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, ...
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.
