In this case, the State is seeking the impeachment of its main witness, one Michael Peter Hitschman, in terms of section 316 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the grounds that the witness has materially departed from his previous statements.

The section provides that:

"316 Impeachment and support of witness credibility

It shall be competent for any party in criminal proceedings to impeach or support the credibility of any witness called against or on behalf of that party in any manner and by any evidence in and by which, if the proceedings were before the Supreme Court of Judicature in England, the credibility of such witness might be impeached or supported by such party, and in no other manner and by no other evidence whatever:

Provided, that, any such party who has called a witness who has given evidence in any such proceedings, whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such proceedings, adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked the witness whether he has or has not previously made a statement with which his testimony in the said proceedings is inconsistent and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been mentioned to the witness, prove that he previously made a statement with which his said testimony is inconsistent."

It is trite and a matter of elementary law, that, a party calling a witness may not contradict, discredit, or challenge its own witness's evidence unless that witness has been declared a hostile or adverse witness by the court. If, however, any authority is required for that proposition of law, one need not look further than the case of S v Mazhambe & Ors 1997 (2) ZLR 587.

JW HORN, in his article, Discrediting One's Own Witness, published in the Rhodesia and Nyasaland Law Journal 1961…, defines an adverse witness in the following terms:

"An adverse witness is one who shows himself to have a mind hostile to the party calling him, or to the interests of such party. Such hostility may be inferred from one or more of the following: his demeanour in the witness stand, his relationship with either party, his previous conduct, or the fact that he has made a previous statement inconsistent with his evidence."

Having said that, the learned author proceeds to say, that, once a witness has been declared adverse, the party calling the witness is free to cross-examine him.

Where the witness gives evidence which is inconsistent with a statement made by him previously, the party calling him may prove such statement.

The nature of the previous statement takes many forms. The learned author states that:

“5. Such a statement may be oral, or written, and need not have been made to the party calling the witness, or for the object of being used in the proceedings in which the witness is testifying.

6. The witness should be given sufficient particulars of the alleged statement to designate the occasion upon which it was made.

7. The witness should then be asked whether he admits to having made a statement on the occasion specified. If the statement is signed, he may be asked to admit or deny his signature.

8. The previous statement must be shown to be inconsistent with the testimony of the witness by the party desiring to produce it. Any statement, or part of any statement, which would be inadmissible if led as evidence cannot be relied upon to show such inconsistence.”

The facts giving rise to these impeachment proceedings, are, to a large extent, common cause.

The brief undisputed facts are, that, on 6 March 2006, the witness was found in possession of a large quantity of firearms, ammunition, and arms of war. He was then arrested and detained, together with the recovered weapons and ammunition, at Adams Barracks, by a group of State agents comprising the police, army, and CIO personnel. He was later transferred to police custody on charges of insurgency, terrorism, sabotage, and unlawful possession of firearms.

While under detention, the witness made certain written statements and indications.

On 7 March 2006, he made a hand written statement at Adams Barracks, and, on 11 March 2006, he made a typewritten affidavit at CID offices.

The witness also made indications which were captured on video tape at Adams Barracks.

In all those statements and indications, he confessed and admitted having committed the offence in collusion with others - including the accused. He implicated the accused, alleging that he was responsible for financing the whole criminal enterprise to violently effect regime change through force of arms.

The witness admitted, in open court, that, he made the said statements and indications to State authorities. He however placed the admissibility of the statements and indications in issue saying that they were involuntarily extracted from him through torture under unfriendly and hostile circumstances.

It is common cause, that, when the witness made the said statements and indications he had not been properly warned and cautioned.

The handwritten statement was not signed or witnessed by anyone.

The witness told the court, that, his tormentors were drunk and disorderly, such that, in their drunken state, they omitted to make him sign the statement. Having noted the omission, he then deliberately refrained from signing it, signifying his lack of free volition.

The witness was subsequently charged with substantially the same charges as the accused. He appeared before CHITAKUNYE J whose verdict reads as follows;

"From the above, this court is of the view, that, the accused cannot be found guilty of the main charge. He (is) found not guilty and acquitted on the main charge. He is, instead, found guilty of the possession of dangerous weapons in contravention of section 13(1) of POSA."

He was then sentenced to four years imprisonment of which one year was suspended on appropriate conditions. He has since completed serving the prison term although he has an appeal pending in the Supreme Court.

Upon being served with a subpoena to give evidence as a State witness in these proceedings, the witness responded by delivering to the Attorney General an affidavit in November 2009. In paragraph 12 of that affidavit, he absolves the accused of any wrongdoing or complicity in the commission of any related charges. In paragraph 12 he had this to say:

"Consequently, therefore, and as the police are fully aware, there is no relevant testimony I can give in respect of the charges now being brought against Mr Leslie Roy Bennett who was not involved in my firearms business or in any dealings I had with firearms. In any event, I do not believe that I have been validly subpoened, and, unless advised to the contrary, I do not intend to appear in court on 9 November 2009."

Despite his protests, the witness attended to give evidence as a State witness at the accused's trial.

It is also common cause, that, the Attorney General called the witness to give evidence with the full knowledge that he was likely to give evidence adverse to the State case.

Not surprisingly, when he appeared in court, the witness gave evidence which is unfavourable to the State case and heavily leans in favour of the accused.

It is on that basis, that, the State put in motion these impeachment procedures.

I now turn to consider the admissibility of the previous inconsistent statements upon which the State relies in its bid to impeach its own witness.

It is not in dispute that both statements and indications were made at the instance of State authorities.

It is a legal requirement, that, the police must properly warn and caution an accused person before asking him to make a statement for production in court.

It is also common cause, that, the witness was not properly warned and cautioned according to law before making the statements.

That being the case, the statements were obviously inadmissible against the witness; this explains why they were not used at his own trial.

It follows, as a matter of common sense, that, if the statements and indications were inadmissible against the witness, they were equally inadmissible against his alleged accomplice, that is to say the accused.

Having examined the statements and indications in question, I have no doubt, that, they are not ordinary witness statements. They are, in fact, confessions made by the witness, not in his capacity as a witness, but, as an accused person pending his own prosecution.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

"259 Confession not admissible against other persons

No confession made by any person shall be admissible as evidence against any other person."

The section is couched in simple, clear language such that it needs no further elucidation. It constitutes a prohibition thereby making its provisions peremptory and absolute.

I accordingly hold, that, the statements and indications in question, if tendered as evidence, will be inadmissible against the accused.

Precious Matare also identified the emails before her as the ones she had printed from the laptop.

Counsel for the defence has strongly objected to the production of the emails as an exhibit on the following grounds -

1. That the laptop was already open when the witness printed the e-mails.

2. That we do not know whose laptop it was because the laptop had no serial numbers and that she has not told us what the serial numbers were.

3. That the State's own expert witness' evidence clearly shows that the email address could have been created anywhere in the world.

4. We do not know who the authors were.

5. That the defence does not know why the emails were being produced. Whether it was merely to say they were printed or to say the contents are correct.

6. That the court has already ruled that whatever was said by Michael Peter Hitschmann is inadmissible and that includes any indications.

7. That it has not been shown who was in possession of the laptop at Assistant Commissioner Muderedzwa's office.

8. That Michael Peter Hitschmann had stated that the origins of the e-mails were not known.

The State countered the defence's objection on the following grounds -

1. That the emails can never be classified as admissions by Michael Peter Hitschmann. As such, they cannot be held to be inadmissible on the basis of duress or improper conduct on the part of the police or State officials. These are separate and distinct documents from any admissions or indications which Michael Peter Hitschmann made.

2. That the emails were admissible under section 281 of the Criminal Procedure and Evidence Act [Chapter 9:07] as both the alleged laptop and e-mails were in the custody of Michael Peter Hitschmann.

3. That the purpose of the emails was to show that in the course of investigations relevant documents which implicate the accused were found through this witness.

