encounter. Her clothes were soiled and she reported the rape to her sister at the earliest opportunity. The appellant acted in the manner that he did because of the local customary practice whereunder whichever man first had sexual intercourse with a virgin was entitled to take her as his wife. The appellant feared the possibility of some other man deflowering and claiming the complainant as his wife. The fact that the matter was temporarily settled as between the two families does not detract from the complainant's lack of consent at the time of the alleged rape.

The Complainant's Evidence

Most of the facts in casu, relative to the relationship between the appellant and the complainant and the events that occurred well after the alleged rape, are common cause.

What is in dispute is the nature and circumstances of the sexual encounter in question.

In this respect, the complainant's evidence-in-chief, as to what transpired at that time and immediately thereafter, is highly pertinent. At pages 4 to 5 of the trial record, she states as follows:

“As we were going down the dust road we got to some place where there were some mukute trees. Accused person asked me if I was not prepared to go to his place of residence, but I told him I wasn't because his parents talk a lot. As we were standing there, he then grabbed me and dragged me to the side of the road. He grabbed me yet again and placed me yet on another point besides the road. He then fell me to the ground, he then had sexual intercourse with me. After doing that I asked him why he had done that to me when I had not consented.

…,. Soon after he had finished I could not wear my shoes. I held them as we walked together. When we got to a point in between our homes, he then told me that he was going home. I asked him how he could leave me like that after having had sexual intercourse with me because by then I was bleeding. My pair of pants was soiled with blood as well as my skirt. He then left for his place of residence leaving me alone standing there. I was stranded. I was afraid to go home because this time then my sister was looking for me. I was afraid to go home because it was my first time to have had sexual intercourse with a man. When my sister saw me she asked me why I delayed in coming home that day. I was afraid to tell her. She got a switch intending to assault me. I asked her to stop assaulting me. I then explained everything what had happened to her.”

As regards the complainant's relationship with and feelings towards the appellant after the alleged rape, she had this to say, at pages 6 to 7 of the trial record, in response to questions from the prosecutor:

“He is saying you later stayed with him for three days as husband and wife. Did that happen?

Yes, your Worship. I went to his place of residence. Upon my arrival, the father of the accused person started (ragging) against the accused and myself blaming him for having brought me home as his wife, but Givemore told his father that this was the woman that he wanted for marriage, but the father suggested that he wanted the girl from Bindura. Givemore was against this. They argued over this up until Givemore left me there and came to Bindura. When I remained behind, the parents could not give me anything, not even food or water.

Why did you go to his house?

My parents said that I should go to my husband. I agreed, your Worship, and proceeded to my husband, but, on getting there, the parents to the accused person said they didn't want to see me.

Why were you approaching him as your husband after he raped you?

Your Worship, I had given my life to him as he was the first man to have sexual intercourse with me, and, therefore, he was the man I was supposed to have married, to go into marriage and not any other.

But you insist he had raped you?

Yes, your Worship, I had not consented but I had given my life to him. I want him to be my husband because he is the only one who had sexual intercourse with me. I cannot go to any other man for marriage now except him.

You first reported the matter to your sister….,. She got hold of a switch intending to assault you. Why did she want to assault you?

She wanted me to tell her the truth of what had happened because I was rather reluctant to tell her because I was afraid.

I am not clear. Did she want you to tell her why you delayed coming home?

Yes.

So, you gave a report of rape to her voluntarily. It was not the assault was not calculated to solicit that report from you but to solicit satisfactory reply as to why you had….,.?

She wanted me to tell her why I had delayed in coming home which was unusually of me. That is why, that is when I asked her to stop so that I could tell her everything what had happened.

When was the report made to the police? How long after you had been ravished?

It was after two days. It was after I had been chased away from home by accused's parents and I didn't know where to go.”

Decision

It is clear from the complainant's testimony that she was, and continues to be, in love with the appellant. Their meeting on the night in question was not unusual and entirely voluntary. After the alleged rape, she walked with the appellant and wanted him to remain with her.

One of the principal features of evidence against the appellant was the fact that he effected penetration without the complainant's pants having been removed. This fact was relied upon to draw the inference that sexual intercourse took place without the complainant's consent.

In the circumstances of this case, I take the view that the trial court's approach in this respect was misdirected.

In criminal cases, it is a well established principle that guilt by inference cannot be concluded unless the inference sought to be drawn is consistent with other proven facts and those facts exclude the possibility of any other inference. See S v Blom 1939 AD 188; S v Phiri SC78-88.

The inference of non-consensual sex drawn in casu is inconsistent with the surrounding circumstances, viz. the pre-existing relationship between the parties and the absence of any sign of struggle or cry for help at the time of their sexual encounter. Moreover, the facts, as proven, do not exclude the possibility that the complainant's pants were not removed during the act of sex because of its illicit and surreptitious nature coupled with the fact that it was performed alongside an open road.

What is critical in casu is the manner and circumstances in which the complainant made her report to her sister.

She was obviously confused and ashamed of what had happened and was understandably afraid to explain her delay in returning home that night. Her confusion was compounded by the fact that her sister threatened to assault her. Her evidence suggests that her sister might well have already begun to beat her.

In these circumstances, it cannot be said that her report was voluntary and spontaneous. It is possible, if not probable, that it was the fear of her sister's wrath and chastisement that induced the complainant to declare that she had been raped by the appellant.

As regards the complainant's subsequent report to the police, there is a strong possibility that she acted in a recriminatory manner following her rejection and ill-treatment at the hands of the appellant's parents. Her report to the police may well have been made in order to rehabilitate herself in the eyes of her own family.

It is trite that a complainant in a rape case should make her complaint or report freely and voluntarily and without any undue influence. See R v Gittleson 1938 SR 165; S v Mbanje SC75-89; S v Zaranyika 1997 (1) ZLR 539 (H)…,.

Having regard to the complainant's own evidence, I am satisfied that her reports of the alleged rape, both to her sister, and, later, to the police, were neither voluntary nor spontaneous. The learned Regional Magistrate should have guarded against the great likelihood and danger of false incrimination. See S v Ziyando SC79-89.

Taking all of the evidence into account, I am in agreement with counsel for the appellant that the evidence led by the State did not rebut the possibility of consensual sexual intercourse having taken place between the parties. The appellant's version of what transpired on the night in question was reasonable and within the bounds of possibility.

He should have been given the benefit of the doubt and acquitted on the charge against him. See S v Moyo & Anor SC12-93, where it was observed as follows:

“A court cannot also decide on the basis of whose story is more probable and credible because of the burden of proof. If the defence version could reasonably possibly be true, although improbable, the accused must be acquitted.”

In the result, I am of the view that the State failed to establish the accused's guilt beyond a reasonable doubt at his trial and that his conviction on the evidence before the court a quo is unsafe and cannot be allowed to stand.

The appeal is accordingly allowed. The conviction in casu is quashed and the sentence imposed is set aside.

SC05-14 : ABEL SIBANDA vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

This is an automatic appeal against the conviction for murder with actual intent and sentence of death imposed by the High Court Bulawayo, sitting as a Circuit Court in Hwange on 23 November 2012.

The appellant was charged with the murder of the deceased; it being alleged that on 12 October 2011, and at Mabale grazing lands, the appellant did wrongfully, unlawfully, and intentionally kill Virginia Mukandla a female adult in her lifetime therebeing.

The facts that gave rise to this matter may be summarised as follows:

The appellant was employed as a herdboy by the deceased and her husband. At the relevant time, the appellant was aged thirty-one (31) and the deceased was twenty-nine (29) years old. On 12 October 2011, at about 0600hrs, the appellant approached the deceased's husband and asked him to accompany him to fetch some firewood. The deceased's husband was unwell and the deceased offered to go in his stead. They then left in an ox-drawn scotch cart.

At about 1300hrs, the deceased's husband noticed that the dog that had accompanied the deceased and the appellant had returned to their homestead without the two. He decided to ask their neighbour, a Mr Matthew Moyo, to follow the appellant and the deceased.

Mr Moyo followed the tracks that had been made by the scotch cart which had been used by the appellant and the deceased. When he arrived at the scene he found the scotch cart and oxen tied to a tree. Upon further investigation, he saw the deceased lying face down in a pool of blood. She had a deep cut on the back of her neck and she was dead. The appellant was not at the scene. He returned home with the news and a report was made to the police.

The appellant was subsequently apprehended by one Clifford Ncube and other game rangers in the National Parks area on suspicion that he was poaching. When the appellant was questioned by Mr Ncube, he told him that he was on his way to Tsholotsho to visit his wife. Mr Ncube advised him that he was lost and suggested that they should go to the National Parks Main Camp where he would get transport to Tsholotsho. The appellant tried to run away but was apprehended by Mr Ncube and his colleagues and taken to the National Parks Main Camp. They discovered that the police were hunting for him in connection with the death of the deceased and he was subsequently arrested.

A postmortem report prepared by Doctor Sanganai Pesanai, a registered medical practitioner at United Bulawayo Hospitals, was produced at the trial of the appellant. He observed that the deceased, who was about thirty weeks pregnant, had a laceration at the back of her neck. He found that the cause of death was cervical spine fracture due to assault.

Upon his arrest, the appellant stated, in his warned and cautioned statement, that he was cutting some firewood near the place where the deceased was sitting. He missed the wood and the axe struck the deceased on the back of her head. In his evidence in chief he explained that the axe he was using slipped from his hand and accidentally struck the deceased.

The court a quo disbelieved the appellant and found that he had deliberately attacked the deceased with the axe. It found him guilty of murder with actual intent.

It was the unanimous view of this Court that the court a quo had misdirected itself, in finding on these facts, that the appellant had deliberately killed the deceased.

The court a quo found that the only inference that could be drawn from the appellant's explanation on how the deceased came to be struck by the axe, together with his conduct of running away from the scene, was that he was guilty of murder with actual intent.

At the hearing, the appellant's counsel submitted that the finding by the court that the appellant had intentionally killed the deceased was not the only inference that could be drawn from the facts of the case. Counsel for the appellant referred the court to the case of R v Blom 1939 AD 188, where the Court set out two cardinal rules which must be taken into account when dealing with circumstantial evidence:

(1) The first rule is that the inference sought to be drawn must be consistent with all the proved facts; and

(2) The second is that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.

In the present case, it is our view that the inference that the appellant deliberately attacked the deceased is not the only inference that can be drawn from the proven facts.

(a) Firstly, there was no evidence placed before the court of any motive for the appellant to want to kill the deceased;

(b) Secondly, it was not in dispute that on the day in question the arrangement was that the appellant would go to collect firewood with the deceased's husband. It was only because the latter was unwell that the deceased offered to go with him. Thus, the decision that the deceased accompany the appellant was made on the spur of the moment;

(c) Thirdly, from the evidence of the deceased's husband, there was no bad blood between the appellant and the deceased; and

(d) Finally, the evidence of the police details did not state that there was any evidence of a struggle at the scene.

The court a quo found that the fact that the appellant fled from the scene, instead of going to make a report about what had happened, was indicative of his guilt.

If, indeed, the deceased was struck with the axe in the manner described by the appellant (and there is no contrary explanation on the record) then his explanation that he ran away because he was so shocked by what had happened is, in our view, plausible.

However, there can be no doubt, even accepting the appellants own evidence, that chopping firewood in such close proximity to the deceased was indeed negligent. It should have been reasonably foreseeable to an ordinary man that an accident with an axe could occur.

The angle that the appellant described as the one used to chop the firewood could easily have caused injury to a person who was so close to where the firewood was being chopped.

In our view, the fact that there were no freshly chopped pieces of firewood at the scene would not necessarily mean that the appellant set out to attack the deceased. It could very well have been that the deceased was struck with the very first attempt by the appellant to chop the firewood.

As there was no eyewitness to the offence, the appellant must be given the benefit of the doubt.

Counsel for the State conceded that, on the facts, the court a quo should have returned a verdict of culpable homicide.

In our view, this concession was properly made.

As indicated below we proceeded to set aside the conviction and sentence imposed by the court a quo. Having substituted the conviction of murder with that for culpable homicide, we then invited argument in mitigation before passing sentence….,.

