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HB32-09 - EUNICE MOYO vs THE STATE

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Procedural Law-viz criminal appeal.
Dangerous Drugs-viz possession.
Sentencing-viz dangerous drugs.
Procedural Law-viz rules of evidence re police investigations iro search without a warrant.
Procedural Law-viz police investigations re search without a warrant iro tip-off.
Procedural Law-viz police investigations re search without a warrant iro search based on a tip off.
Procedural Law-viz police investigations re search without a warrant iro section 51 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz appeal re Notice of Appeal iro grounds of appeal.
Procedural Law-viz appeal re notice of appeal iro grounds for appeal.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz review re review powers iro section 29 of the High Court Act [Chapter 7:06].
Procedural Law-viz rules of evidence re physical evidence.
Procedural Law-viz rules of evidence re circumstantial evidence iro inferential reasoning.
Procedural Law-viz rules of evidence re onus iro burden of proof. 
Procedural Law-viz rules of evidence re onus iro standard of proof.
Procedural Law-viz onus re burden of proof iro factual issues in doubt.
Procedural Law-viz onus re burden of proof iro issues of fact in doubt.

Appeal and Leave to Appeal re: Approach, Notice, Grounds and Right of Appeal, Concession & Withdrawal of Appeal by State


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.

When the matter was argued, counsel for the appellant conceded and agreed with our view that the Notice of Appeal is defective. Even his argument is not based on the “grounds” set out in the defective Notice of Appeal.

It is trite the would-be appellant must particularize the grounds of appeal to the extent of saying whether his/her attack on the conviction is based on the quality of the prosecution evidence or its quantum or both. If the appellant is relying on an error in law, he/she should say what error was. If he/she is alleging that the trial court made a mistake of the facts, he/she should say what the mistake was; whether the court erred in accepting the evidence of a particular person or in regarding that evidence is sufficient to prove the offence.

Generalizations are not good enough, the notice must point out where the trial court erred or misdirected itself. It is not good enough to make a general statement. It is necessary to say why the court erred – Criminal Procedure in Zimbabwe, J R ROWLAND…,; R v Emerson & Ors 1957 R & N 743 (SR); S v McNab 1986 (2) ZLR 280 (S); S v Ncube 1990 (2) ZLR 303 (S); and S v Jack 1990 (2) ZLR 166 (S).

It is trite law that a defective notice is no notice and cannot be amended. If necessary, an application should be made for extension of time within which to note an appeal – S v Jack 1990 (2) ZLR 166 (S). The appellant has not applied for such extension and her right to appeal has lapsed.

The respondent does not support the conviction on account of gross irregularities. Counsel for the appellant also raised other gross irregularities.

The parties have asked us to exercise our inherent powers of review to set aside the conviction.

We agree that we should, nevertheless, deal with this matter by way of our review powers notwithstanding the flaws in the Notice of Appeal. We will act in terms of section 29(4) of the High Court Act [Chapter 7:06].

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


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.

When the matter was argued, counsel for the appellant conceded and agreed with our view that the Notice of Appeal is defective. Even his argument is not based on the “grounds” set out in the defective Notice of Appeal.

It is trite the would-be appellant must particularize the grounds of appeal to the extent of saying whether his/her attack on the conviction is based on the quality of the prosecution evidence or its quantum or both. If the appellant is relying on an error in law, he/she should say what error was. If he/she is alleging that the trial court made a mistake of the facts, he/she should say what the mistake was; whether the court erred in accepting the evidence of a particular person or in regarding that evidence is sufficient to prove the offence.

Generalizations are not good enough, the notice must point out where the trial court erred or misdirected itself. It is not good enough to make a general statement. It is necessary to say why the court erred – Criminal Procedure in Zimbabwe, J R ROWLAND…,; R v Emerson & Ors 1957 R & N 743 (SR); S v McNab 1986 (2) ZLR 280 (S); S v Ncube 1990 (2) ZLR 303 (S); and S v Jack 1990 (2) ZLR 166 (S).

It is trite law that a defective notice is no notice and cannot be amended. If necessary, an application should be made for extension of time within which to note an appeal – S v Jack 1990 (2) ZLR 166 (S). The appellant has not applied for such extension and her right to appeal has lapsed.

The respondent does not support the conviction on account of gross irregularities. Counsel for the appellant also raised other gross irregularities.

The parties have asked us to exercise our inherent powers of review to set aside the conviction.