4. That the e-mails constitute executive communication between the accused and Michael Peter Hitschmann. The emails that the witness printed contain executive communication between co-conspirators. Executive statements between conspirators are, at law, admissible in evidence against each conspirator.

In resolving this legal dispute, it is important to remain focused and not confuse the weight of evidence with admissibility of evidence.

In this case, the witness is merely endeavouring to tell the court what she did, and experienced, with her own senses, in the presence of Michael Peter Hitschmann. It is clear from her testimony, and the summary of the State case, that her evidence is limited to telling the court that she printed the e-mails in question from Michael Peter Hitschmann's laptop. She did not read the documents, and, at no time, did she allude to any evidence tending to show the correctness or otherwise of the contents of the said emails. That being the case, her evidence is not geared towards establishing the correctness or otherwise of the disputed e-mails.  

In my view, her evidence, at this stage, merely constitutes a process towards establishing the alleged conspiracy or common purpose between the alleged conspirators.

The State has intimated that the purpose of this witness's evidence is simply to show that during the course of investigations documents were found through this witness. The documents contain executive communication between the accused and his alleged accomplice.

The evidence of Precious Matare is equally innocuous in that all what she is saying is that she punched the computer and this is what came out. If Michael Peter Hitschmann's assailants could produce the guns he pointed out without any objection, I can perceive no logical reason why the production of relevant emails extracted by Precious Matare, after she had them pointed out to her in the computer, should be objectionable. Her evidence simply seeks to establish a link in the chain of evidence.

At this stage, the State has gone beyond mere speculation that Michael Peter Hitschmann is an accomplice in that he has already been convicted and sentenced for the illegal possession of the same weapons and firearms for which the accused is standing trial.

As the trial progressed, the State called one Precious Matare.

This witness testified as to how she downloaded emails from Hitschmann's laptop which tend to implicate the accused. The e-mails have since been admitted in evidence as Exhibit 13. They were admitted for the purpose of showing that they were downloaded by the witness – and not for the truthfulness or otherwise of their contents.

In my judgment of the 5^th of January HH23-10, I sounded a caution to counsel not to confuse the weight of evidence with the admissibility of evidence. That caution appears to have escaped counsel for the defence when she complained bitterly to the court in the following vein -

“My Lord, it looks like there is a reversal of onus in the manner this matter is proceeding...,.

My Lord, there is already a finding of fact before the court that the e-mails were created before the assault took place. This means my Lord has accepted that the emails were created by Hitschmann. That is a finding of fact my Lord. You have already found that Hitschmann is a convicted co-conspirator. Those are findings of fact that my Lord has made this morning.”

In admitting the emails, the court, in its discretion, chose to follow the procedures laid down in the case of S v Banda and Others 1990 (3) SA 466...,. In that case, it was held that in cases involving allegations of conspiracy a foundation must be laid by proof, sufficient evidence in the opinion of the court, to establish prima facie the fact of conspiracy. In that case, FRIEDMAN J made the pertinent observation that -

“A foundation must be laid by proof, sufficient evidence in the opinion of the court, to establish prima facie the fact of conspiracy between the accused, and then every act and declaration of each member of the conspiracy in pursuance of the original concerted plan, and with reference to the common objects, in contemplation of the law, the act and declaration of them all and is original evidence against each of them. R v Heyne and Others (supra).

It does not matter whether the evidence is admitted before a conspiracy is proved, provided, however, that a conspiracy is eventually proved.

In R v Levy 1929 AD 312, certain schedules and other records kept by one accused were admitted before the proof of the conspiracy. CURLEWIS JA, at 326-8, said:

'...,. Sometimes, for the sake of convenience, the acts of, or declarations of one are admitted in evidence before proof is given of the conspiracy; the prosecutor undertaking to furnish such proof in a subsequent stage of the case. But, such mode of proceedings rests in the discretion of the judge...,. The schedules were therefore, in my view, properly admitted..., as acts done in the course of the acting and a step in the proof of common purpose. Of course, if it were found, at the conclusion of the case for the prosecution that a common purpose had not been established, then the schedules would have to be rejected and could not be regarded as evidence against the accused.'”

The same remarks apply to my admission of the facts and e-mails as tendered by the State at this stage. The court's acceptance of the emails is contingent upon the State proving that they constitute genuine communication between the alleged conspirators, that is to say, the accused and Hitschmann.

That being the case, the question of reversal of onus does not arise. The State still bears the burden of proving what it alleges beyond reasonable doubt. In particular, the State has to prove that the e-mails accepted by the court comprise genuine communication between the alleged conspirators regarding the execution of the crime.

Of course, if it were found, at the conclusion of the trial, that a common purpose has not been established beyond reasonable doubt, I will have no option but to reject the emails and the facts upon which they were admitted.

The State led viva voce evidence from seven (7) witnesses. In my view, the key witness was Sithandekile Nkomo. She was an unconvicted accomplice whose house was used as a hiding place by the accused persons. They planned the crime from there. The customary warning was administered to her in terms of section 267 of the Code. Her evidence had to be cautiously approached.

She testified that she lived at C243 Njube, Bulawayo. She is a cross border trader. The fourth accused used to be her boyfriend from 2000 to 2003 when they parted ways. Despite going their separate ways they remained good friends. They did not have children together. She knew the other three accused persons through her former boyfriend. On 24 January 2009, the fourth accused visited her at around 1300 hours. He arrived in a red car which he parked outside and entered the house to have a chat with her. He then requested her to accompany him to Entumbane and she acceded to the request.

When she got out of the house she discovered that Accused 4 had left Accused 1 and 3 sitting in his car when he entered the house. The fourth accused then drove towards Entumbane and turned at the traffic lights and a white Corolla went and stopped near them whereupon the first and third accused got out and went to the white Corolla which was being driven by the second accused. They entered into the Corolla and talked to Accused 2 for a long time. Thereafter, the third accused returned to the car being driven by Accused 4 but Accused 1 remained in the white Corolla being driven by Accused 2. The two cars drove following each other towards Manyewu Primary School in Entumbane and stopped at house opposite the school gate. The second accused dropped some passengers there. The two cars then turned and proceeded to the witness's house in Njube where the 4^th accused parked his car inside the premises. She went into the house while Accused 1, 3 and 4 went to the Corolla. They were there for a long time. Thereafter, Accused 4 returned to his car to remove the car radio and papers relating to his car and gave them to the witness for safekeeping in the house.  Thereafter he requested her to accompany him to some undisclosed destination. She, once more, acceded to the request.

She joined the four accused persons and the five of them got into Accused 2's white Corolla. The second accused drove to Pelandaba and when they got to the clinic he turned at the second row of houses and stopped at the end of it. The first, second and third accused persons got out of the vehicle and went straight to the shops while she remained in the car with her former boyfriend – Accused 4. The second accused returned to the car after about ten minutes. He explained to the fourth accused that he had not entered the shop because he had met his uncle as he was about to do so. As a result only the first and third accused had entered the shop. The second accused then joined the witness and Accused 4 in the car. After about a period of about 7 to 10 minutes Accused 1 and 3 came running to the car. They entered the car and the fourth accused then drove away towards the traffic lights at Pelandaba. He turned left and took a right turn and drove towards Total Garage. He then turned into Nketa Drive and drove towards Entumbane and drove straight to the house opposite the gate of Manyewu Primary. Accused 4 went into the premises and parked the vehicle. All the four accused persons got out of the car and went into the house leaving her sitting in the car. While the car was being driven away from the scene Accused 1 started telling the fourth accused that they had got very little money from the tills because the girl who had the money had run into the storeroom and locked herself inside. After they had been in the house for a while Accused 4 went out to call the witness. When they were all in the house Accused 1 produced all the money he had from his pockets and placed it on the table and Accused 3 also did the same. The money was counted and shared amongst all of them and the witness. Her share was R450= which was handed to her by the fourth accused. After the sharing, Accused 1, 3 and 4 and the witness then walked from Entumbane to her house in Njube. The fourth accused collected his car radio and documents relating to the car. He, thereafter, collected his car and left with Accused 1 and 3. Accused 4 and 3 returned to her house in the evening around 8pm and requested her to accommodate Accused 3 for the night. She agreed. Accused 4 then left. The next morning, Accused 1 arrived and collected the third accused. After they had left, Accused 4 arrived on foot and was told that Accused 3 had been collected by Accused 1. Accused 4 then told the witness that he was leaving for South Africa but was not taking his car with him. He would leave it somewhere. Before he left, he told her that she should tell Accused 1 and 3 to also return to South Africa as the police were looking for them. She accordingly gave them the message when they returned. The first accused went away leaving Accused 3 at the witness's house. He returned travelling in a white twin cab. The two collected their belongings and left for South Africa.