1. The conviction and sentence of the appellant for murder with actual intent are hereby set aside.

2. The appellant is hereby found guilty of culpable homicide.

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.

HB02-18 : THE STATE vs BONGANI MHLANGA
Ruled By: MOYO J

The accused person faces a charge of murder; it being alleged that on 1 March 2017 he assaulted the deceased, Bright Sibanda, who is his half-brother, with a hoe handle. The deceased later died from the injuries he had sustained which were on the head.

The accused pleaded not guilty to murder but tendered a limited plea to culpable homicide. The State rejected that plea and the matter proceeded to a full trial.

The following documentary exhibits were tendered;

(a) The State summary was marked exhibit 1;

(b) The accused's Defence Outline was marked exhibit 2;

(c) His confirmed warned and cautioned statement was marked exhibit 3; and

(d) The postmortem report was marked exhibit 4.

The hoe handle that was allegedly used in the commission of the offence was not brought to court as it was allegedly not recovered.

The facts of this matter are fairly straight forward;

The two brothers had an altercation earlier in the evening where they fought over 10 pula. The deceased assaulted the accused on the head with a spirit level, resulting in the accused suffering injuries on the head in the form of a cut. They were restrained. Later, at home, as the accused arrived, the deceased was narrating to Tauyanashe Muturukwa what had happened in the altercation. The accused was within hearing distance; he armed himself with a hoe and hit the deceased once on the head. The deceased then fell to the ground injured and bleeding profusely.

The post-mortem report gives the injuries as a laceration on the right parietal region which was 8cm with a depressed skull fracture in the same region as well as brain damage and subarachnoid haemorrage in the same region. The cause of death is given as:

(1) Brain damage.

(2) Depressed skull fracture.

(3) Assault.

The first State witness, Tauyanashe Muturukwa, did not see the accused strike the deceased; he only realized that the deceased had been struck.

The second State witness, Elvis Katena, observed from some distance, the accused carrying a hoe behind him and raising his arms above his head as he struck the blow on the deceased's head. He confirmed that the accused did not use the hoe itself to strike the deceased but the back of the handle.

The accused's version is basically similar to that of the State save to vary the circumstances in the kitchen when he assaulted the deceased.

State witnesses say the deceased was unarmed but the accused says he was. State witnesses also say he aimed at the head and he says he did not.

Whatever version one adopts, it is the nature of the assault which is decisive on the verdict in our view.

The State counsel submitted that from the weapon used, and the injuries suffered, the accused must be found guilty of murder with constructive intent.

We have not been favoured with the weapon that was used; and, a hoe handle can be any size. It was the State's duty to provide the court with the exhibit if it so much wanted to lean on its nature. A hoe handle is a form of log that varies in thickness, length, and width as well as weight.

How can this court sit here and imagine a lethal hoe handle?

The State bears the burden of proof and it cannot seek to have this court assume issues that it should prove.

The nature of the injuries I do not know how they lead to a conclusion on the intention.

There are numerous culpable homicide cases wherein an accused person would either have been dealt a single blow on the head with a knobkerrie, a village wooden stool, a stone, or a log. I am not aware of any principle of law that stipulates that where such was used on the head and a person suffers skull fractures and brain damage, then definitely murder has been committed. Only in the presence of other relevant considerations can one be persuaded as such. In fact, there is ample case law to the contrary, which I believe is the reason why the State counsel could not cite even a single case in support of the State's contention.

The defence counsel, on the other hand, contends that the verdict should be culpable homicide.

THE LAW

We now have to assess what the accused is guilty of.

Distinction between murder with constructive intent and culpable homicide

PROFESSOR FELTOE, in his Guide to The Zimbabwean Criminal Law, 2005 Edition…, says that in deciding upon whether there was legal intention all the factual evidence which bears upon and could have affected the accused's perception, powers of judgment and state of mind and foresight at the time he committed the offence must be most carefully scrutinized; factors such as intoxication, provocation, level of intelligence, personality etc. would obviously be relevant in this regard. If the court concludes that the accused did not foresee the possibility of death but that he should have foreseen it, the correct verdict is culpable homicide.

This assessment, however, is for those borderline cases which I do not believe the current case is.

In this case, the accused and the deceased fought, they were restrained, they were both drunk; the accused used a hoe handle and dealt a single blow on the deceased. We were not favoured with the size and dimensions of the hoe handle, and, without its size and weight you cannot hold that from its usage only an intention to kill can be deduced.

This case is a straightforward culpable homicide like any other knobkerrie, village wooden stool, log, single blow cases onto the head. That the blow was on the head and resulted in a fracture would not, on its own, amount to an intention to kill.

This case is certainly no different from the following cases by the High Court where the verdict was found to be culpable homicide.

In the case of S v Mukwacha HH233-16, the accused and the deceased had an earlier altercation where the accused was assaulted; he later came back with a knife and stabbed the deceased once on the chest. A verdict of culpable homicide was given by the court.

In the case of S v Mbano HB114-15, the accused and the deceased had an altercation while herding cattle; the accused struck the deceased with a knobkerrie on the head once, the deceased later collapsed and died of a severe injury, trauma on skull. He had a depressed skull fracture. The accused was convicted of culpable homicide.

In the case of S v Sibanda and Another HB216-15, the accused struck the deceased once with a stone on the head and the deceased died from severe brain oedema, subdural haematoma, severe head trauma, and was convicted of culpable homicide.

In the case of S v Ncube HB162-15 the deceased struck the accused on the head once with a log. The deceased died from subrachnoid haemorrhage, depressed skull fracture, blunt force trauma, and the verdict returned was that of culpable homicide.

The list is endless.

These single blow on the head cases where a culpable homicide verdict was returned are so many that one wonders what motivated the State to reject the limited plea by the accused person.

Whilst the State has the prerogative to prefer charges against an accused, one would expect that they do so after a proper examination of the facts and the evidence at hand. Certainly, an accused person should not be charged with a more serious offence as a matter of course, but, the State counsel should carefully examine the burden of proof and the State's ability to sustain the charge.

In this case, even the weapon used was not tendered, and its size, shape, and weight obviously could not be assessed. These facts, where a hoe handle was used and a skull fracture resulted from a single blow on the head could obviously not sustain a murder charge by the stretch of any imagination.

At the core of any justice delivery system is the consciousness by all the stakeholders, to adopt all possible avenues that would lead to curtailed litigation, as that does not only amount to a speedy finalization of cases, but, it also saves the limited resources that we have.

The accused person is accordingly acquitted on the murder charge and is convicted on the lessor charge of culpable homicide.

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

It is trite that where an accused person has given an explanation, the court is not at liberty to reject it unless satisfied, not only that the explanation is improbable, but that it is, beyond a reasonable doubt, false. See R v Difford 1973 AD 370…,; S v Mapfumo ...

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

The appellant was convicted on a charge of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21].

He appealed to this court against both conviction and sentence.

After hearing submissions from counsel for the parties we upheld his appeal and set aside his conviction and sentence. We indicated that our reasons for judgment would follow. These are they:

The appellant fell in love with the complainant who was then aged thirteen. He, early in the morning of 17 April 2006, invited her to his house where it is alleged he raped her. He was charged with rape, but, was convicted of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21]. He was convicted by a Regional Magistrate sitting at Harare Regional Magistrate's Court, who sentenced him to 36 months imprisonment of which 12 months were suspended on conditions of good behaviour.

The appellant appealed to this court against conviction and sentence. His appeal against conviction is based on irregularities and evidential deficit.

On irregularities, the appellant alleged that his trial was fast tracked to his prejudice and the State failed to produce the complainant's first statement to the police in which she denied having been raped by the appellant. Counsel for the appellant also challenges the medical report on the ground that it was produced without giving the appellant three days' notice as required by section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], and, without seeking his consent for its production without the requisite notice.

On evidential deficit, counsel for the appellant submitted, that, the trial court erred by relying on the evidence of the complainant who came to court with visible injuries, having been assaulted by her uncle for this case; that the complainant had freely and voluntarily made an initial statement to the police denying having been raped by the appellant. He submitted that the complaint was examined by a doctor four days later and the report does not state that the appellant is the one who had sexual intercourse with her. He also argued that there was no basis for the magistrate preferring the complainant's and her uncle's evidence to that of the appellant and his witness.

Irregularities

Counsel for the appellant raised two main grounds on which he alleged that there were irregularities in the appellant's trial before the court a quo:

(i) He submitted that the case was unduly fast-tracked; and

(ii) The Doctor's report on the complainant was improperly produced.

Counsel for the appellant submitted, that, the appellant was brought to court by the police and his case was heard on the same day.

This is not disputed by the respondent. It is, in fact, confirmed by the record of proceedings.

The issue is simply whether or not it is permissible to fast track trials in the Magistrate's Court in the manner the appellant's trial was conducted.

The fast-tracking of cases started in the early 1990's as a means of reducing the courts' backlog. It is not specifically provided for by that name in the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act). This however does not mean it is an unlawful procedure.

It is, in fact, a useful procedure, which, if well managed, helps to contain and/or reduce the courts' backlogs of criminal cases, and ensures the delivery of timeous justice. All that has to be done is to ensure that it is used in compliance with the provisions of the Criminal Procedure and Evidence Act and other laws which provide for a fair trial.

Section 163 of the Criminal Procedure and Evidence Act provides for the timing of an accused person's trial in the Magistrate's Court as follows:

“Any person to be prosecuted on a criminal charge in a magistrate's court shall be brought for trial at the next possible court day.”

This, in my view, means, when an accused person is arrested and is to be prosecuted in the Magistrate's Court, he shall be brought to trial on the next possible court date, which means on the day when the court will be sitting next after the decision to prosecute him in the Magistrates Court will have been made. This, however, does not mean the trial has to start on that day without fail. It is desirable that it should, but, regard should be had to the provisions of section 165 of the Criminal Procedure and Evidence Act which provides for postponements where necessary.

The provisions of section 163 of the Criminal Procedure and Evidence Act are, therefore, in general, consistent with the fast tracking of trials in the Magistrate's Court. The wording is such as can justify the trial of an accused person once he is brought before a magistrate.

JOHN REID ROWLAND in his book “Criminal Procedure in Zimbabwe” commenting on section 163 of the Criminal Procedure and Evidence Act said:

“This does not necessarily mean that his trial will take place on that date, it may very well be postponed. Undue haste in bringing a case to court may be prejudicial to the accused and thus constitute an irregularity.”

Undue haste can be due to the refusal of an accused person's request for a postponement to enable him to prepare for the trial or to engage the services of a legal practitioner. It can also be due to the trial proceeding without complying with the requirements of a fair trial.

In the absence of a valid request for the postponement of the pending trial, and if the trial complies with the requirements of a fair trial, a Magistrates Court can proceed with an accused person's trial on the “next possible court day” as provided by section 163 of the Criminal Procedure and Evidence Act.

In the present case, counsel for the appellant argued, that, the trial court should have asked the appellant, who was facing a serious charge of rape, whether or not he wanted to be legally represented, and if he had said he did, the case should have been postponed for that purpose. He argued that the fact that the appellant needed the services of a legal practitioner is confirmed by his engaging one on the following day - but when his trial had already been completed.

He submitted that the appellant's friend discovered that the appellant was being tried without legal representation, and arranged for it.

He also submitted, that, the appellant was not given three days' notice for the production of the Doctor's report, and that even though he consented to the production of the report he did so without having been advised that he was entitled to three days' notice of its production.

Every accused person is, ideally, entitled to legal representation at his trial.

This becomes more compelling if he is facing a serious charge for which, if convicted, he can be sentenced to a long term of imprisonment.

Generally, such legal representation would be at the accused's own expense. It is only in exceptional cases when a magistrate may be required to order legal representation through the Legal Aid system.

Judicial officers should, in appropriate cases, ask the accused person if he needs the services of a legal practitioner at his own expense. Justice can, however, still be done if the trial magistrate ensures that justice is done by making sure the trial complies with the statutory requirements for a fair trial.