We agree that we should, nevertheless, deal with this matter by way of our review powers notwithstanding the flaws in the Notice of Appeal. We will act in terms of section 29(4) of the High Court Act [Chapter 7:06].

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings

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.

When the matter was argued, counsel for the appellant conceded and agreed with our view that the Notice of Appeal is defective. Even his argument is not based on the “grounds” set out in the defective Notice of Appeal.

It is trite the would-be appellant must particularize the grounds of appeal to the extent of saying whether his/her attack on the conviction is based on the quality of the prosecution evidence or its quantum or both. If the appellant is relying on an error in law, he/she should say what error was. If he/she is alleging that the trial court made a mistake of the facts, he/she should say what the mistake was; whether the court erred in accepting the evidence of a particular person or in regarding that evidence is sufficient to prove the offence.

Generalizations are not good enough, the notice must point out where the trial court erred or misdirected itself. It is not good enough to make a general statement. It is necessary to say why the court erred – Criminal Procedure in Zimbabwe, J R ROWLAND…,; R v Emerson & Ors 1957 R & N 743 (SR); S v McNab 1986 (2) ZLR 280 (S); S v Ncube 1990 (2) ZLR 303 (S); and S v Jack 1990 (2) ZLR 166 (S).

It is trite law that a defective notice is no notice and cannot be amended. If necessary, an application should be made for extension of time within which to note an appeal – S v Jack 1990 (2) ZLR 166 (S). The appellant has not applied for such extension and her right to appeal has lapsed.

The respondent does not support the conviction on account of gross irregularities. Counsel for the appellant also raised other gross irregularities.

The parties have asked us to exercise our inherent powers of review to set aside the conviction.

We agree that we should, nevertheless, deal with this matter by way of our review powers notwithstanding the flaws in the Notice of Appeal. We will act in terms of section 29(4) of the High Court Act [Chapter 7:06].

Dangerous Drugs re: Unlawful Possession, Use or Cultivation

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.

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

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.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings

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.

Physical Evidence re: Approach

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.

Direct and Circumstantial Evidence, Causation, Inferential Reasoning, Confessions & the Principle of Evidence Aliunde


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.

Onus re: Evidential Standard and Burden of Proof iro Approach and the Presumption of Innocence

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.

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


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.

Sentencing re: Dangerous Drugs

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.


Criminal Appeal

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.

When the matter was argued, Mr Ndlovu, for the appellant conceded and agreed with our view that the notice of appeal is defective. Even his argument is not based on the “grounds” set out in the defective notice of appeal.

It is trite the would-be appellant must particularize the grounds of appeal to the extent of saying whether his/her attack on the conviction is based on the quality of the prosecution evidence or its quantum or both. If the appellant is relying on an error in law, he/she should say what error was. If he/she is alleging that the trial court made a mistake of the facts, he/she should say what the mistake was, whether the court erred in accepting the evidence of a particular person or in regarding that evidence is sufficient to prove the offence.

Generalizations are not good enough, the notice must point out where the trial court erred or misdirected itself. It is not good enough to make a general statement. It is necessary to say why the court erred – Criminal Procedure in Zimbabwe, J R Rowland at 27-12 to 27-13; R v Emerson & Ors 1957 R & N 743 (SR); S v McNab 1986 (2) ZLR 280 (S); S v Ncube 1990 (2) ZLR 303 (S); and S v Jack 1990 (2) ZLR 166 (S).

It is trite law that a defective notice is no notice and cannot be amended. If necessary, an application should be made for extension of time within which to note an appeal – S v Jack, supra.

The appellant has not applied for such extension and her right to appeal has lapsed.

The respondent does not support the conviction on account of gross irregularities. Mr Ndlovu, also raised other gross irregularities.

The parties have asked us to exercise our inherent powers of review to set aside the conviction.

We agree that we should, nevertheless deal with this matter by way of our review powers notwithstanding the flaws in the notice of appeal. We will act in terms of section 29(4) of the High Court Act [Chapter 7:06].

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.

Mr Mabhaudi, 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, supra.

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) at page 464:
“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 inference 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 inference, then they must be a doubt whether the inference sought to be drawn is correct.


See also S v Marange & Ors 199 (1) 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 HB-74-03.”


As alluded to above, many other persons had access to the premises in question, inter alia, the appellant's spouse, maid and 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.



Cheda J …………………………………………. I agree





Dutiro & Partners c/o Cheda & Partners, applicant's legal practitioners

Criminal Division, Attorney General's Office, respondent's legal practitioners

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