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

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

Having found no misdirection on the part of the trial court, this court finds no basis for interfering with the lower court's findings. As remarked by KORSAH J in S v Masawi and Anor 1996 (2) ZLR 472 (S) commenting on the findings of a lower court; “If these findings have support in the facts established ...
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HH142-12 : THE STATE vs STEPHEN ZAKEYO
Ruled By: HUNGWE J and MAVANGIRA J

The advantage of the trial court which sees and hears witnesses, and is thus in better position than the appeal court, to assess demeanour, credibility and reliability of evidence, is an issue beyond debate. Necessarily, an appeal court is loathe and in fact, is justified only in clearly stipulated circumstances, to interfere with such assessment ...
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HH142-12 : THE STATE vs STEPHEN ZAKEYO
Ruled By: HUNGWE J and MAVANGIRA J

The complainant's evidence is attacked on the basis, amongst others, that there was no evidence of screams or soiled garments to corroborate her story that the intercourse was not consensual...,. I am not aware of any authority, and none has been cited, to the effect that in the absence of screams or soiled garments, there ...
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HH170-09 : SIMBARASHE DAVID CHIEZA vs THE STATE
Ruled By: CHATUKUTA J

I shall proceed to deal with the second and third grounds of appeal jointly as they are interlinked. The second ground of appeal was that the court a quo erred in not making a finding that the rape complaint was not prompt, and only arose after some probing. This contention is premised on the fact that it ...
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HB32-09 : EUNICE MOYO vs THE STATE
Ruled By: CHEDA J and NDOU J

The appellant was convicted by a Zvishavane Magistrate of possessing 6.46 kilogrammes of dagga. She was sentenced to 36 months imprisonment of which 10 months was suspended for 5 years on the usual conditions of future good behavior.The salient facts of the matter are that the appellant's place of abode, ...
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HB88-09 : ALBERT COSTA CHATIRA vs THE STATE
Ruled By: NDOU J

In any event, the court a quo had the discretion to impose the sentence under the circumstances; it should not be easily fettered with on appeal – S v Ndebele 1996 (1) SACR 419 (A); S v Ramushu and Others S25-93; and S v Dullabh 1994 (2) ZLR 129 (H).
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HB95-09 : GODWELL ZINYAWO vs THE STATE
Ruled By: NDOU J and KAMOCHA J

The only issue is whether she was falsely implicating the appellant. The court a quo believed the complainant's testimony. The learned Regional Magistrate made a finding of fact. The credibility was based on the demeanour of the complainant, and the facts. It is trite law that the assessment of the credibility of a witness is the province ...
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HB95-09 : GODWELL ZINYAWO vs THE STATE
Ruled By: NDOU J and KAMOCHA J

An appellate court will not interfere unless there is something grossly irregular in the proceedings to warrant such interference. There is no such gross irregularity in casu – S v Isolano 1985 (2) ZLR 62 (S); S v Zulu HB52-03; and Marx v S (2005) 4 ALL SA 267 (SCA). In light of the above, ...
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HB97-09 : BRIAN TAPINDWA vs THE STATE
Ruled By: KAMOCHA J and NDOU J

The accused then filed this appeal against sentence only on the following grounds - “The learned trial magistrate misdirected himself (sic) by imposing custodial sentence. The sentence imposed by the learned trial magistrate in the court a quo is wholly inappropriate in that: The learned trial magistrate just imposed a custodial sentence without giving due weight to the mitigating factors; ...
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HB97-09 : BRIAN TAPINDWA vs THE STATE
Ruled By: KAMOCHA J and NDOU J

The foregoing were the reasons why after hearing the appellant counsel's submissions, we felt that there was no need to hear the respondent's counsel and we dismissed the appeal in its entirety and indicated that our reasons would follow in due course. These are they.
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HB129-09 : RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE
Ruled By: NDOU J

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.It took long for the matter to be set down as the ...
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HH37-10 : RICHARD KWENDA and RUSHUMELA BUGASHANE vs THE STATE
Ruled By: MAKARAU JP