This issue was dealt with by the Supreme Court in the case of S v Dube & Anor 1988 (2) ZLR 385 (SC)…, where DUMBUTSHENA CJ, without laying a hard and fast rule, said:

“In our view, judicial officers trying such cases should ask themselves three questions:

1. Where the accused has pleaded guilty, would it be appropriate, nonetheless, to enter a plea of not guilty in terms of the provisions of section 255A of the Criminal Procedure and Evidence Act?

2. Where the accused is unrepresented, would it be fair and appropriate to advise him of the complexities of the matter and enquire whether he has considered obtaining legal representation?

3. If satisfied that the accused should have legal representation but cannot afford it, should the court certify that he should have legal representation in terms of the provisions of section 3 of the Legal Assistance and Representation Act [Cap 66], as amended by section 2 of Act 21 of 1974.

We do not mean to suggest, far less to lay it down as a rule of practice, that magistrates should recommend legal aid in every case where a long sentence is possible. In most cases, a plea of guilty is quite clear and unequivocal, and the procedures laid down in section 255 will ensure a fair hearing. Equally, there will be many cases where a fair hearing can be ensured by using the procedure set out in section 255A and changing the plea to 'not guilty' so that questions of law and admissions of fact can be explored and clarified: see S v Nyamweda 1983 (1) ZLR 131 (SC); S v Malili & Anor 1988 (4) SA 620 (T).

Finally, there will be some cases where it will be enough for the magistrate to explain the complexities and enquire whether the accused does not want to engage legal representation at his own expense. This should be done at the earliest possible stage - ideally when the accused is first remanded.

It will thus only be in a minority of cases that the magistrate will conclude that there cannot be a fair trial without representation. In such cases his duty is to act in terms of Chapter 66 and recommend legal aid. Even then, of course, an accused person can waive his right to representation, provided, he does so on a properly informed basis.”

I am therefore satisfied that the magistrate's failure to ask the appellant if he needed the services of a legal practitioner is, on its own, not a sound ground for upsetting the appellant's conviction.

The commencement of the trial without affording the appellant a postponement for him to engage the services of a legal practitioner is also not an irregularity as the appellant had not asked for a postponement. He had infact come to court with his witness who testified. He was apparently ready for the trial.

If he had applied for a postponement, the magistrate would have erred if he had ignored the appellant's request and ordered the trial to proceed in spite of such a request as the request would have been made on the appellant's first appearance in court. A refusal could not have been justifiable in those circumstances.

The issue of substance, which was dwelt on towards the end of the appeal hearing, is the magistrate's failure to observe the requirements of section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Counsel for the appellant submitted, that, the appellant's trial was conducted with such haste that his right to three days notice before the production of the Doctor's report on the complainant's examination was not complied with.

Counsel for the respondent conceded, that, the appellant was not given three days' notice of the State's intention to produce the Doctor's report, and that his consent to its production without such notice was not sought.

It was also conceded, that, the law on the production of such documents was not explained to the appellant.

The concessions were properly made as the magistrate's omissions are apparent from the record of proceedings.

Section 278(11) of the Criminal Procedure and Evidence Act provides as follows:

“(11) An affidavit referred to in this section shall not be admissible unless the prosecutor or the accused, as the case may be, has received three days' notice of its intended production or consents to its production.”

In terms of section 278(11) of the Criminal Procedure and Evidence Act two things must happen for the affidavit to be admissible in evidence:

(i) The three days' notice should have been given; or

(ii) The appellant should have consented to its production without his having been given such notice.

The consent of an unrepresented accused person can only be valid if his right to such notice is explained to him before he is asked whether or not he consents to its production without the requisite three days' notice.

It is not enough to merely ask if he consents to the production of the Doctor's report as there is need for him to consent to its production in general, and to consent to its production without the statutorily required three days notice of its production.

If the affidavit is produced without the requisite notice or consent, it will not have been properly produced and cannot be used as evidence against the accused.

In this case, the Doctor's affidavit, on the examination of the complainant, was not properly produced. That evidence was not properly before the trial court.

Its use in convicting the appellant should therefore affect the regularity of the proceedings and the propriety of the conviction.

Its production without the requisite three days' notice, or his informed consent, is an example of the court proceeding with a trial with undue haste to the prejudice of the appellant.

This is an example of how fast track trials should not be conducted.

Counsel for the respondent submitted, that, in the circumstances, the appellant's conviction and sentence should be set aside and the case be referred back to the trial court for trial de novo. She submitted that this court could use its review powers in terms of section 35 of the High Court Act to do so.

Counsel for the appellant agreed with her.

Section 35 of the High Court Act [Chapter 7:06] provides as follows:

“When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney-General may, at any time before the hearing of the appeal, give notice to the registrar of the High Court that he does not, for the reasons stated by him, support the conviction, whereupon, a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties or their legal representatives and without their appearing before him.”

The procedure provided by section 35 of the High Court Act is not applicable in this case as it refers to concessions made by the Attorney-General “before the hearing of the appeal”, and, such concessions are channeled through the Registrar for consideration by a judge in chambers.

When we brought this to the attention of counsel for the respondent and counsel for the appellant they both agreed that section 35 of the High Court Act was inapplicable and urged us to use our common law review powers.

While it is correct that this court has inherent jurisdiction and can use it to refer this case back to the trial court for trial de novo, section 41(d) and (h) as read with section 29(2)(b)(v) of the High Court Act gives this court supplementary powers to deal with a situation such as has arisen in this case.

Section 41(d) and (h) of the High Court Act provide as follows:

“For the purposes of this Part, the High Court may, if it thinks it necessary or expedient in the interests of justice —

(a)…,.;

(b)…,.;

(c)…,.;

(d) Having set aside the conviction, remit the case to the court or tribunal of first instance for further hearing, with such instructions as regards the taking of further evidence or otherwise as appears to it necessary;

(e)…,.;

(f)…,.;

(g)…,.;

(h) Exercise any of the powers of review conferred upon the High Court by section twenty-nine:

Provided, that, whenever the High Court receives further evidence or gives instructions for the taking of further evidence, it shall make such order as will secure an opportunity to the parties to the proceedings to examine every witness whose evidence is taken.”

Section 29(2)(b)(v) of the High Court Act provides as follows:

“(2) If, on a review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings —

(a)…,.;

(b) Are not in accordance with real and substantial justice, it may, subject to this section —

(i) Alter or quash the conviction; or

(ii) Reduce or set aside the sentence or any order of the inferior court or tribunal or substitute a different sentence from that imposed by the inferior court or tribunal:

Provided that —

(i)…,.;

(ii)…,.;

(a)…,.;

(b)…,.; or

(iii)…,.; or

(iv)…,; or

(v) Remit the case to the inferior court or tribunal with such instructions relative to the further proceedings to be had in the case as the High Court thinks fit; or…,.”

This court can therefore act either in terms of section 41(d) or (h) of the High Court Act if it finds it appropriate to refer the case back to the trial court.

This however depends on our findings on the appellant's grounds of appeal on evidential deficit.

It is, in my view, not proper to refer a case back to the trial court for trial de novo when the evidence led before the first trial was such as would not sustain a conviction. This would be tantamount to sending the appellant for another trial in circumstances where he should have been acquitted at the first trial.

Evidential Deficit

Counsel for the appellant's Heads of Arguments raises issues on the reliability of the complainant's uncle's evidence on his having seen the appellant and the complainant in the appellant's bedroom through a keyhole.

He, in submissions, argued, that, the trial court erred when it preferred his evidence to that of the appellant and his witness.

At p11 of the record, James Kwecha, the complainant's uncle, said he advised the police officer that he had seen the appellant and the complainant in the appellant's bedroom. They then ordered Chamunorwa Jenyu, the appellant's witness, who he said had shown them other rooms, to open the door. He told them he did not have keys to that room. James Kwecha then went to look for a screw driver he wanted to use to open the door. He said that is when the complainant sneaked out of the appellant's bedroom.

Chamunorwa Jenyu disputed James Kwecha's evidence when he testified for the appellant.

The complainant's uncle's evidence is not reliable on this aspect. He said he was with a police officer to whom he had reported that his brother's daughter was being abused in the appellant's bedroom. He had told the officer that he had seen the complainant and the appellant through a keyhole. He then went to look for a screw driver and the complainant sneaked out during that period.

This sounds untruthful, as, according to his evidence, he went to look for the screw driver implying that the police officer remained at the door.

If that was the case, how could the complainant have sneaked out in the presence of the police officer?

It is also inconceivable that a police officer would be so inefficient as to allow the complainant to sneak out of the appellant's bedroom when he had been called to witness that fact and arrest the appellant.

The State did not call the police officer leaving the appellant's word in contestation with James Kwecha's word.

The record reveals that James Kwecha could have had a motive to exaggerate against the appellant.

He, in his own evidence, said he also wanted to take a knobkerrie so that he could kill the appellant. He in fact admits attacking the appellant and wanting to assault the complainant and being restrained by the police. His aggression towards the appellant and the complainant strengthens the appellant's evidence that he was refusing to open his door because he was afraid of him and not because the complainant was in his bedroom.

The State's failure to call the police officer who came with James Kwecha to the appellant's house entitles the appellant to the benefit of the doubt, especially in view of the complainant having initially made a statement in which she denied having had sexual intercourse with the appellant.

The appellant's evidence that he had spoken to the complainant at the gate and had not taken her into his bedroom becomes probable.

It is for these reasons that we upheld the appellant's appeal and set aside his conviction and sentence.

HHH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The plaintiff's evidence was to the effect, that, on 19 March 2003 he was asleep in the house when he was awakened by a knock on the door. Those knocking were also calling out his name. He got up and went outside. As he stood by the door he saw some soldiers. The soldiers were wearing an attire he described as their usual camouflage uniform. In further describing the attire, he said it was green; grey; cream in colour with red barets. He was able to see this because of lighting from electricity lights at the residence. He realized that these people were carrying guns he described as big guns – rifles.

When he went out of the house, the soldiers asked him whether he was Chair and he confirmed so. The same question was asked to another man who was not in uniform. He later identified that man as his friend Danmore. After confirming that he was Chair, one of the soldiers grabbed him and started assaulting him with a stick. They were also interrogating him in the process. When he got hold of the stick that was being used to assault him other soldiers joined in assaulting him. They were now assaulting him with clenched fists. At some stage, he felt as if a sjambock was also used and an iron bar. After a while, the soldiers took him and Danmore, who apparently was also in their captive, to some houses in the neighbourhood. The soldiers pointed a gun at him and ordered him to go and point out neighbours he attended meetings with.

When they got to Brenda's father's house they were ordered to lie down and were assaulted further at this house. Brenda's father was not there but his wife. From that house they went to another house. From this other house the soldiers were pointing rifles at Danmore and himself. They went to Florence's house. At this house, Danmore and himself were ordered to lie down facing down. The soldiers plucked tree branches from an avocado tree and started assaulting them with the branches. The assaults were concentrated at the back. They then went to Daniel's house which is near his mother's house where he had been sleeping. Daniel was called and assaulted. At Daniel's house, all the people that were found there were assaulted.

After that, the plaintiff, Danmore, and Florence were severely assaulted further. Towards dawn, they were ordered to stand up. It was then that he saw some motor vehicles by the gate. These were army motor vehicles as they were painted in the same colour as the uniforms of the soldiers. The motor vehicles were four in number and they looked like Pumas. He also realized that the number of soldiers had increased.

It was also his evidence that they were later ordered to board the ZNA trucks he described as similar to Pumas. In the truck, he observed benches on the sides and they sat in between the benches in the centre of the loading tray.

They were then driven and ordered off at some place along the Mbare-Chitungwiza road.

Upon disembarking, they ran away in different directions. When he returned to his residence, his wife applied hot compression on him. Later, but on that same day, 20 March 2003, he left for Shurungwi to reside with his brother.

After about three weeks he returned to St Marys. He thereafter proceeded to Harvest House in Harare where MDC top officials gave him a letter to take with him to a doctor. He confirmed that he received medication and Dr Coric examined him and compiled a medical affidavit.