They were away for some time and only returned on or about the time they were arrested on 18 February 2009. They arrived at about 5am on a Wednesday in the white Corolla belonging to Accused 2. The car had damaged windscreen and bonnet. The group consisted of Butholezwe - Accused 1, Welcome Michael Ncube – Accused 2, Mehluli Phiri – Accused 3 and one Douglas and one Maphila. Accused 2 and Douglas went to Accused 2's house in Gwabalanda. The other three remained at her house. Accused 2 and Douglas returned in the afternoon and the group started working on the bonnet of the car. Later, she told Accused One that she wanted to go to Lobengula. Accused One said he also wanted to go there. The six of them got into Accused 2's Corolla whose bonnet had been repaired but the windscreen had not.

When they got into Masiyephambili Drive they turned to go to Tashas Supermarket, Lobengula; when they got to a certain point four of them got out of the car leaving Accused 2, who was driving, and the witness, in the car. When the four (4) went away, Accused 2 drove to a spot near the hall and waited there with the witness. Because the accused's car had a damaged windscreen he felt it could easily be identified and decided to move it from near the hall and went to park three (3) rows of houses away. While they were there, Accused 3 emerged running from a maize patch. Accused 2 then allegedly told the witness to meet Accused 3 and tell him that he would be picked up along Masiyephambili Drive near the hill - which she did. She then returned to the car and Accused 2 drove along Masiyephambili Drive but Accused 3 was nowhere to be seen. The second accused drove to the house of the witness in Njube only to find that Accused 3 had not yet arrived. The second accused told the witness that they should drive along Luveve Road in an effort to meet him. As they drove along Luveve Road they met him at the traffic lights opposite Entumbane Shopping Complex. They then drove to the house of the witness in Njube. Accused 3 suggested to the witness that they should accompany Accused 2 to the bus stop so that he could catch a bus to Gwabalanda. They walked to the bus stop and Accused 2 got a lift and left. The third accused was accommodated at the house of the witness in Njube. During the early hours of the morning, around 4am, the police arrived at the house but the third accused was no longer there. The police allegedly assaulted everyone at that house and said they wanted the second accused.  They were taken to a car where they found Accused 1 who told the police that the witness was the one who could show them the house opposite Manyewu School. Some police officers remained guarding the witness's house. They proceeded to that house and collected everybody who was in the house and amongst them was a young man who knew where Accused 2 lived. They proceeded there and collected Accused 2 and his wife. While they were on their way to Central Police Station, and were at Emakhandeni, one of the police officers in the vehicle received a call to the effect that the third accused had been sighted but was on the run. They drove in that direction. When they were three (3) block of houses from her house they found the police officers with Accused 3 who was lying down injured on the leg. They were then taken to Central Police Station.

She gave the registration number of the Corolla as RCL 012 G.P.

After the 3^rd accused had left the car and went to Tashas Supermarket at Pelandaba the fourth accused told her that they had gone to look for some money from the shop meaning that they had gone to rob the shop using firearms. This was after a shot had been fired. After she and Accused 2 had located Accused 3 along Luveve Road he told the second accused that Accused 1 may have been apprehended at Tashas Supermarket in Lobengula; which turned to be the correct.

The witness finally emphasized that all the four (4) accused persons were at Tashas Supermarket at Pelandaba on 24 January 2009.  She had no reason to lie against any one of them.

The first witness was Natally Natasha Sibanda who has been in custody since October 2009 as she had been regarded as an accomplice in this matter. The customary warning was administered in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Thereafter, the witness told the court that she was 20 years old and was not employed. She frankly told the court that she was a lady of the night or a sex worker. It was her evidence that she knew the accused as a person who lived in Victoria Falls. She often met him in bars and beerhalls in Victoria Falls. In fact, when she arrived in Victoria Falls from her rural home in Filabusi she rented a room at the accused's parent's house but the accused was not living there during that period. He did not live at his parent's house when she rented a room there. She said the accused had never proposed love to her. She was never his girlfriend. She had never had sex with him - even as a sex worker. She emphasized that she had never talked business with him.

She did not know the deceased prior to the fateful day.

On that day, she left Muboyi Bar around 3am to go to the Chinotimba Sports Bar where she found the deceased standing by a corner in the bar. He asked her what drink she would like to have and she told him that she would like to have a black label beer. He bought her 3 pints of black label which she started to drink. The two introduced themselves to each other. The deceased had a mobile phone with which he started taking photographs of the witness.

She identified exhibit 4 as the phone.

After taking photographs of the witness, the deceased asked her how much it would cost him to spend a night with her and she told him that it would cost him $20=. He said he did not have the money on him but he had it in his truck at the Truck Port. The parties agreed that she would collect her money at the truck port. They agreed to walk to the truck port. The witness said she was not drunk at that time.  She described herself as a heavy drinker who can go through a crate of beer. That, of course, has to be taken with a pinch of salt in the light of her stature. She has got a small body which is unlikely to take 24 pints of beer. The witness left the Sport Bar with the deceased going to the truck inn. They got to the main Bulawayo Road. As they walked along the road she noticed some 5 people following them. As they continued walking, a car approached and the beam of its lights illuminated the area where the witness, who was with the deceased, and the five people were. She looked back and recognized the accused. She was unable to recognize the other four people because they covered their faces with hats. When the car went past they used a path which cuts through a bushy area. The accused and his colleagues used another bush path also leading in the direction the witness and the deceased were going. The deceased was playing music on his mobile phone as they walked. When they got to a spot where the paths cross each other they met with the accused and his colleagues.

They pounced onto the deceased and the witness.

The accused grabbed hold of the deceased by his neck while he held the witness by his hand. The accused strangled the deceased. The witness broke free from the deceased's hand and ran into the bush and hid behind some trees. The assailants threw the deceased to the ground and began to search his pockets and his shoes. The music on the phone continued while the deceased was on the ground. The deceased could not scream or shout for help because he was strangled. After they had searched him she could hear them saying they should look for the woman who was in the company of the deceased. On hearing that, she moved away from where she was. They searched for her without success. She eventually managed to make her way home. She did not tell anybody for fear of being killed by the robbers.

After 3 or 4 days she went back to Muboyi Bar. When she left the bar going home she met the accused who said to her words to the following effect;

“You prostitute, you are causing my arrest. If I hear something again I will go to prison with you and allege that you are my wife. Or better still, kill you and go to prison once and for all.”