The plaintiff's wife, Rossy Dimingo, gave evidence in support of the plaintiff's case. Her evidence, on the identity of the assailants, was to the effect that they were ZNA members. According to her evidence, after knocking on the door, the soldiers entered their bedroom and she saw that they were soldiers as they were clad in ZNA camouflage uniform. When they entered, she saw that they were armed with sjamboeks which they wanted to assault the plaintiff with.

She indicated that the soldiers then went out and started assaulting the plaintiff. The soldiers were clad in camouflage green; grey and brownish in colour uniform. They also were putting on red berets and black boots. After assaulting the plaintiff, the plaintiff and Danmore were taken away by the soldiers. At that time there were six soldiers.

It is pertinent to point out that the plaintiff's case had its own problems:

Whilst in his evidence in court the plaintiff and his wife referred to the guns the assailants had as rifles without any hesitation; in his summary of evidence, the plaintiff referred to the guns as service pistols.

In paragraph 3 of the summary of evidence, the plaintiff had this to say:

“Some uniformed members of the ZNA wielding service pistols forced entry into the plaintiff's bedroom.”

Nowhere, in either the declaration or the summary of evidence, did the plaintiff refer to rifles as having been used or even sighted on the night in question.

According to his declaration and summary of evidence, the assaults were perpetrated using baton sticks, fern belt, and boots; yet, in their evidence in court, both the plaintiff and his wife opted to include other weapons like sjamboek and rifles. The plaintiff went on to include avocado tree branches and an iron bar.

In paragraph 5 of the summary of evidence, the plaintiff indicated, that, after being assaulted with baton sticks, fenn belt, and boots all over the body, he was then dragged to Chitungiwza cemetery and was dumped there.

The evidence adduced did not support such an assertion at all.

The aspect of dragging was within the premises of the house he was found at, and it was as he was being assaulted. He was not dragged to the cemetery at all. He was taken to the Mbare-Chitungwiza road in a motor vehicle.

In paragraph 6 of the same summary of evidence, the plaintiff stated that:

“As a result of the assault, the plaintiff suffered excrutiating pain. He also sustained multiple bruises, cuts, and a broken right arm. He had to be detained in hospital for some time.”

Surprisingly, in his evidence in court, the plaintiff and his witness never alluded to being detained in hospital at all.

The sequence of events the two seemed agreed on was that on 20 March 2003 the plaintiff left for Shurugwi. In Shurungwi he never attended any medical institution or sought medical attention from anyone. According to the plaintiff, he spent about three weeks in Shurugwi. He then returned to St Marys. He later went to his party's Head Office at Harvest House in Harare where he saw some top officials. The top officials gave him a letter which he took to a doctor. It was then that he received some medical attention. He was thereafter referred to Dr Milos Coric an Orthopaedic Surgeon. As a result of that visit, Dr Coric compiled a medical affidavit. According to that affidavit, the examination was conducted on 14 April 2003 - a period of at least twenty five days from the date of the assault.

The plaintiff's wife seemed to confirm that the plaintiff did not seek immediate medical attention. The medical affidavit did not show the multiple bruises and cuts referred to in the summary of evidence. The affidavit simply confirms a fracture of the right ulna (forearm). The assertion that the plaintiff was detained in hospital is not supported by any evidence adduced in court.

As already alluded to, the medical affidavit, by Dr Coric, pertained to the examination done on 14 April 2003. It did not show that the plaintiff was ever detained in hospital.

Another point of concern on the medical affidavit is on the history.

In the copy of the medical affidavit dated 7 March 2007, which the plaintiff seemed to prefer, exhibit 1, under history it is stated that ”Zimbabwe National Army officers attacked this man on 19 March 2003.”

In the second copy of the same affidavit, dated 10 August 2004, exhibit 2, the same doctor endorsed the history as being that “this man was attacked by political opponents on 19 March 2003.”

The change in the identity of attackers from political opponents, as in the affidavit of 19 August 2004, to Zimbabwe National Army (ZNA) officers, as on the affidavit dated 7 March 2007, needed the deponent thereto to clarify.

Unfortunately, this was not done.

This is an irregularity that put into question the credibility of the affidavit in question. The plaintiff himself could not adequately explain that anomaly.

Whilst the plaintiff's counsel sought to downplay the anomaly, I am of the view, that, in as far as the history of a patient is concerned, it is expected to be from the patient or someone with such knowledge; such an anomaly casts a shadow of doubt on the plaintiff's credibility as well.

If, on 14 April 2003, he indicated his assailants as political opponents, why have that changed to Zimbabwe National Army (ZNA) officers in March 2007?

In any case, no reason was advanced for seeking a second medical affidavit.

If the assailants were Zimbabwe National Army (ZNA) officers, and the plaintiff knew that as of fact, that should have been reflected from the onset.

In as far as the only difference between the first medical affidavit and the second medical affidavit is on the history and date, one is tempted to believe that the second medical affidavit was obtained to tie up the medical affidavit to the plaintiff's claim.

It must be remembered that as was held in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…, where there are mutually destructive stories the court must be satisfied that the version given by the party on whom the onus rests is true and the other false. Unless this can be found, the plaintiff cannot be said to have discharged the onus on him.

For a party's version to be found to be true, there should be some consistency in his version. Discrepancies may be overlooked where such discrepancies do not seriously affect the party's credibility in version of events.

Where, as in this case, the plaintiff's version, as contained in papers filed of record, is inconsistent with the plaintiff's evidence in court on material aspects relevant to the issue at hand it is difficult to find that the plaintiff has discharged the onus.

In Matiza v Pswarayi 1999 (1) ZLR 140 (S), the court was faced with a similar situation whereby the plaintiff on whom rested the onus of proof, gave three versions. The first version in the declaration, another version in a letter tendered, and a third version in his evidence in court. The trial court made a finding that he had not discharged the onus on him.

On appeal, the Supreme Court…, also concluded that:

“It cannot be said that the appellant's version is true and that the respondent's version is false. The appellant did not, therefore, prove his claim on a balance of probabilities.”

See also S v Nicolle 1991 (1) ZLR 211…,.

In casu, the factors that the plaintiff alluded to in identifying the assailants were quite common. He indeed referred to the attire as “the usual uniform”. Clearly, this would not have been his first time to see such a uniform with such colors. This camouflage uniform for the Zimbabwe National Army (ZNA) is common. Being able to describe the camouflage uniform that is commonly worn by ZNA members cannot, on its own, be an indication that he indeed saw the soldiers on the night in question. This has to be taken together with other factors. Even his wife's description was a common description of the usual uniform.

The two did refer to the soldiers putting on red barets as well.

As Emmanuel Matatu indicated, these are worn by members of the military police. He also indicated that members of the military police are not deployed on such operational duties.

It was thus pertinent to rebut that.

The discrepancies in the plaintiff's evidence do point to someone intent on either embellishing his evidence or simply not being candid with the court at all.

The medical affidavit confirms the desire to shift blame for what may have befallen the plaintiff on the night of 19 March 2003 from his political opponents to being members of the Zimbabwe National Army.

In the light of all these discrepancies, I am not satisfied that the plaintiff has proved, on a balance of probabilities, that his assailants were members of the Zimbabwe National Army.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

This is a matter in which I would have considered awarding costs against Norman Mugiya de bonis propriis if the respondents had appeared.However, although I had directed the applicant to serve the notice of set down upon the respondents owing to the exigency of the application, which was filed a ...

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.

FACTS

The details of this case can be summarised as follows:

The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment in South Africa. Until her arrest, on 4 December 2019, she was receiving treatment from a South African specialist doctor.

On her arrest, she was charged with:

1. Six (6) Counts of contravening section 5(1)(a) of the Exchange Control Act [Chapter 22.05] 'exporting foreign currency.'

2. Six (6) Counts of contravening section 8(2) of the Money Laundering and Proceeds of Crime Act [Chapter 9.24] 'concealing, disguising the true nature, source, location, disposition, movement or ownership of or right's with respect to property, knowing or suspecting that such property is proceeds of crime.'

3. One (1) Count of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (fraud).

She was subsequently charged with the attempted murder of her husband and assault for assaulting their maid.

According to documents attached to Form 242s in the applicant's application for variation, the appellant's charges of 6 (six) counts of contravening section 5(1)(a) of the Exchange Control Act are based on the following facts:

Count One: That she sent her driver Carrington Kazingizi and Terrence Mutandwa to China with US$114,000 without any declaration being made to the authorities.

Count Two: That she instructed Memory Chakuinga to issue a proforma invoice for the supply of event tents and chairs which were sent to CBZ Bank and the appellant. The appellant then applied to CBZ Bank for the transfer of US$201,846-=81 by telegraphic transfer into Falcon Projects Suppliers (Private) Limited's South African FNB bank account no 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the money from the purchase of event tents and chairs to Range Rover Centre Menyln towards the purchase of her personal vehicle, a Range Rover Autobiography, which she registered in South Africa, in her name, bearing registration number HW40JNGP.

Count Three: That she instructed Memory Chakuinga to raise a proforma invoice for the supply of household electric meters which she sent to CBZ Bank and the appellant. The appellant used that proforma invoice to cause CBZ Bank to transfer US$307,545=05 into Falcon Projects Suppliers (Private) Limited's South African FNB Bank account number 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the funds towards purchasing House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa. The house was registered in the name of LaChelle Travel and Tours (Pty) Ltd South Africa of which the appellant is the sole shareholder.

Count Four: That the appellant requested Judith Gamuchirai Goredema to source for three million rands for the purchase of the appellant's two cars, a Range Rover and a Ranger.

Thereafter, the appellant gave Judith Gamuchirai Goredema US$230,769=23. The Range Rover was registered in South Africa in the appellant's names bearing registration number HX61PSGP. The registration details for the Ranger had not been established at the time the charges were preferred.

Count Five: That the appellant externalised US$36,923=08 for the purchase of furniture for her South African House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa.

Count Six: That the appellant instructed Memory Chakuinga to prepare an invoice for the supply of prepaid meters. Thereafter, the appellant used it to cause CBZ Bank to transfer US$142,859=30 into Bonnette Electrical (Pty) Ltd's South African Standard Bank account number 371164540.

Instead of the money being used to purchase prepaid meters, the appellant instructed Memory Chakuinga to divert it towards the purchase of her second house being, Number 149 Valderana Close, Pretoria, South Africa.

The allegations involve the unlawful externalisation of US$1,033,943=10.

The other 6 (six) counts are for money laundering.

The charge of fraud is for misrepresenting to the Judge President and the Acting Chief Magistrate that her husband had consented to the solemnisation of their marriage when he had not, resulting in marriage arrangements and documents being prepared and the Acting Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale Brooke to solemnise the marriage which did not take place.

The attempted murder charge is based on what she is alleged to have done in South Africa when her husband, who was critically ill, had been airlifted to South Africa for treatment.

It is alleged, that, she, instead of taking him to hospital, kept him in a hotel room for more than 24 hours until her husband's security personnel intervened and took him to hospital. Thereafter, the appellant visited her husband who was in a private ward and on life saving Intra Venous Giving Set as well as Central Venous Catheter in order to sustain his life. She requested for privacy with her husband. Her husband's security personnel left the ward after which the appellant removed the life-saving equipment from the complainant who started bleeding profusely. She is alleged to have pushed him off the bed and left the ward. Thereafter, her husband's security personnel, on seeing what had been done to the complainant raised alarm and hospital staff came and reconnected the life saving equipment.

The assault charge is based on allegations that she assaulted their maid who she had met at their children's school.

Her bail applications in the Magistrate's Court were dismissed. She appealed to the High Court which granted her bail for the initial charges, on the following conditions:

1. That she deposits RTGS$50,000 with the Clerk of Court at Harare Magistrate's Court.

2. That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.

3. That the Clerk of Court shall accept as surety the property known as Lot 1 of Lot 343A Highlands Estate measuring 3,642 square metres held by KM Auctions (Private) Limited, under Deed of Transfer 2244/2006 accompanied by the necessary resolution of the directors and shareholders of KM Auctions (Private) Limited, Keni Mubaiwa and Helga Junior Mubaiwa.