This came as a surprise to her as she had not caused the accused's arrest at that stage and did not know that he had been arrested for murder. She had not yet told the police about what she had seen him doing at that stage. Some two or three days after she had encountered the accused, the police picked her up for questioning about theft cases in Victoria Falls area in general. They asked her if she knew any thieves in Victoria Falls. She told them that she knew the accused. The police did not raise the subject of the murder case at that point. That subject was raised on a different occasion. The circumstances leading to that were that the police decided to raid all sex workers from bars and beerhalls in Victoria Falls and took them to the police station. While she was there she saw the accused who asked her why she had been arrested and she told him that she did not know. Whereupon, the accused told her that if the police asked her about thieves in Victoria Falls she should say she did not know any. On seeing that accused was under arrest she got the courage to tell members of the CID about the murder of the deceased. She told them the role that was played by the accused. She recognized him at the scene of the crime. She told the police that the deceased had taken pictures of her using his mobile phone. When the accused claimed ownership of the phone she challenged him to operate it and take a photograph of her but he declined to take the challenge. He refused to take the golden opportunity to prove that the mobile phone was his. The witness said the phone did not belong to the accused. It belonged to the deceased. It had the photographs of her taken by deceased at the Sports Bar.

On the fateful day, she had seen the accused sitting outside the Sports Bar. The next time she saw him was when he and 4 others were following her and the deceased and next saw him when they pounced on the deceased. He was one who actually strangled him. She said she could not be mistaken about his identity. She knew him very well before he committed the offence. She had no reason to falsely incriminate the accused.

She emphatically denied ever being the accused's girlfriend. She did not know why he was claiming to be her boyfriend when he had never proposed love to her. He had never even offered her money for sex. His claim remained a mystery to her.

The appellant's contention is that this appeal has bright prospects of success on appeal. His belief is based on his view that the trial court did not sufficiently warn itself of the status of Mpilo Nyathi as an accomplice witness.

These courts are indeed alive to the need for the application of this cautionary rule. One of the reasons for this rule is to eliminate the temptation by an accomplice who would, as a self-preservation measure, falsely implicate his/her accomplice. The factors to be taken into account in determining the possibility of falsely implicating the other party is the perceived benefit which will flow to the accomplice if he/she lies against the accused. If there is no benefit accruing on the witness (accomplice) the court will be persuaded to believe his/her story. 

In casu, Mpilo Nyathi had already received her just dessert and therefore there was no other expected benefit on her way. Mpilo Nyathi was given Magadalene Sibanda's Identity Card in order to mislead the complainant. This deceit was orchestrated by the appellant, and jointly executed by both the appellant and Mpilo Nyathi, hence her plea of guilty as there was no way she could have pleaded otherwise. For that reason alone, the trial court was aware that having applied the cautionary rule the need to falsely implicate the appellant was not present in view of the overwhelming evidence presented by Mpilo Nyathi.

What has been placed before us on Accused 5 and 6 is contained in warned and cautioned statements of their co-accused persons, in particular Accused 1 and 2.

It is trite that those cannot be used against Accused 1 and 2's co-accused persons. A warned and cautioned statement is evidence only against the maker of the statement and is not evidence against any other person. See section 259 of Criminal Procedure and Evidence Act. However, when the maker of that statement repeats it from the witness box, such evidence is admissible against the co-accused.

Because of the dangers of false incrimination which exist with accomplice evidence, this evidence must be approached with caution.

The court must be satisfied that the inherent danger of relying on this testimony has been eliminated and that the evidence can safely be relied upon.

Simiso Nxumalo was the Mine Foreman employed by Accused 3. 

This witness was present when the deceased was abducted at his homestead, tied with a shoe lace and taken to the mine where he was assaulted.

He was therefore warned, as a suspect witness, according to law.

His evidence is substantially similar to and corroborative to that of Abednego Moyo. He confirmed that when they went to collect the deceased they were using a saloon family vehicle of the make of a Nissan Sunny and certainly not a van. Simiso Nxumalo confirmed that either Accused 1 or 2 tied the deceased with a shoe lace as they sat with him in the back seat of the vehicle while himself and Accused 3, who was driving, were sitting in front. He confirmed that when they got to the mine, the deceased was ordered to lie down and Accused 3 instructed that he be thrashed with switches by Accused 1 and 2 - which they did. As he moved away to light a cigarette, the deceased cried out to him as he was nine (9) paces away asking him to come to his rescue. This prompted him to plead with the assailants to stop the assault - which they did.

This witness confirmed that Accused 3 was present at the scene of the assault and that when the first assault stopped Accused 3 demanded compensation from the deceased. When he was offered a goat Accused 3 was not impressed and ordered Accused 1 and 2 to fetch more switches and assault him more. When they were assaulting him the second time, the deceased escaped. The witness said about 3 minutes had elapsed after the deceased started running when Accused 3 ordered Accused 1 and 2 to give chase, apprehend him, so that they could take him to the police station. He said the scream made by the deceased from the bush was heard after about 20 to 25 minutes after he had run away. When they followed into the bush they found that the deceased had died.

This witness prevaricated as to what report they had given at the clinic and at the police station on how the deceased had died saying that at that stage the police had not asked a lot of questions.

This witness could have easily been an accomplice and charged with the accused persons given his active participation in the events which unfolded on the day in question. There are therefore inherent dangers of relying on is testimony which must therefore be approached with caution. We are mindful of the fact that he may have wished to falsely implicate others in order to shield himself away from prosecution.

Having warned ourselves of such dangers, we are satisfied that such dangers have been eliminated, especially considering that most of his testimony has been corroborated by not only Abednego Moyo but also, to a large extent, by the accused persons themselves.

The evidence of Shingairai Shoko was preceded by the warning in terms of section 276 of the Criminal Procedure and Evidence Act [Chapter 9:07] because of her being an accomplice to the offence charged against the accused.

It was contended by counsel for the appellant that the conviction must be set aside on the grounds that the failure by the trial magistrate to warn the accomplice witness was a misdirection which warranted interference by this court in the verdict rendered by the magistrate.

Before us, counsel for the State conceded that the learned trial magistrate failed to warn Mpilo Nyathi in accordance with the provisions of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07].  However, despite this concession, it was the contention by counsel for the State that the failure to warn the witness did not affect the cogency of the witness's evidence nor her credibility as a witness. It was further argued that the requirement for warning an accomplice witness merely serves to warn the witness that he or she was compelled to answer all questions put to such witness notwithstanding that some or all such questions may tend to incriminate the witness.

The court was referred to R v Simakonda 1965 R & N 465; and S v Ngara 1987 (1) ZLR 91 as authority for the proposition that a failure to warn an accomplice witness against giving false evidence on the commission of an offence is a misdirection.

Section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] reads:

“F. Evidence of accomplices

267 Accomplices as witnesses for prosecution

(1) When the prosecutor, at any trial, informs the court that any person produced by him or her as a witness on behalf of the prosecution has, in his or her opinion, been an accomplice, either as principal or accessory, in the commission of the offence alleged in the charge, such person shall, notwithstanding anything to the contrary in this Act, be compelled to be sworn or to make affirmation as a witness and to answer any question the reply to which would tend to incriminate him or her in respect of such offence.

[Subsection substituted by section 22 of Act 9 of 2006.]

(2) If a person referred to in subsection (1) fully answers, to the satisfaction of the court, all such lawful questions as may be put to him, he shall, subject to subsection (3), be discharged from all liability to prosecution for the offence concerned and the court or magistrate, as the case may be, shall cause such discharge to be entered on the record of the proceedings.

(3) A discharge in terms of subsection (2) shall be of no effect and the entry thereof on the record of the proceedings shall be deleted if, when called as a witness at the trial of any person upon a charge of having committed the offence concerned, the person concerned refuses to be sworn or to make affirmation as a witness or refuses or fails to answer fully to the satisfaction of the court all such lawful questions as may be put to him.”

A reading of the section in question confirms that the warning is primarily aimed at an accomplice witness who is yet to be tried and charged. The procedure to be adopted is that the prosecutor is required to advise the magistrate that the witness is an accomplice who is yet to be charged. In turn, the magistrate is required to warn the witness that he is required to give evidence and to answer any questions truthfully notwithstanding that the questions might tend to incriminate him.

Although the trial magistrate states, in the judgment, that a warning in terms of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] had been issued to the accomplice witness prior to her giving evidence, the record does not confirm the statement of the learned magistrate.