4. That applicant shall surrender her diplomatic passport to the Clerk of Court at Harare Magistrate's Court.

5. That the applicant shall report at Borrowdale Police Station once a fortnight on Friday between 6am and 6pm.

6. The applicant shall not interfere with State witnesses.

In respect of the attempted murder charge, the none-monetary conditions imposed in respect of the initial charges were ordered to cover this charge in addition to her being ordered to pay additional bail in the sum of RTGS$10,000. The condition that she resides at No.614 Nick Price Drive, Borrowdale Brooke was varied to No.64 Follyjon Crescent Glen Lorne, Harare.

In respect of the assault charge, the following bail conditions were ordered by the High Court:

1. That she deposits $1,500 with the Clerk of Court, Harare Magistrates Court.

2. She resides at Number 64 Follyjon Crescent, Glen Lorne, Harare until the matter is finalised.

3. She reports at Borrowdale Police Station every fortnight on Friday between 6am and 6pm.

4. She does not interfere with State witnesses, including Delight Munyoro and Batsirai Furukiya. She does not attend at Hellenic Primary School except in connection with consultations with school authorities.

Thereafter, the appellant's initial bail conditions were altered to include the surrendering of her ordinary passport number CN701555 which had not been previously disclosed when bail was granted by the High Court, to the Clerk of Court at Harare Magistrates Court.

Subsequently, the appellant applied to the court a quo for the variation of her bail conditions.

She sought the release to her of her ordinary passport so that she could travel to South Africa for medical treatment by Dr Van Hedeen, a specialist on lymphoedema. She also sought the temporal suspension of the condition that she reports to Borrowdale police every fortnight on Fridays. This was to enable her to travel to South Africa where she was to receive treatment for a period which would result in her not being able to meet the reporting condition.

In her application for variation, the appellant concentrated on the condition of her health. She did not explain how the interests of justice should be balanced with her need for medical treatment if her application was to be granted.

She merely said she would not abscond as she could not risk the forfeiture of her parents' property which was offered as surety when she was granted bail by the High Court.

On the other hand, the first respondent opposed the application alleging that the appellant has strong ties with South Africa and that most of the charges preferred against her involve the externalization of foreign currency to South Africa.

The attempted murder is alleged to have occurred in South Africa.

The first respondent also opposed the application for variation on the basis that the evidence led by the appellant left grey areas on the issue of whether or not there are specialists in Zimbabwe who can treat the appellant's condition.

The court a quo accepted that the appellant needed medical treatment by specialists. It accepted that prior to her arrest she was being attended to by Dr J Van Hedeen, a South African specialist. The court a quo however did not accept the evidence of Dr J Van Hedeen who authoritatively spoke about the appellant's current condition without disclosing how he got that information as the appellant has not travelled out of Zimbabwe since her arrest on 4 December 2019. It also did not accept the evidence of specialist neurologist, Mr Makarawo, on his statement that there are no specialists on lymphoedema in Zimbabwe.

It held that the appellant's application was based on inadequate evidence.

The court a quo gave its reasons for dismissing the appellant's application on pp33 to 34 of the record as follows;

“What I have before me by way of applicant's medical condition is one-sided. It is true that first respondent concedes that she is unwell. It is true also that she needs treatment. But that cannot be the end of the matter.

Indeed, papers from her own doctors contain some grey areas. Mr Makarawo first attended to her on 6 November 2020. He diagnosed her with lymphoedema and recommended that she be treated in South Africa because he believes that there are specialists there. I have already rejected his assertion that there are no lymphoedema specialists in Zimbabwe. I have explained why I have done so.

Dr J Van Heeden may have been treating applicant before the later's arrest on 4 December 2019. But, no evidence was presented before me to prove that he or she has attended to her since then. Applicant concedes that she has not travelled out of the country since her arrest. But, in October and November 2020, Dr J Van Heeden is giving a fairly detailed narration of applicant's medical condition and the specialist care required.

Applicant says she sought medical treatment in Zimbabwe post 4 December 2019. She says those efforts have not alleviated her condition. Instead, her health has deteriorated. She has produced neither medical reports nor other medical records to substantiate her assertion that she has failed to obtain the care that she needs in this country. I only have Mr Makarawo's letter, written on 6 November 2020. So there is that gap in the evidence.

Applicant has placed inadequate information before the court to warrant alteration of her bail conditions.

ORDER

In the result, the application is dismissed.”

It is for these reasons that the court a quo dismissed the appellant's application without considering the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions, and, if so, on what conditions.

Aggrieved by the court a quo's decision, the appellant appealed to this Court on grounds of appeal which raise the following issues:

1. Whether the court a quo misdirected its self when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation.

2. Whether, on the evidence on record, it was established that the alteration of bail conditions sought by the appellant is in the interest of justice.

SUBMISSIONS BY THE PARTIES

In view of the lockdown due to Covid-19, I did not call the parties to appear before me to make oral submissions. I however invited their counsels to file Heads of Arguments as provided by Part III paragraph (4) of the Chief Justice's Practice Direction No.2 of 2021.

Counsel for the appellant submitted that the court a quo erred when it dismissed the appellant's application on the basis that the applicant had given the court inadequate information on whether or not there are lymphoedema specialists in Zimbabwe who could treat her locally.

She submitted that the court a quo erred when it relied on the armchair evidence of Dr Magure while disregarding that of neurologist, Mr Makarawo, who had examined the appellant and formed the opinion that her condition required the attention of specialists on lymphoedema in South Africa as there are no specialists on lymphoedema in Zimbabwe.

Counsel for the appellant further submitted that the court a quo also erred by dismissing the application without deciding the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions.

She also argued that the first respondent had alleged that the appellant will abscond if variation is granted as she has roots in South Africa without leading evidence on that aspect.

She, in conclusion, urged this Court to allow the appeal and grant the appellant's application for variation.

Counsel for the first respondent, in response, submitted, that, the court a quo had correctly held that the evidence led by the appellant left the court with inadequate information on whether or not her condition could not be treated locally. She submitted that the evidence led from neurologist, Mr Makarawo, and Dr J Van Heeden, had gaps which left the court with inadequate information.

On the issue of whether or not the State had led evidence on the likelihood of the appellant absconding because she has ties with South Africa, she submitted that it is not a rule of thumb that evidence has to be led in bail applications in rebuttal of what is placed in issue. The written documents and affidavits sufficed.

She further argued that she had, through her written response and in oral argument, urged the court a quo to strike a delicate balance between the two conflicting interests.

She further submitted that the court a quo considered the totality of the evidence and properly dismissed the application....,.

Whether the court a quo, misdirected itself when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation

In her heads of argument, the appellant's counsel submitted that the court a quo misdirected itself when it disbelieved Mr Makarawo's evidence that there are no specialists on lymphoedema in Zimbabwe.

A reading of the record establishes that the court a quo did not disbelieve Mr Makarawo's evidence on the condition of the appellant and her need for a specialist to treat her condition.

It is a well-known fact that doctors refer their clients to specialists if they cannot treat them themselves. It is a notarious fact courts can take judicial notice of.

The court a quo could therefore only disbelieve Mr Makarawo's evidence on the basis of evidence to the contrary being led that there are indeed specialists on lymphoedema in Zimbabwe.

The court a quo said it relied on the evidence of Dr Tsitsi Mildred Magure.

A reading of her evidence establishes that she did not say there are specialists on lymphoedema in Zimbabwe. She, in her statement, said:

“I cannot therefore commit myself to whether we have expertise locally to manage the condition or not without knowing the underlying cause of the lymphoedema. Determination of which expertise is best placed to manage the case depends on the cause and grade of the lymphoedema. Assessment by a multi-disciplinary team might conclude which expert to lead the management.”…,.

The questions which the Prosecutor General's office had asked were not answered directly.

The Prosecutor General's office had asked the Ministry of Health, which forwarded the question to Dr Magure:

1. Whether medication and the necessary facilities for its cure are readily available in Zimbabwe; and

2. Whether there are any lymphoedema specialists in Zimbabwe.

Dr Magure's response did not address the question whether medication, and the necessary facilities for its cure, are readily available in Zimbabwe. She also refused to commit herself as to whether or not there are specialists on lymphoedema in Zimbabwe.

Her suggestion, that, a “multi-disciplinary team might conclude which expert to lead the management” suggests that an experiment has to be undertaken to establish which expert can lead the management.

This does not prove that there is readily available medication and the necessary facilities for the cure of lymphoedema in Zimbabwe.

The question whether there are specialists on lymphoedema in Zimbabwe could have been answered by simply saying yes and stating the names of the specialists.

I am therefore satisfied that the court a quo misdirected itself when it preferred the evidence of Dr Magure to that of specialist neurologist Mr Makarawo.

The finding by the court a quo, that Dr Van Hedeen's evidence left a grey area as to when he examined the appellant, cannot be faulted.

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

The court a quo correctly observed that the appellant had not left Zimbabwe since her arrest on 4 December 2019. The court a quo therefore correctly questioned how Dr Van Hedeen, who lives in South Africa, could have examined the appellant to enable him to give a detail narration of the appellant's current condition.

The court a quo also correctly held that the appellant had not substantiated her claim that she had sought treatment locally in Zimbabwe without success. It observed that no supporting documents were placed before the court in support of that claim, from doctors who were attending to her.

A reading of the record proves that the appellant did not produce such documents.

I am however of the view that the omission was cured by Mr Makarawo's report to the effect that there was gross swelling of the appellant's arms and legs and the first respondent's concession that the appellant is unwell.

That, on its own, is proof that whatever treatment she might have received after her arrest had failed to cure the lymphoedema.

While the court a quo's observation is correct, it is an irrelevant and unnecessary quest for further evidence in circumstances where the first respondent had made a concession.

It is trite that what is not disputed need not be proved.

I therefore agree with counsel for the appellant, that, the appellant had, through the evidence of Mr Makarawo, proved that her condition required a specialist's attention in South Africa where she was receiving treatment before her arrest.

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

The five accused persons were charged with criminal abuse of duty as public officers as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations against them were that between 3-23 May 2017, at ZINARA, the five accused had unlawfully, and in common purpose with each other, in the exercise of their functions and contrary to their duties as public officers, engaged third party companies to source foreign currency on the informal market on behalf of ZINARA.

This was in their capacities as Finance Director, Finance Manager, Accountant, Regional Engineer North, and Director Administration and Human Resources of ZINARA.

The companies in question whom they were said to have sourced were Access Finance (Pvt) Ltd, Grayriver (Pvt) Ltd, and Caudless Trading (Pvt) Ltd.

The five accused were said to have made payments amounting to US$2,940,558=69 to these three companies as consideration towards the servicing of a loan owed by ZINARA to the Development Bank of Southern Africa (DBSA) without authority of ZINARA Board of Directors for the purpose of showing favour to these three companies.

The first accused, Simon Mudzingwa Taranhike is the Finance Director of ZINARA. The second accused, Shadreck Matengabadza is the Finance Manager. The third accused, Stephen Matute, is the Accountant. The fourth accused, Givemore Tendai Kufa, is the Regional Engineer North, whilst the fifth accused, Precious Murove, is the Director Administration and Human Resources of ZINARA.

Each pleaded not guilty to the charge.

Their core defence was that the payments were not made on behalf of ZINARA but on behalf of Infralink (Pvt) Ltd (Infralink), and that, as such, ZINARA lacked locus standi in the matter.

Their resultant standpoint was that they could not have abused their duties as public officers when they were transacting on behalf of the private company.

Furthermore, they argued, that, in view of the circumstances surrounding the payment of the monies in settlement of the loan, the ZINARA Board itself, through its lawyers, had since withdrawn charges.

Additionally, they asserted that the payments made were with the full knowledge of the Chief Executive Officer (CEO) of ZINARA at the time they were made, and that, in any event, they had acted with the full mandate of their principal - Infralink.

They also drew attention, in their defence, to the letter written to the National Prosecuting Authority by their lawyers on behalf of the ZINARA Board, prior to the commencement of the trial.

The letter highlighted that the Board was never appraised of the criminal charges against its officers. Furthermore, there was no Board resolution from ZINARA authorising anyone to institute a criminal report. It additionally highlighted that ZINARA and Infralink are, at law, two separate legal entities and that ZINARA had no locus standi.

The letter equally emphasised the context under which the payments had been made, and, in particular, the dire contractual consequences of failure to pay. It concluded that:

“The ZINARA Board fully accepts that it is lawfully bound to assist the National Prosecution Authority in combating corruption and criminal conduct and would not spare any effort or resource in supporting the prosecution of a deserving case. However, the ZINARA Board's impartial consideration of the facts at hand has prompted the need to alert the National Prosecuting Authority on the needless damage that may arise to the standing of ZINARA in circumstances where, in its view, no palpable wrong was done.”

The State took a different view.

It proceeded on the basis of being the dominus litis, and, that, the accused persons had a case to answer.

The Background

The Government of Zimbabwe, through the Ministry of Finance and the Ministry of Transport, obtained a loan from the Development Bank of Southern Africa (DBSA) in 2011 for the sum of US$206 million. This was to be used in rehabilitating the road from Plumtree to Mutare.

ZINARA, which is a statutory entity involved in road maintenance, was the Ministry of Transport's nominee.

A private company called Infralink (Pvt) Ltd was formed as a special purpose vehicle for implementing the agreement and for receipt and remittance of the funds for repayment purposes.

ZINARA is a 70% shareholder and Group Five, a private entity, is a 30% shareholder in Infralink.

The latter nominated NMB Bank as the Bank through which repayment of the loan was to be made.

For purposes of servicing the loan, ZINARA ring-fenced certain revenue streams and toll gate collections on the Plumtree-Mutare road. It would collect this money for onward transmission to Infralink. In turn, Infralink would service the loan with the Development Bank of Southern Africa (DBSA).

This worked until foreign currency became a challenge in Zimbabwe.

Although bond notes were deposited into the account, these only operate within Zimbabwe. ZINARA began to experience serious challenges in remitting foreign currency to Infralink. NMB which was Infralink's bank, was unable to assist in securing the scarce resource. The result was that Infralink soon plummeted into unstainable repayment arrears as the debt continued to mount and mount.

It was against this background that the five accused persons are said to have used illegal means to service the debt in that they had sought to use companies outside the country to use their own monies whilst being reimbursed here in Zimbabwe at a premium.

THE STATE EVIDENCE

Judith Kateera, who was the then Permanent Secretary in the Ministry of Finance and a Board member of ZINARA as well as chairperson of its Finance Committee, gave evidence.

According to her, at a meeting on 22 March 2017, the Finance Director, the first accused in this matter, had brought it to the Committee's attention that the loan obtained by ZINARA from the Development Bank of Southern Africa (DBSA) had accumulated arrears of US$14.5m and was attracting penalties of 200% over the 6% annual rate.

At a third Finance Committee meeting, held on 12 June 2017, the arrears had accumulated to US$21m.

The Finance Director reported, at that meeting, that, the Reserve Bank of Zimbabwe had only availed US$2.5m for purposes of repaying the arrears. Concerns had been raised that the debt was unsustainable and would threaten the very existence of ZINARA.

It was at this meeting that the first accused person had proposed that permission be granted to approach those on the market who could help extinguish the debt.

As chairperson of the Committee, her response had been that this would contravene the Money Laundering Act. The resolution, according to this witness, was that the Ministry of Transport, as the parent body, was to be approached for them to further engage the Ministry of Finance and the Reserve Bank of Zimbabwe. She had subsequently learnt of the unauthorised payment to Grayriver (Pvt) Ltd when the police approached her.

Albert Mugabe, who was then the chairperson of the ZINARA Board, told the court that the issue of the repayment of the loan was a regular issue on the ZINARA Board agenda.

He confirmed the challenges that NMB Bank had encountered in procuring US dollars despite the account being populated with bond notes. It was under these circumstances that the US dollars had been obtained outside the normal bank structures and used to service the runaway debt although the Board, which had oversight over polices, had not authorised the sourcing of foreign currency from third parties.

He agreed, in cross examination, that, making the payment did indeed relieve ZINARA of some of the penalties and that he would therefore not be surprised if the executive had sought ways to reduce the burden on ZINARA. He was not aware of any personal benefits that any of them had received.

Nancy Masiyiwa, the CEO of ZINARA, told the court that she had assumed office as head of ZINARA in September of 2016.

She described the core Executive team at ZINARA as consisting of herself, the director of finance, the human resources director, the technical director, and the corporate secretary. She is the one who chairs the Executive. The Executive reports to the Board of Directors. The CEO is the one who prepares the agenda for the Board and also presents the ZINARA report from the executive to the Board.

In terms of the actual day to day working structure between ZINARA and Infralink she highlighted that the chairperson of the ZINARA Board is also the chairperson of the Infralink Board and the corporate secretary for ZINARA is also the corporate secretary for Infralink. She further explained that the CEO of ZINARA is also the CEO of Infralink and that the financial director for ZINARA is also the same for Infralink. Group Five, Infralink's counterpart, has two representatives on the Infralink Board.

Amongst the accused persons, only the Finance Director sat on the Infralink Board.

She also highlighted, that, in reality, the Infralink Board rarely met as Infralink, and, if there were issues to be discussed, these were discussed by way of round robin.

Regarding the loan to the Development Bank of Southern Africa (DBSA) which was to be paid by Infralink through funds received from ZINARA, it would generally be discussed by the Executive within ZINARA where the Finance Director would give an update. It would also be discussed by the ZINARA Board.

According to her testimony, the Infralink Board rarely met as a Board. The overlapping Board members had gone to South Africa as Infralink Board members to discuss the restructuring of the loan sometime in March 2017.

She confirmed that, in June, the Finance Committee had indeed shot down the proposal to pursue foreign currency on the open market.

She told the court that the schedule of payments made by the accused was only brought to her attention when the serious fraud squad engaged her in June. Her evidence was that these payments should have been escalated to her office.

Whilst she admitted having asked the Finance Director, at the beginning of that year, to engage innovative thinking in raising funds to pay the debt, she had not said procedures should not be followed. She was unable to comment on whether the accused persons had received any benefits.

Patrick Takawira, the Treasure Director at FBC Bank, who was introduced to the second accused, Shadreck Matengabadza, by Mr Njanji from CBZ, which was ZINARA's bank, also gave his evidence. Its gist was that he, in turn, had introduced the two to Dr Hokonya, a business consultant who knew people who could pay in foreign currency outside the country and had capacity to assist.

Dr Hokonya, who had sourced the companies that were able to pay in rands confirmed that he had been introduced to the second accused, who, on behalf of ZINARA, had confirmed that they were looking for people who could effect payment on their behalf outside the country.

He had also received confirmation from the second accused that the Development Bank of Southern Africa (DBSA) in South Africa were agreeable to payments being made in rands in South Africa.

Solarwatts had been sourced to make the payment. It needed a receiving account in Zimbabwe to receive the payment from ZINARA. Solarwatts had indicated that the payment was to be made to a company known as Grayriver (Pvt) Ltd and had provided an account for it held at CBZ.

Solarwatts was supposed to pay an equivalent of US$250,000 to the Development Bank of Southern Africa (DBSA) on behalf of Infralink. This they had purportedly done in South Africa and ZINARA, in return, paid $300,000 into the Grayriver CBZ account here in Zimbabwe.

According to this witness, the other $50,000 was for commission from which he was to have received $25,000 as introduction fees. He told the court that he had paid his assistant, Chandler Moyo, whom he worked with, a sum of US$12,500 but had been unable to get his US$12,500 as the account had been subsequently frozen soon thereafter.

Chandler Moyo's evidence did not add much other than confirming that he did indeed assist Dr Hokonya in relaying information to and from the various players. He also revealed, that, after being paid his $12,500 the second accused had taken a loan of $2,500 from him which he had repaid.

Mr Shadreck Chezani, the investigation officer, was the final State witness.

He told the court that the matter had been anonymously reported to the police in May 2017. Interviews had thereafter been carried out at ZINARA and had established that something was not proper. A successful application to freeze the Grayriver account had been made. The investigation unearthed that four transactions had been made from the Grayriver account following the payment into the account of $300,000. Investigations had also established that the withdrawals had been fast and furious.

Besides the $12,500 paid to Chandler Moyo, a person purporting to be Honest Kugotsi had also made withdrawal. They had established that the particulars of the real Honest Kugotsi had been used and that the real person had nothing to do with the matter.

About $14,000 and another $60,000 had been used to purchase goods using his name.

Another fictitious person named Mckenzie had also withdrawn from the account. A fourth transaction involving $40,000 had also been made impersonating one of the directors of Grayriver (Pvt) Ltd, Magaisa Sobuza, who had in fact died in 2014.

He told the court that a total of $131,000 had been spirited away by the time the account was frozen and that the remainder of the amount remains frozen in the account.

Whilst a Munyaradzi Paraiwa had stepped forward to lay claim, the police had been unable to get hold of a person by that name at the address given.

Importantly, whilst a company called Grayriver (Pvt) Ltd does exist, the Investigating Officer explained that the account had initially been opened by one Collins Mupimbo who had been given certain documents by Mr Bruce Michael Blake from Grayriver in their business dealings to assist with opening an account for Grayriver at CBZ. The account had been opened. However, Mr Blake of Grayriver had discovered, some two weeks prior, that he could not use the account as he was being denied access.

The Investigating Officer also told the court that all the payments purportedly made on behalf of Infralink, through ZINARA, were still under investigation.

In particular, they were still investigating whether fraud and theft had been committed by any of the accused persons.

The rationale for bringing the matter to court when investigations were still in progress was said to be the fact that the focus of the complaint at this point was a separate one of criminal abuse of office in that the accused persons had acted negligently without authority.

He confirmed, in cross-examination, that the initial charges that they had filed were for theft and fraud but that they had since changed the charge to abuse of office since they realised, in the course of investigations, that the ZINARA Board had not authorised the payments....,.

The second accused told the court that the schedule of rand payments that was before the court was not correct and had been tampered with by its compilers with altered figures as to what was paid out in order to fix him.

He opined that it was because of the discovery of the manipulations and flaws such as these that the Board had in fact attempted to have withdrawn the charges the accused persons were facing.

He too denied illegality in the dealings, emphasising that they were authorised to do so and were in fact paying expenses. He told the court that, with the benefit of hindsight, he now realised that the CEO had deliberately never wanted to sign anything from the finance department - always referring back to it anything that required action....,.

Moreover, the accused persons are said to have also acted negligently in that their actions resulted in some loss as payments were made to fraudsters.

No evidence was placed by the State before this court to support the assertions that they knew they were dealing with fraudsters or that they benefitted personally from the payments made....,.

There was no evidence placed before this court that they acted corruptly or that their conduct amounted to theft which they could have been charged with if that had been the case.

In fact, the Investigation Officer told the court that the police were still investigating.

That, in itself, appeared to the court somewhat clumsy - to bring a case for trial amidst investigations.

HB17-15 : THE STATE vs MANDLENKOSI NCUBE
Ruled By: MOYO J

The accused person faces a charge of murder; it being alleged, that, on the night of 1 February 2014 and the morning of 2 February 2014, the accused person allegedly assaulted the now deceased, namely, Nobuhle Moyo, who was his customary law wife. The deceased died at Mpilo Hospital on the morning of 2 February 2014.

The State led viva voce evidence from Musa Zulu.

The evidence of the other witness was admitted into the court record in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These were Nhlalo Gumbo, Caroline Sibanda, Belina Msimanga, Decock Masuku, Arnold Nyamayarwo, and Doctor I. Jekenya.

The documents exhibits were the State summary marked exhibit 1, the Defence Outline marked exhibit 2, the confirmed warned and cautioned statement marked exhibit 3 and the post mortem marked 4.

The accused person gave evidence for the defence.