The evidence of Mpilo Nyathi was critical to the State case as she was identified as the person who purported to act as Magdaline Sibanda the owner of the immovable property.

Indeed, the learned magistrate convicted the appellant primarily on the basis of the evidence adduced by Mpilo Nyathi on the involvement of the appellant in the whole scheme. Given the clear provisions of section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07], the failure, on the part of the magistrate, to warn the witness to tell the truth would not amount to a misdirection. The witness had already been convicted and sentenced. There was thus no fear that she could be compelled to answer any questions that could incriminate her. She could not be tried twice for the same offence.

However, that being said, the magistrate was obliged to treat the evidence of the accomplice with caution and the learned trial magistrate accepted that there was need to treat the evidence of Mpilo Nyathi with caution. It is clear from the record that the magistrate was alive to this requirement and the principle that the evidence of an accomplice should be treated with caution unless it was corroborated by evidence aliunde.

The principle is set out in section 270 of the Criminal Procedure and Evidence Act [Chapter 9:07] in the following terms:

“270 Conviction on single evidence of accomplice, provided the offence is proved aliunde

Any court which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment, summons or charge under trial on the single evidence of any accomplice:

Provided that the offence has, by competent evidence other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court to have been actually committed.”

The reason for the existence of the cautionary rule regarding the evidence of accomplice witnesses in criminal trials is trite.

An accomplice is a self-confessed criminal and various considerations may lead him to falsely implicate an accused person, such as a desire to shield a culprit, or the hope of clemency - where he has not already been sentenced. Additionally, by reason of his inside knowledge, he has a deceptive facility for a convincing description of the facts, his only fiction being the substitution of the accused for the real culprit.

The rule requires that the court should warn itself of the danger of convicting on the evidence of an accomplice. Having done so, by contrasting the evidence of the accomplice with that of the accused and viewing it against all the surrounding circumstances and the general probabilities of the case, the court must be satisfied, beyond a reasonable doubt, that the danger of false incrimination has been eliminated. It is not enough for the trial court to merely warn itself of the dangers of false incrimination and then to convict simply on its faith in the honesty of the accomplice witness, based on nothing more than his demeanor and the plausibility of his story.

The requirements in regard to accomplice evidence are aptly summarized in S v Mubaiwa 1980 ZLR 477 to be the following…,.:

(i) In exercising the caution which was necessary before acting upon the evidence of an accomplice, the court had to deal separately with the case of each appellant;

(ii) Quite apart from the requirements of section 292 of the Criminal Procedure and Evidence Act [Chapter 28] (now repealed), a trial court had to warn itself of the danger of acting on the evidence of an accomplice;

(iii) The best way to be satisfied that an accomplice was reliable was to find corroboration implicating the accused;

(iv) The risk of accepting accomplice evidence would be reduced if the accused person was found to be a liar or did not give evidence to contradict that of the accomplice;

(v) But in the absence of the features in (iv) the court could convict if, being aware of the danger, it was satisfied that it could rely on the evidence of the accomplice, because of the merit of the accomplice, as against the accused as a witness was beyond question;

(vi) In the case of (v), if corroboration was necessary it had to be corroboration implicating the accused person and not merely the corroboration which met the requirement of section 292, i.e. corroboration in material aspects. (See R v Lembikani & Anor 1964 R. & N. 7).

In his Defence Outline, the appellant denied that he was acquainted with Mpilo Nyathi prior to the commission of the alleged offence. He told the court that he saw her for the first time after she walked into his office claiming that she was Magdalene Sibanda. She had then requested his assistance in the sale of her immovable property. According to the appellant, she had in her possession all the relevant documents. Believing that she was who she purported to be, the appellant accepted the mandate and advertised the property in the newspaper. The complainant responded to the advert and went to view it.  She was accompanied by her father. She made an offer and an Agreement of Sale was prepared for signature by both parties. Upon signature, the complainant paid the purchase price in full from which the appellant was paid 5% as commission. The appellant then advised the parties to go to Lazarus & Sarif to have the property transferred to the complainant's name. However, before this could be done Mpilo Nyathi disappeared and efforts on the part of the complainant proved difficult.

The complainant then caused their arrest and initially Mpilo Nyathi denied knowing the complainant and it was only after both the appellant and the complainant had insisted that she admit her involvement that she admitted having signed the Agreement as Magdalene Sibanda. The appellant told the court that Mpilo Nyathi had implicated him in the commission of the offence purely out of malice as he had no connection with her prior to the transaction in which his assistance had been sought for the sale of the property in question.

The appellant gave evidence on oath in his defence.

The trial magistrate was persuaded to find that the witnesses for the State were credible, and, as a result found the appellant guilty of the offence with which he had been charged.

What emerges from the record is that the learned magistrate warned herself of the dangers of accepting the evidence of a single witness unless there exists sufficient evidence aliunde pointing to the guilt of the accused before convicting such accused person. The mere fact that that there is evidence aliunde that the offence has been committed does not mean that the accomplice's evidence must not be approached with caution. The accomplice's evidence must be corroborated, but the corroborative evidence need not implicate the accused. It is sufficient that the accomplice's evidence be corroborated in a material respect. The principle was succinctly spelt out by QUENET JP in R v Juwaki and Anor 1965 (1) S.A. 791(S.R., A.D)…, as follows:

“I do not agree that in every case where imperfections exist in the evidence of an accomplice there must necessarily be corroboration of his evidence implicating the accused. As was pointed out by SCHREINER JA in R v Ncanana 1948 (40 S.A. 399 (A.D.), that is the best but not the only way of reducing the danger of false incrimination, and see R v Mpompotshe 1958 (4) S.A. 471 (A.D.). The legal position as stated by CLAYDEN CJ in these terms:

'The principles which apply were set out in Rex v Ncanana 1948 (4) S.A. 399 (A.D.), and were confirmed more recently in R v Mpompotse 1958 (4) S.A. 471 (A.D.). I do not propose to set out in full what was said by SCHREINER JA in those two cases. He said that, quite apart from the section, a trial court had to warn itself of the danger of acting on the evidence of an accomplice. He said the best way to be satisfied that the accomplice was reliable was to find corroboration implicating the accused. But he also said that the risk in accepting accomplice evidence would be reduced if the accused person was found to be a liar or did not give evidence to contradict that of the accomplice. And he said that in the absence of these features, the court could convict if, being aware of the danger, it was satisfied that it could rely on the evidence of the accomplice because the merit of the accomplice, as against the accused, as a witness, was beyond question. In the later cases it was stressed that if corroboration was necessary it had to be corroboration implicating the accused person and not merely the corroboration which meets the requirements of the section, corroboration in material respects.'”

(See Lembikani & Anor 1964 R & N 7, delivered in the Federal Supreme Court on 11^th February 1964).

Where there are imperfections in the evidence of an accomplice and there is no corroboration of his evidence implicating the accused, the question remains whether there are other features which reduce the danger of false incrimination and if there are, whether they reduce it to the point where there is no reasonable possibility that the accused has been falsely implicated. Indeed, that was the manner in which CLAYDEN CJ approached the question of the correctness of the second appellant's conviction in Lembikani & Anor 1964 R & N 7. And may I say that in considering whether the danger of false incrimination has been satisfactorily removed, the need that the other features should be strong and significant must, in each case, be related to the quality and character of the accomplice's evidence and the degree of its impeferctions.

The special danger of false implication is not met by corroboration of the accomplice's evidence in material respects not implicating an accused. Nor is it met by proof aliunde that someone else committed the crime. The risk will be reduced if, in the most satisfactory way, if there is corroboration implicating the accused. It will also be reduced if the accused is shown to be a liar, does not give evidence to contradict or explain the evidence of the accomplice. The risk will be further reduced, even in the absence of the above features, if the court recognizes the inherent danger of convicting on the evidence of an accomplice, and appreciates that the acceptance of the accomplice's evidence and rejection of that of the accused person is only permissible where the merits of the former and the demerits of the latter, as witnesses, are beyond question.