The facts of the matter are largely common cause: The accused person and his wife (the now deceased) were returning from a beer drink at Pumula Beer Garden at around 2100 hours when they had a misunderstanding. The accused started hitting the deceased, accusing her of having a relationship with a certain man. Nhlalo Gumbo and Luke Mpande, who were also travelling the same way, then restrained the accused person.

The accused dragged his wife, the deceased, and Nhlalo Gumbo was then hit by the accused with a stick when he tried to restrain the deceased. He then retaliated, hitting the accused with a fist on the face and the accused fell down.

Nhlalo Gumbo then proceeded to his room with the deceased, where they slept together and had sexual intercourse, once.

The accused person later woke up where he had fallen and went to report the assault at Pumula Police Station. He later went to look for the deceased carrying an axe and a knobkerrie and found her sleeping in Nhlalo Gumbo's bedroom.

He was incensed by this, and the accused struck Nhlalo Gumbo with an axe on the shoulder and the witness fled into the bush. Nhlalo Gumbo heard the deceased screaming saying the accused was killing her.

Musa Zulu heard screams, woke up to check, and found the accused holding a knobkerrie and an axe dragging the deceased; the deceased broke loose and ran towards a lit room but fell on the step. The accused followed the deceased and was about to strike her with an axe but the witness intervened and said he would rather hit her with the axe. She asked the accused person to hand over the axe and the knobkerrie to her which he did.

The witness then left the accused hitting the deceased with booted feet and dragging her out of the yard. She went to call the neighbourhood watch members.

She took about two (2) hours as the trip was long because these members did not stay at the same place so she had to go to one place after another. When she came back with the members of the neighbourhood watch, the accused was still beating the deceased but now they were outside the yard.

She did tell this from the screams and the sound of an assault.

They then restrained the accused from beating the deceased and carried her in a wheelbarrow to R. Sinyoka School where they would meet an ambulance. She saw, from the ambulance lights bear on the deceased, that she was injured on the head and the cheek.

The accused person, in his Defence Outline, states that he used clenched fists and booted fit; but, in his confirmed warned and cautioned statement, he says that he used open hands, a dry tree branch, and a fresh switch.

The post-mortem report gives a series of injuries numbered 1–8. The postmortem report further states, that, the pale body means she lost a lot of blood from the multiple wounds of the head (scalp and face) from the axing. The report further says the right thigh bruise and the right parietal and bilateral occupied wound could have been caused by the handle of the axe or any rod-like object.

This court has to make a determination on what was used to assault the deceased as it is the only issue upon which a finding should be made as there are varying facts on it.

Firstly, Nhlalo Gumbo, whose evidence was admitted, as contained in the State summary, says the accused brought the axe and the knobkerrie, meaning the accused's version that he only brought the knobkerrie and took the axe from the witness is not true.

The accused person brought the said weapons with him.

Secondly, it is significant that Nhlalo Gumbo also says when the accused arrived, he struck this witness with an axe on the shoulder; the witness fled and later heard the deceased screaming saying the accused was killing her.

Musa Zulu also says she found the accused carrying the knobkerrie and the axe and that when the accused was about to strike the deceased with the axe, the witness intervened and stated that he would rather hit her. She then took the weapons away from the accused.

The accused admits that he was very angry on the date in question because of the unbecoming conduct of Nhlalo Gumbo and the now deceased.

The post mortem report gives a series of injuries and amongst these injuries, which are mainly wounds, the Doctor also chronicles about four fractures. On the second mark of violence, there is an underlying hair line occipital fracture, on the 6th mark of violence there is a fracture of the left maxillary bone.

On the 7th mark of violence, there are fractures of the nasal bridge and nasal bridge fractures. On the 8th mark of violence, there is a fracture of the upper jaw.

The Doctor remarks that the multiple scalp and face wounds are from axing. In other words, the wounds are consistent with marks of an axe; consistent with any rod like object.

Now, this court's finding is that the axe was used on the deceased; on this, the court finds for the following reasons:

Nhlalo Gumbo saw the accused wielding an axe and he in fact struck Nhlalo Gumbo with it on the shoulder. Musa Zulu saw the accused about to strike the deceased with the axe and restrained him. The post-mortem report has found that the wounds on the scalp and the face are from the axing meaning that from the Doctor's view such wounds are consistent with the use of an axe. The Doctor also finds that a rod-like object was also used in causing the other wounds.

We accordingly find that the accused did use the axe on the deceased, and, in so doing, he acted wrongfully and unlawfully.

HH136-11 : THE STATE vs ELTON MANGOMA
Ruled By: BHUNU J and ASSESSORS: CHIVANDA and MHANDU

The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He is alleged, during the period extending from the beginning of January 2011 to 12 January 2011, to have intentionally directed the Acting Chief Executive Officer of Petrotrade, one Griefshaw Revanewako, to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative, and arising from the same facts, he is alleged to have unlawfully instructed Griefshaw Revanewako, the said Acting Chief Executive Officer of Petrotrade, to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of section 30 of the Procurement Act [Chapter 22:14] as read with sections 5(4)(a)(ii) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The facts giving rise to both charges are, to a large extent, common cause.

The undisputed facts are that during the period under review, the accused was the Minister of Energy and Power Development. In that capacity, he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was, however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things, and all things being equal, section (30)(1) of the Procurement Act and Procurement Regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section, however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies, in writing, the need to purchase such commodities, including fuel, without going to tender. The section reads:

“30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty-one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where, in accordance with this Act, a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include, in the record of its proceedings, a statement of the grounds and circumstances on which it relied to justify the adoption of that method.”

It is clear from the provisions of section 30 of the Procurement Act that there are two lawful ways of procuring fuel in terms of the Procurement Act:

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of sub-section two.

I now turn to apply the law to the facts of this case.

It is common cause, and a matter of established fact, that during the period in question there was an acute shortage of fuel in the country.

All the State witnesses, comprising Justine Mupamhanga, the Permanent Secretary in the Ministry of Energy and Power Development, Morgan Mudzinganyama, the Director Petroleum in the Ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the Financial Manager at NOCZIM, and Charles Kawaza, the Chairman of the State Procurement Board all gave incontrovertible evidence to the effect, that, at the material time, the country was experiencing a critical shortage of diesel.

The accused, in his Defence Outline, stated, that, none of their traditional suppliers of fuel had any diesel for sale. The Permanent Secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

“Q. Now, Mr. Mupamhanga, in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about?

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason, however, was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused, in his capacity as Minister of Energy and Power Development, to write a letter, exhibit one, on 12 January 2011, authorizing the Acting Chief Executive Officer, Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

“Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands, and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E.S. Mangoma
(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT”

Virtually all the State witnesses confirmed, without exception, that, there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct, in writing the above letter or directive, amounts to a criminal offence in the circumstances of this case depends on the interpretation of section 30(2) of the Procurement Act.

Mr. Kuwaza, as I have already pointed out, is the Executive Chairman of the State Procurement Board.

In his evidence in chief, he gave a comprehensive outline of his duties in this respect. His duties, among others, are to administer the Procurement Act. In that respect, he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the State in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony, that, if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation, NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result, in 2004, in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency, it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write-up justifying the need to procure fuel without going through the normal tender procedures.

As a result, NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not, however, strictly adhere to this directive and would, from time to time, procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM, by the State Procurement Board, way back in 2004, accords with the provisions of section 30(2) of the Procurement Act.

It is clear that section 30(2) of the Procurement Act was meant to provide a safety valve to enable State procurement entities to procure commodities expeditiously for the benefit of the State, and the nation at large, in times of dire need and emergencies without following the cumbersome time-consuming normal tender procedures.

Whereas subsection one provides for the general rule, prohibiting procurement without going to tender, sub-section two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage, that, for every general rule there is an exception, is therefore apt.

In crafting subsection two, the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent, Mowhelere.

The mere fact that Nooa Petroleum, through Mowhelere, may have rendered defective service, cannot, however, without more, amount to criminal conduct on the part of the accused.

The advice given to the accused by his Permanent Secretary and Director Petroleum, to the effect, that, any purchases of fuel had to be done through the normal tender procedures, was incorrect and bad at law.

Both the accused and Mr. Kawaza, the Executive Chairman of the Procurement Board, were, however, aware of the provisions of section 30(2) of the Procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the Permanent Secretary, who is responsible for overseeing the procurement of fuel, and the Acting Chief Executive Officer Petrotrade, responsible for procurement of fuel, were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act, everyone concerned had no option but to confess, in open Court, that it was not per se unlawful to procure fuel without going to tender.

Thus, in ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of diesel from Nooa Petroleum without going to tender, the accused was simply directing the officer to procure the diesel in terms of section 30(2) 0f the Procurement Act.

Once the Acting Chief Executive Officer had been directed, by the accused, to procure fuel without going to tender, it was incumbent upon him to provide the necessary write up to justify the procurement in terms of section 30(2) of the Procurement Act.

If any fault is to be found at all regarding the procurement of the fuel in question, the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write-up according to law.

This explains the Chairman of the State Procurement Board, Mr. Kuwaza's attitude when he said, that, apart from what he read in the newspapers, he was not aware of any offence that the accused had committed.

He was, of course, correct in this respect.

Having regard to the provisions of section 30(2) of the Procurement Act, no reasonable Court, in my view, would come to the conclusion, that, by merely directing the Acting Chief Executive Officer to purchase fuel without going to tender, the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause, that, when the accused issued the directive, it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier.

In any case, the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis, having regard to the surrounding circumstances and the motive for the directive, it cannot, by any stretch of the imagination, be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the State was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons, we were of the unanimous view, that, on the evidence presented before us, the State has failed, at the close of its case, to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either Count.

That being the case, the Court has no option but to discharge the accused at the closure of the State case.

The accused is accordingly found not guilty and acquitted on both Counts at the closure of the State case.

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

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

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

(iii) 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

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.

The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.

Background

The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.

On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.

The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.

Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.

The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.

It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.

These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.

My judgment, however, focuses on the criminal trial courts.

To state the obvious, the criminal trial courts are court A, B and D.

Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.

The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.

The question then arises: “How does a judge become seized with a criminal trial?”

The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.

The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.

I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.

It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.

It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.

By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.

It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.

The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.

The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.

Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.

The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.

In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.

Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.

Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.

In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.

The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.

In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.

It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.

The judge was not a Board member during the periods mentioned in the indictment.

The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.

The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.

These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.

The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.

Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.

The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.

Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?

The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.

Events of 13 February 2017

On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.

After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.

I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.

I directed that whatever application it was should be dealt with in court.

I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.

The rest of what then transpired thereafter is captured on record and the same has been transcribed.

It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.

When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.

The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.

He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.

State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.

Mr Chigwinyiso sought a deferment of the case to the following day.

The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.

Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.

Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.

I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.

I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'.

The next page was the accused's affidavit and there was no alteration to the citation of the parties names.

The next document was the draft order and the typed name “Martin Dinha” in the heading was cancelled and the cancellation initiated or signed for. The accused's name was substituted in long hand where the typed name 'Martin Dinha' had been cancelled.

The court adjourned the case to 11:15am to allow time for State and defence counsels to discuss the application and agree a way forward.

The adjournment of 30 minutes would also afford the court time to read through the application and for Advocate Mpofu to avail himself.

The court also advised counsel that it did not want to let the case be bogged down in “unnecessary technicalities.”

Defence counsel was also ordered to prepare sufficient copies of the application for the court.

When the court resumed, Advocate Mpofu apologized for his delayed attendance and for not timeously placing his intended application before the court and served the State timeously.

He also apologised for the mix up in the name of the accused on the cover of the application.

He handed, over the Bar, a corrected copy of the application.

The substance and content of the application was the same as the one handed over by Mr Mukweva prior to the adjournment.

Advocate Mpofu further submitted, that, the State and defence counsels had liaised over the application and agreed that it be made the following day at 11:30am with the State counsels having undertaken to file their response by 10:00am.

I directed Advocate Mpofu to place on record what the gist of the application was because the court needed to appraise witnesses, and other interested parties, who sat in the court room, of the reason for postponing the matter.

To simply state, that, the case was being postponed for purposes of making an undisclosed application as to its nature or purport would not have been sufficient or proper.