See R v Ncanana (3) 1948 (4) S.A. 399 (A.D)…,.

However, although the learned trial magistrate warned herself of the dangers of convicting an accused on the sole evidence of an accomplice, she did not go further to find evidence on the record that corroborated the implication of the appellant by the accomplice witness.

Also critical to this enquiry is the source of the documents that were used in the fraud.

Whilst the witness stated that the appellant had the documents and exhibited them to her, the position of the appellant was that these documents were brought to him by Mpilo Nyathi. He stated that she identified herself as Magdalene Sibanda.

The evidence of the complainant was to the effect that the supposed Seller produced a national identity card which had her picture and names. The identity document was given to the witness to confirm that the supposed Seller was indeed Magdalene Sibanda. The title deeds were, at the same time, handed over to the appellant, presumably for his perusal. Clearly, the national identity document was a critical feature in the transaction as it would satisfy the Purchaser as to the authenticity of the Seller and the genuineness of the transaction. Despite this clear evidence from the complainant, the court did not have regard to the improbability of the appellant having procured the document depicting Mpilo Nyathi as Magdalene Sibanda. If her likeness was on the national identity document then her version that she had merely been called in to pretend to be Magdalene Sibanda would not be credible. She had to explain how her likeness was depicted on the national identity document of some other person. She did not suggest that the appellant had asked her to furnish him with her photograph in order to perpetrate the fraud.

There is some conflict on the evidence as to whether the identity document was of metal or paper. What, however, is not in dispute was that the complainant was persuaded that the person whose face was depicted on the identity document was the accomplice witness Mpilo Nyathi. If Magdalene Sibanda's face had not been on the document the fraud would not have succeeded. It was only when the complainant went looking for the supposed Seller, for purposes of having transfer effected, that the reality of the fraud struck her. The person who signed the Agreement of Sale, and whose likeness was depicted in the identity document exhibited to her, was not the same person who she found at the property which had been sold to her and identified herself as the registered owner.

The unmistakable conclusion is that the witness participated in the fabrication of the document.

Clearly, there were imperfections in the evidence of the accomplice witness. There is, in fact, no evidence corroborating her evidence in material respects. The other features that would tend to reduce the risk of false implication are absent and were not even adverted to by the magistrate. Critically, one of the most important features is the impression created by the accused as a witness. The court a quo criticized the appellant in the following terms:

“It is correct to assume that when the accused was approached by the Seller seeking his services as an agent the accused went as far as seeing the property for sale to satisfy himself that the property existed and then went on to place an advert in the newspaper describing the property so as to seek buyers. If indeed the owner of the property was not selling the property or was not the person who approached the accused person it should have been detected at this stage.”

At no time in the judgment is the appellant accused of telling untruths or being a liar. The criticism is limited to the manner in which he dealt with his mandate as an agent; that he should have gone to view the house being offered for sale.

The judgment also criticizes Magdalene Sibanda.

It is suggested, in the judgment, that when the complainant went to view the property there was someone at the property and that the visit by the complainant ought to have alerted Magdalene Sibanda of this imminent threat to her property. The magistrate also wondered how the title deeds and the identity document could have ended up where they did if Magdalene Sibanda was not acquainted with Mpilo Nyathi and the appellant.

What the court missed, which was critical in my view, was how the accomplice obtained an identity document bearing the name of Magdalene Sibanda but bearing her likeness.

Both the complainant and the appellant stated that Mpilo Nyathi had a metal identity document with her likeness in the name of Magdalene Sibanda and they accepted that the identity document was genuine and authentic. The learned trial magistrate did not make any findings as to the credibility of the two on this material aspect of the evidence. This evidence points to the fact that the accomplice had obtained documents in Magdalene Sibanda's name, and, further, that she was masquerading as Magdalene Sibanda. After the fraud, Mpilo Nyathi disappeared from the scene and only emerged when the police got involved. As a result, due to the imperfections, should have found corroboration from the evidence of the complainant on the material aspect that the appellant connived with Mpilo Nyathi to misrepresent to the complainant that Mpilo Nyathi was Magdalene Sibanda, the owner of the immovable property which was the subject matter of the fraud. The only evidence to that effect was from Mpilo Nyathi and this was the critical issue for determination in the guilt of the appellant.

It is evident that in assessing the evidence of the accomplice witness the magistrate did not have regard to the requirements set out in S v Mubaiwa 1980 ZLR 477. In her analysis of the evidence adduced before the court, the learned magistrate appeared to shift the onus to the appellant to establish his innocence where the State had not established his guilt beyond a reasonable doubt.

The mere fact that the appellant advertised a property for sale, on its own, would not necessarily lead to a conclusion that he was guilty of fraud. It is beyond doubt that the magistrate considered the advertisement of the property by the appellant as the grounds for a finding of guilt on the part of the appellant. The evidence of the appellant was subjected to the kind of scrutiny that should have been applied to the evidence of Mpilo Nyathi. Describing the appellant as a middleman, the court considered that it was imperative upon him to have verified the authenticity of the documents used in the fraud. The court should have asked itself what convinced the complainant that the identity document revealed Mpilo Nyathi as Magdalene Sibanda. If the appellant was just a middleman, how did Mpilo Nyathi's likeness appear on identity documents bearing Magdalene Sibanda's personal details and likeness? The court also did not mention any evidence aliunde, which would confirm the appellant's role in the deception. The evidence of Magdalene Sibanda actually put in doubt the complicity of the appellant in the commission of the offence.

The established facts were that Mpilo Nyathi had the national identity documents for Magdalene Sibanda and the original title deeds to the immovable property in her possession. The facts established were that Mpilo Nyathi posed as Magdalene Sibanda and executed documents relating to the fictitious Agreement of Sale resulting in the complainant losing substantial sums of money. Even though Mpilo Nyathi admitted taking part in the fraud, there was need for corroboration on the role that the appellant was alleged to have played in colluding with Mpilo Nyathi to act as Magdalene Sibanda and misrepresent to the complainant that she was the real owner of the property in question. This necessary piece of evidence was never before the court a quo, and, in its absence, the court could not have come to the conclusion that the accomplice had properly implicated the appellant.

In my view, the court a quo failed to give proper consideration to the cautionary rule relating to accomplice evidence and the only logical conclusion is that there was insufficient evidence upon which the appellant could have been convicted of fraud.

In view of the finding that the evidence of Mpilo Nyathi could not be found to be credible in the absence of evidence aliunde corroborating her implication of the appellant, there is no need to examine the other grounds of appeal. 

Accordingly, the conviction must be vacated….,.

It does seem to me that a perusal of the proceedings in the court a quo are stalked by the failure by the court to appreciate that in dealing with the evidence of the complainant, Vusumuzi Ndhlovu, the court was clearly dealing with the evidence of an accomplice.

L. H. HOFFMAN and D. T. ZEFFERTT, in their discussion on accomplices, refer to an accomplice as basically “a person who has participated or assisted in the commission of a crime other than the perpetrator.” The South African Law of Evidence, 4th Edition (Butterworths)…,.

It is common cause that the complainant allegedly dealt with the accused secretly in giving him the first $100= dollars.

Section 267 of our Criminal Procedure and Evidence Act [Chapter 9:07] speaks to the procedure that the court must follow in dealing with an accomplice witness. Although this issue was highlighted to the court a quo by the applicant's counsel, both the presiding magistrate and the prosecutor did not seem to understand this position. The result was that an accomplice witness was treated like an ordinary witness for the State. The view that I take is that the Appeal Court must be allowed to deal with refined arguments on this issue which was clearly not fairly dealt with in the lower court. This witness was central to the prosecution of the applicant and it is possible that failure to appreciate the legal status of this witness might be regarded as a misdirection that goes to the root of the whole proceedings.

It is quite doubtful that the Appeal Court will endorse the position adopted by both the magistrate and the prosecutor that the principle witness in this case was not an accomplice in the light of the specific provisions of the law regulating the conduct of proceedings in dealing with such witnesses. The situation gets worse when one notes that there was no attempt by the presiding magistrate to invoke the necessary precaution of warning himself against the danger of convicting the appellant upon the evidence of the complainant.

It is trite that where the court is dealing with the evidence of an accomplice;

“The court should warn itself of the danger of convicting upon the evidence of an accomplice and show that it has heeded the warning by pointing to some factor which can properly be regarded as reducing the risk of convicting an innocent person.” The South African Law of Evidence, 4th Edition (Butterworths)…,.

It was critical, in the lower court proceedings, for the prosecution to adequately deal with the issue of the recovery of the trap money from the applicant. The record of proceedings will show that there is no unanimity amongst the witnesses as to how the $100= was recovered from the accused at Edgars Stores. The applicant's position is that this money was planted on him by the arresting details. I. M. Makondora, one of the key witnesses, seems to concur with the applicant's position on this issue if the record of proceedings is anything to go by as evidenced by the following exchanges in the record of proceedings;

“Question by DC to this witness

Q. The accused will say you manhandled, pushed, and shoved by the man who dragged him outside and shoved in a vehicle and shown a $100= note?

A. Nothing like that happened. We held him by the belt, showed him the $100 note and a photocopy of the money.”…,. (sic)

On record, page 26, I. M. Makondora gives yet another complicated or unclear version of what transpired. The witness said the applicant co-operated and gave him the trap money in the presence of one Z. Mangizi, a Safeguard Security Officer. But alas! When Mangizi testified, he was clear that he did not witness money changing hands between the accused/applicant and the arresting officers. Contrary to the evidence of the arresting details, the witness testified that the officers struggled with the accused inside the shop and even left the shop without him having seen any money changing hands.

Alifanos Toringa, a sergeant in the ZRP, one of the arresting details, did not speak with conviction when questions were put to him about whether or not he saw the complainant handing over the trap money to the applicant. Even the presiding magistrate was satisfied that this witness was not candid with the court on this aspect. The record of proceedings will also show that the arresting details, being police officers and, as such, being persons in authority were allowed to utter otherwise inadmissible confessions by the accused in clear violations of what has become elementary procedure. See S v Nkomo 1989 ZLR (3) (S)…, per McNALLY JA.

It will be noted that one of the pieces of evidence which tended to link the accused to the commission of the offences charged were the telephone exchanges between the applicant and the complainant. The accused gave a reasonably possible explanation for such telephone exchanges….,.

Given the manner in which the evidence was presented and assessed in this case, I am unable to come to the conclusion that the applicant's appeal is a hopeless one to the extent of holding it to lack prospects of success.

The applicant's appeal is arguable.

As indicated before, one may not be able to separate the likelihood of abscondment from the prospects of success. These two are interconnected. For these reasons, I feel more inclined to grant the applicant bail pending appeal on the unchallenged terms outlined in the draft order to his application.

It is hereby ordered that:

1. The applicant be and is hereby granted bail pending appeal on the same bail conditions as were in force under his bail pending trial under CRB2959/15, X Ref CRB Reg 125/16, that is to say:

(a) The Clerk of Court (Criminal) Magistrate Court, Bulawayo shall retain:

(i) The US$500= bail deposit paid under CRB2959/15 as the applicant's bail in this case.

(ii) The applicant's passport, also surrendered under CRB2959/15, pending the finalisation of the applicant's appeal under HCA41/16.

The appellant and another were convicted of stock-theft as defined in section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] after a full trial….,.

He appeals against both conviction and sentence.

His various and vague grounds of appeal, which do not meet the requirements of the Rules of this court, are a feeble attempt to state that the evidence led during trial did not meet the threshold of proof beyond a reasonable doubt.

The court a quo found that the appellant, together with his accomplice, had stolen the two bovines and hired the second State witness, who owned a motor vehicle, to ferry their ill-gotten loot into Chitungwiza. He charged them US$30= for the trip. He knew the appellant's accomplice. They gave him the story that they had bought meat from the farms just outside Chitungwiza but had failed to bring it home that day. They agreed to embark on the journey the next morning. Upon arrival at their destination, the second State witness, Dimmie Mabhunu, told the court that his vehicle started to overheat. The meat was contained in seven bags which were at an ant-hill. There was a river nearby so he decided to fetch water to resolve the vehicular challenges he faced. From the river he heard local villagers shout “Thief! Thief!” His clients were in trouble. He did not go back. Police picked him up later. The two clients were arrested by the locals for stock theft. Police decided to charge the two after he explained that he was unaware that the cargo was stolen.

The court correctly observed that the second State witness, Dimmie Mabhunu, was a possible accomplice whose evidence needed to be treated with caution. In the basic sense, an accomplice witness means a witness to a crime who, either as principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offence, and whether or not he or she was present and participated in the crime. The word 'accomplice' has not been defined by the Zimbabwe Criminal Procedure and Evidence Act [Chapter 9:07]. However, a perusal of the case law appears to suggest that, in Zimbabwe, an accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of crime or who admits that he has a conscious hand in the commission of crime. It can also be said that an accomplice is one concerned with another or others in the commission of a crime or one who knowingly or voluntarily co-operates with and helps others in the commission of crime. An accomplice, in this sense, is a competent witness provided he is not a co- accused under trial in the same case. But such competency, which has been conferred on him by a process of law, does not divest him of the character of an accused. An accomplice, by accepting a pardon under section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], becomes a competent witness, and may, as any other witnesses, be examined on oath; the prosecution must be withdrawn and the accused formally discharged under section 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] before he can become a competent witness. Even if there is an omission to record such discharge an accused becomes a competent witness on withdrawal of prosecution.

It will be clear from the above that Dimmie Mabhunu did not qualify to be treated as an accomplice since, arising from what the appellant must have said to the police, as found by the trial court, the police decided not to treat him as part of the criminal enterprise. Although the police picked him up, or arrested him, in connection with this offence, he was never formerly charged. In other words, he was never treated, by the police, as part of the theft of the two bovines in question. The trial court was fully aware of the need to treat his evidence with caution. It mentioned that he was a “possible accomplice” thereby qualifying his status as a witness from being an accomplice in the strict sense. I am unable, therefore, to agree with the criticism by the appellant's counsel that the witness's evidence ought to have been regarded as coming from an accomplice although, as in tradition, due to his closeness to the events constituting the crime charged, the court was required to treat his evidence with the necessary caution. I am satisfied that it did so.

The learned trial magistrate correctly warned himself of the apparent dangers posed by such type of accomplice witnesses who, out of their intimate knowledge of the manner in which the crime was committed, are so placed as to easily and conveniently embellish their evidence in order to divert attention from their true role by falsely heaping all blame on their fellow accomplices. See S v Ngara 1987 (1) ZLR 91 (S). As such, there is need for corroboration of the evidence led from such witnesses.

The appellant argued that the court erred in disbelieving his story that he in fact had been asked by his friend and accomplice to come along and assist Dimmie Mabhunu to load certain bags of beef from the bush. The reason the beef had been left in the bush was that the place was inaccessible by vehicle. But the magistrate cannot be faulted when he rejected the appellant's version because, by his own admission, Dimmie Mabhunu left to fetch water for his over-heating vehicle. He did not run away as the appellant claims. He and his accomplices were found with the meat. It is a fact that the meat was produce of stolen cattle.