Advocate Mpofu then submitted, that, he would be making an application supported by the accused's affidavit to declare the prosecution of the accused void on account of certain provisions of the Constitution and for alternative relief that the prosecution be stayed pending determination of the constitutional process underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.

Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.

In response, Mr Chigwinyiso introduced a fourth member of his prosecuting team, a Mr Timothy Makoni.

He acknowledged, that, the defence had filed an amended application but submitted, that, what was before the court were just papers because he could not agree that the State had been served with the application until such time that a copy of the application had been served at the offices of the National Prosecuting Authority and its date stamp franked thereon.

He submitted, that, once this formality had been followed, the prosecution would then be able to respond accordingly - possibly by 10:00am.

I asked Mr Chigwinyiso whether, in essence, he was submitting that the State needed time to consider the application.

Mr Chigwinyiso submitted, that, even if the prosecution and the court were in possession of the application, there was still no application until the same had been franked by the National Prosecuting Authority at their offices.

Herein started the comedy of errors, the much ado about nothing or storm in a tea cup.

I ruled that the court did not see any logic in his reasoning and insistence that the application could only be treated as being properly before the court if it was served on the offices of the National Prosecuting Authority and its magic date-stamp franked on it.

I ruled, perhaps to the chagrin of the prosecuting team, that, it had been served with the application and was expected to respond to it and that it would assist the court if a written response was similarly filed.

The court was not referred to any Rule in criminal procedure which requires that a written application objecting to an indictment being tried can only be deemed proper if it has been served at the offices of the National Prosecuting Authority and its stamp franked on the copy served upon the Authority.

Applications to quash an indictment, as was sought in the main by the accused, are made before the accused pleads.

The law, and, in any event, logic and common sense dictates that the State is given reasonable notice of such application.

Sections 170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are instructive.

It just defies logic for the State counsel to admit, that, he has been handed a copy of a filed application but will not recognize it as such until a copy thereof has been served at his Head Office.

Such attitude was farcical.

Notwithstanding the attitude of the prosecutors, I asked whether, in view of the nature of the application, they were content with being given until 10:00am to file a response or they needed more time.

Mr Chigwinyiso then suggested that the State be given until 2:15pm the following day to file its response.

I then agreed to grant the indulgence to 2:15pm.

I then asked the Prosecution team whether there were any witnesses to be warned.

Witnesses Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa, and Hove were called into court.

I explained the deliberations which had gone on, the late filing of the defence application, the need for the State to respond in writing thereto, the nature of the application, and the agreement by the State and defence counsel to defer the hearing to the next day.

I confirmed with Mr Chigwinyiso that he could advise the witnesses to avail themselves at short notice.

It was agreed that the witness be discharged from attendance until called, after the determination of the application.

As regards the accused person, the record will indicate that I then said:

“Stand up P.G. I am postponing this case, by consent, to 2:15 tomorrow and you are ordered to appear at that time. Thank you all.”

In referring to the accused person as PG (Prosecutor General) I did not realize, nor anticipate, as I was later to discover, that, I had annoyed or irritated the Acting Prosecutor General to whom the reference was reported.

The developments which followed can only be described, as I have indicated, as a big fuss over a trifle.

The Acting Prosecutor General, perhaps determined to guard his territory of power, decided that the judge, myself, should recuse myself from the case.

It is very important to point out, that, recusals of a judicial officer are an everyday occurrence and occur as part of the judicial function.

But, how did the prosecution go about it?

Events of 14 February 2017

In the morning of 14 February 2017, my administrative head, the Judge President, called me to his chambers.

He handed me a copy of a letter addressed to him by the Acting Prosecutor General. It was copied to the Registrar and to the accused's legal practitioners.

The Judge President advised, that, he was passing on the letter to me because, as the presiding judge, I had to singularly decide on the issues raised and that his passing over the letter to me was all that he considered proper to do.

For the avoidance of doubt, the contents of the letter was as follows (and it is reproduced here because it was not a confidential communication as will be apparent):

“Monday, 13 February 2017

The accused was indicted for trial commencing on 13 February 2017. Prosecution counsel and the accused's instructing legal practitioners appeared in chambers before the learned Justice T H Chitapi, the judge assigned the matter, for a courtesy, and to inform him as to the readiness of the parties to proceed.

The learned judge was informed that the State was ready to proceed and had its witnesses present to testify but had not been furnished with the accused's Defence Outline despite the fact that the accused was indeed already for trial on 16 November 2016.

The accused's instructing legal practitioner informed the learned judge that no Defence Outline had been prepared but the defence intended to make an application and was awaiting the arrival of instructed counsel, Mr Thabani Mpofu.

The judge adjourned the matter to 11:15 hours.

Shortly before the matter was called in court, the defence produced a document which 'purported' to be an application.

'Purported' because the document does not in the least comply with the rules of court regarding form, substance, and manner of service of court applications.

Furthermore, the face of the so called 'Application for Constitutional Relief” shows that it was a page prepared for a certain Martin Dinha.

The said Dinha's particulars are scratched out in pen and substituted with Johannes Tomana.

Attached to it is an affidavit of the accused and a purported draft order also drawn presumably from an application filed in respect of the said Marin Dinha whose particulars are scratched out and the accused's particulars handwritten in.

After hearing submissions, the court ordered the State to file a written response to the application by 11:45 on 14 February 2017.

During the proceedings, captured on tape, the learned judge repeatedly referred to the accused as 'Prosecutor General.'

I am of opinion that the learned judge has improperly conducted himself and the proceedings.

First of all, Mr Tomana was suspended by H.E. The President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously, the President appointed and swore in Advocate Ray H Goba as Acting Prosecutor General.

It follows that Mr Tomana, the accused, is not in office and accordingly not 'the Prosecutor General.' In other words, the office/position is occupied by Adv Ray H Goba.

Accordingly, any reference to the accused as Prosecutor General is grossly improper and fails to distinguish between the person and the Constitutional office.

The learned judge's conduct may reasonably be perceived as improper deference to the accused likely to taint his judgment in dealing with the matter.

It is common knowledge that the learned judge previously served on the Board of the National Prosecuting Authority under the chairmanship of the accused before his appointment to the bench.

This may help explain the learned judge's conduct during the hearing; the improper deference to the accused; and improper indulgencies granted to him.

For these reasons, I fear that the proper administration of justice is likely to be prejudiced if Justice Chitapi is to continue presiding over the matter. The public's perception of justice is likely to be diminished in regard this prosecution.

I accordingly, and with the greatest respect to the learned judge, submit that he is singularly unqualified to preside over this matter.

I would wish my concerns to be brought confidentially to his attention in order for him to apply his mind to the matter, to make an appropriate decision, and avoid a formal application in court.

The Honourable Judge President…,.

Advocate Ray H. Goba, Acting Prosecutor General.”

The letter became public knowledge in circumstances which will be explained.

It was stamped by the Registrar.

However, at this stage, it is necessary to note, that, what irked the Acting Prosecutor General was, firstly, the fact, that, the prosecuting team had been ordered to file a written response to the so-called 'purported application' which did not “in the least comply with the rules of court regarding form, substance, and manner of service of court applications.”

He was also irked by the fact, that, the names Martin Dinha appeared on the papers but were “scratched out in pen and substituted with Johannes Tomana.”

He was equally irked by the fact, that, the judge (myself) had “repeatedly” (not true, of course, as the record will show) referred to the accused as 'Prosecutor General'.

In his view, the Acting Prosecutor General considered that the judge had “improperly conducted himself and the proceedings.”

The Acting Prosecutor General surmised, that, because he was appointed and sworn to act as such following the suspension (not dismissal) of the accused person, a reference to the accused as Prosecutor General was grossly improper and showed the judge's failure “to distinguish between the person and the Constitutional office.”

The improper deference to the accused person as Prosecutor-General was, according to the Acting Prosecutor General, likely to taint the judge's judgment.

The Acting Prosecutor General then remembered that the judge had, at one time, served on the Board of the National Prosecuting Authority before he joined the Bench and that the accused person was Chairman of the Board.

He thought that the improper deference to the accused and improper indulgencies (whatever these were) were due to this past interaction.

It is, of course, not clear as to what indulgencies were being referred to.

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Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

HB32-09 : EUNICE MOYO vs THE STATE
Ruled By: CHEDA J and NDOU J

HH89-12 : THE STATE vs PIKIRAI MAMBODO
Ruled By: BERE J and ASSESSORS: DAURAMANZI and MUSHUKU

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI
Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

HB343-16 : THE STATE vs JOHANNES MOYO
Ruled By: MOYO J

HB296-16 : THE STATE vs EFESU CHIKONDO
Ruled By: MOYO J and TAKUVA J

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE
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SC05-14 : ABEL SIBANDA vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

HH420-13 : MAZVITA EVELYN FATA vs THE STATE
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HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE
Ruled By: HUNGWE J and BERE J

HB02-18 : THE STATE vs BONGANI MHLANGA
Ruled By: MOYO J

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

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

HHH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

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

HB17-15 : THE STATE vs MANDLENKOSI NCUBE
Ruled By: MOYO J

HH136-11 : THE STATE vs ELTON MANGOMA
Ruled By: BHUNU J and ASSESSORS: CHIVANDA and MHANDU

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

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Law Portal Zimbabwe

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

HB32-09 : EUNICE MOYO vs THE STATE Ruled By: CHEDA J and NDOU J

HH89-12 : THE STATE vs PIKIRAI MAMBODO Ruled By: BERE J and ASSESSORS: DAURAMANZI and MUSHUKU

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

HB343-16 : THE STATE vs JOHANNES MOYO Ruled By: MOYO J

HB296-16 : THE STATE vs EFESU CHIKONDO Ruled By: MOYO J and TAKUVA J

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA Ruled By: TAKUVA J

HH528-16 : THE STATE vs PATRICK MOYO Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE Ruled By: PATEL J and HUNGWE J

SC05-14 : ABEL SIBANDA vs THE STATE Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

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

HB02-18 : THE STATE vs BONGANI MHLANGA Ruled By: MOYO J

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

HH42-12 : WILLARD CHAWIRA vs THE STATE Ruled By: UCHENA J and MWAYERA J

HHH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE Ruled By: CHITAKUNYE J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O. Ruled By: MATHONSI J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT Ruled By: UCHENA JA

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

HB17-15 : THE STATE vs MANDLENKOSI NCUBE Ruled By: MOYO J

HH136-11 : THE STATE vs ELTON MANGOMA Ruled By: BHUNU J and ASSESSORS: CHIVANDA and MHANDU

HMT08-20 : LIKANI SITHOLE vs THE STATE Ruled By: MUZENDA J and MWAYERA J

HMT54-19 : CHIVHARANGE TONGI vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

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Law Portal
Zimbabwe

HB32-09 : EUNICE MOYO vs THE STATE
Ruled By: CHEDA J and NDOU J

HH89-12 : THE STATE vs PIKIRAI MAMBODO
Ruled By: BERE J and ASSESSORS: DAURAMANZI and MUSHUKU

View Appeal HH29-11 : STATE vs BIGKNOWS WAIROSI
Ruled By: UCHENA J and ASSESSORS: BARWE and GONZO

HB343-16 : THE STATE vs JOHANNES MOYO
Ruled By: MOYO J

HB296-16 : THE STATE vs EFESU CHIKONDO
Ruled By: MOYO J and TAKUVA J

HB84-15 : THE STATE vs PROUD MOYO and MAVIS MUTEMA
Ruled By: TAKUVA J

HH528-16 : THE STATE vs PATRICK MOYO
Ruled By: CHITAPI J and ASSESSORS: GONZO and CHAKUVINGA

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE
Ruled By: PATEL J and HUNGWE J

SC05-14 : ABEL SIBANDA vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

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

HB02-18 : THE STATE vs BONGANI MHLANGA
Ruled By: MOYO J

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

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

HHH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

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

HB17-15 : THE STATE vs MANDLENKOSI NCUBE
Ruled By: MOYO J

HH136-11 : THE STATE vs ELTON MANGOMA
Ruled By: BHUNU J and ASSESSORS: CHIVANDA and MHANDU

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J