In Last Mupfumburi v State HH64-15…, I said:

“In R v Mokoena 1956 (3) SA 81 (A) at 85-86 it was laid down that the uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would. The court stated that single witness evidence should not be relied upon where, for example, the witness had an interest adverse to the accused, or has made a previous inconsistent statement, has given contradictory evidence or had no proper opportunity for observation. However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A), the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23-88. See also Worswick v State SC27-88; S v Mukonda HH15-87; S v Nemachera SC89-86; and S v Corbett 1990 (1) ZLR 205 (S).”

In the present case, I am satisfied that the State has established proof of guilt beyond a reasonable doubt, notwithstanding the fact that the appellant had been subjected to assault by villagers. That assault ought to be subject of separate police investigations which in no way tainted the quality of the evidence adduced during the appellant's trial by the court a quo.

In the circumstances, therefore, the appeal against conviction fails.

The appellant appeared before the Magistrates Court sitting at Gweru on 24 October 2014 jointly charged with a security guard employed by Zimpost Gweru, which also employed him as Postal Manager, of theft in contravention of section 113(i)(a) and (b) of the Criminal Law Code [Chapter 9:23].

Following a full trial in which the State led evidence from two witnesses, also security employees of Zimpost, the two of them were convicted…,.

Aggrieved by that outcome the appellant has appealed to this court against conviction. His main gripe with the conviction is that the court a quo relied entirely on the evidence of his co-accused who was, for all intents and purposes, an accomplice. In doing so, the court a quo did not apply the cautionary rule to warn itself against the inherent danger of false incrimination.

The appellant's troubles started when Zimpost tried to auction what must have been a non-runner Mazda B1600 motor vehicle registration number ABP 5985 on 2 December 2012 only to discover that it had a gear box and prop shaft missing. The theft was then reported to Clever Nyavaranda, then a security officer at Zimpost who was based in Harare. Breathing fire and brimstone, Clever Nyavaranda descended on Gweru Zimpost to investigate the matter. He says he gathered all the guards and read the riot act to them. He says he informed them that one of them was involved in the missing parts of the motor vehicle.

It was then that one of the guards, Tapera Mapfumo, disclosed that while he knew nothing about the gear-box, he was aware that a prop shaft had been removed by the appellant in his presence. Probed further, Tapera Mapfumo led them to a site about 45m from where the vehicle was parked where he retrieved the prop-shaft from a drain where it was hidden under some leaves. The appellant was subsequently arrested and jointly charged with Tapera Mapfumo aforesaid.

At the trial, none of the two State witnesses implicated the appellant. All they could say was that they acted on information obtained from Tapera Mapfumo. Only the latter implicated the appellant when he presented his defence. He stated that the appellant had advised him that he desired to remove a prop shaft from the Mazda motor vehicle to fit it on his own vehicle in Kwekwe. He went on to say that on another day, while he was on duty guarding the complainant's property at night, the appellant had come and removed the prop shaft from the vehicle before hiding it in the drain from where it was later recovered following indications made by Tapera Mapfumo. Although he acknowledged that his duties were to “safeguard company property” Tapera Mapfumo did not stop the appellant neither did he arrest him.

It is only on that basis that the appellant was convicted.

In its judgment, the court a quo proceeded headlong to accept the evidence of Accused One hook, line and sinker without any regard whatsoever to the fact that he was an accomplice whose evidence was very suspect. This is what the court said on that issue in its judgment…,.

“In analyzing the evidence adduced, the court realizes that the only evidence linking the 2^nd accused (the appellant) to the offence is the first accused's testimony pertaining to the prop shaft. The 1^st accused's testimony was further corroborated by the 2^nd State witness who confirmed to the court that he was informed by the 1^st accused that 2^nd accused approached him wanting to be helped to remove the propshaft from the said vehicle. Supposing the 1^st accused is making false allegations against the 2^nd accused it has to be proved to the court that the 1^st accused had such a motive. From the evidence adduced, it appears there is no bad blood between the two accused persons and neither is there bad blood between the 2^nd State witness and 2^nd accused.”

The naivity exhibited in the foregoing passage of the judgment of the court a quo is disarming.

In the first place, there was no corroboration at all. It occurs to us that what was meant to be corroborated was Tapera Mapfumo's story that the appellant had approached him while he was on duty and requested his assistance in removing the prop-shaft and that he had subsequently removed it and hidden it. The fact that he had repeated the same story to his two superiors, Mhlanga and Nyavaranda, before saying it in court cannot, by any stretch, be taken as corroboration. It is just one story said to the investigators and repeated in court.

According to ROWLAND REID.., corroboration means evidence, other than that of the complainant, which is consistent with the complainant's version of facts and which tends to show the guilt of the accused. To be of evidential weight, the facts corroborated must be material ones. It is a salutary principle of our law of evidence that a witness cannot corroborate himself.

Yet this is exactly what Tapera Mapfumo did in the mind of the court a quo. He told a story implicating the appellant in court which story he had told both Mhlanga and Nyaravanda. Having done that, the court accepted, as corroboration, the same story when it was told by those two merely repeating what Tapera Mapfumo had allegedly told them outside court. It cannot be corroboration.

In the second place, there is nothing to suggest that the court was alive to the fact that it was dealing with the evidence of an accomplice which is inherently suspect and must therefore be treated with caution. It did not warn itself at all of the dangers inherent in relying on such evidence. An accomplice's evidence is treated with caution because he is himself guilty of criminal conduct and is therefore badly conflicted. He may therefore lie to the court in the hope of ingratiating himself in the eyes of the court or may do so in the hope of exculpating himself, shifting the blame for his own conduct onto someone else.

When dealing with accomplice evidence, the court is therefore required to apply the cautionary rule and warn itself against the danger of false incrimination which exists with accomplice evidence. It must be satisfied, beyond a reasonable doubt, that the danger of false incrimination has been eliminated. See S v Mubaiwa 1980 ZLR 477.

Whichever way, the conviction was improper as the court relied on the uncorroborated evidence of an accomplice, the co-accused, which was a misdirection. It cannot stand.

In the result, it is ordered, that:

1. The appeal against conviction is hereby upheld.

2. The conviction of the appellant is set aside and substituted with the verdict that the appellant is hereby found not guilty and acquitted.

Pheneas Nhatarikwa, a co-accused…, testified that when both accused stopped him they appeared to be fleeing from the commotion.

We believe Nhatarikwa's evidence in this respect as they are fighting from the same comer. His evidence on that point of fact was virtually unchallenged and he had absolutely no reason to misrepresent facts against the accused.

Counsel for the accused says Kudakwashe Musvamhuri and Kizito Mutongoza should not be believed because they were accomplices to the murder. They were once arrested and remained on remand for close to three years before they were turned into State witnesses. As such, their evidence should not be accepted since they had the motive and the intention to incriminate the accused and thereby save themselves from any possible prosecution of the crime.

But, with all due respect, the defence is mistaken. In relation to the alleged murder of the deceased, Kuda and Kizito were not accomplices in the sense contemplated by section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07]. They were not turned into State witnesses and granted immunity from prosecution on condition they answered all questions put to them satisfactorily. As counsel for the State explained, the State made the decision that the police had arrested and charged them wrongly. There was no intention to prosecute them.

An accomplice is an accessory to the commission of the crime. He is not the actual perpetrator. His liability stems from his own conduct [coupled with the requisite mens rea] but which is accessory in nature: see JONATHAN BURCHELL, South African Criminal Procedure Vol 1 General Principles of Criminal Law, 4^th ed….,. and S v Williams 1980 [1] SA 60 [A]…,. The accomplice wittingly makes common cause with the actual perpetrator of the crime. He affords the actual perpetrator the opportunity, the means and the information that furthers the commission of the crime. But he lacks the actus reus of the perpetrator.

Plainly, Kuda and Kizito fall outside the definition of an accomplice. If the accused is to be believed, Kuda was the actual perpetrator of the crime from his own individual act. If he should be charged, and the accused's allegations were proved, Kuda would be guilty as the actual perpetrator, not as an accomplice.