Counsel for the respondent then referred to what he termed “grey areas” that surround this case without further elaborating what effect these “grey areas” had on the soundness or otherwise of the conviction of the applicants and the sentence resultantly imposed upon them. I am not persuaded that the trial court erred at all in the ...
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HH37-10 : RICHARD KWENDA and RUSHUMELA BUGASHANE vs THE STATE
Ruled By: MAKARAU JP

It appears to me that every trial, no matter how meticulous the presiding officer is, will have in attendance one or more features that could have been done differently by another presiding officer. That is why the exercise of discretion by the presiding officer is protected in the absence of misdirection that vitiates the proceedings. Again, ...
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SC66-14 : VUSUMUZI NYONI vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and NDOU AJA

The appellant was convicted by the High Court sitting at Hwange of murder with actual intent and sentenced to death. It was alleged that on 14 April 2006, at about 7.30am, he struck Kwanele Ndlovu on the head with a log and an axe resulting in her death. The deceased was aged 21 years and the ...
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HB81-11 : SHADRECK MBEDZI vs THE STATE
Ruled By: NDOU J and CHEDA J

The appellant was convicted by a Beitbridge Magistrate of theft of stock as defined in section 114(2)(a)(i) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. The appellant is alleged to have stolen 19 bovine beasts and drove them to the homestead of Tomani Dube where they were sold….,. The appellant protests both conviction and ...
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HB01-11 : IDAH NYABEZA and MUNYARADZI MURENGA vs THE STATE
Ruled By: CHEDA J and NDOU J

I find that the learned trial magistrate's finding that the appellants' defence could not be sustained in view of the overwhelming evidence led, proper. I am surprised that the respondent finds fault in his finding while all the essential elements have been proved and they are there for everyone to see. In fact, the facts ...
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HB01-11 : IDAH NYABEZA and MUNYARADZI MURENGA vs THE STATE
Ruled By: CHEDA J and NDOU J

The appellants and their witnesses were found not to have been truthful as they did all they could to protect their superiors.
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HB18-10 : RAMSON MASHONGA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

The appellant went on to allege that the trial court was biased in its reasons for judgment because it preferred the version of the complainant to that of his. This suggestion is clearly untenable. The fact that the court rejected the appellant's story does not mean that it was biased. The assertion is baseless. This ground of ...
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HB29-10 : DUMISANI NDLOVU vs THE STATE
Ruled By: KAMOCHA J and NDOU J

Once the issue of identity was resolved, the court a quo had to determine why the complainant would falsely incriminate the appellant. The complainant did not know the appellant before the fateful date. The court a quo found the complainant to be a credible witness. This is a finding on credibility of the witness based on ...
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HB30-10 : RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE
Ruled By: NDOU J

In this case, the issue taken on appeal is primarily one of fact. During the trial we made a factual finding that the applicants were guilty of murder with constructive intent. Such a factual finding cannot easily be overturned by a court of appeal – Hughes v Graniteside Holding (Pvt) Ltd SC13-84 and ...
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HH22-13 : ELDRICK ELVIS MAVHURA vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

The appellant has raised seven (7) grounds of appeal against conviction. The first, second and third grounds of appeal, in essence, raise one ground of appeal the essence of which is that the trial magistrate erred in accepting the six (6) year old child complainant's testimony in the face of inconsistencies in that whilst she ...
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HB39-11 : THE STATE vs JULUMBA NDEBELE
Ruled By: KAMOCHA J and MATHONSI J

I am unable to find any misdirection on the part of the court a quo in respect of the conviction of the appellant. It made findings on credibility of witnesses which the appellate court cannot interfere with in the absence of a misdirection.
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HB50-13 : QHUBEKANI MAPHOSA vs THE STATE
Ruled By: KAMOCHA J and CHEDA AJ

The complainant's evidence reads well and is very clear. It was satisfactory in every material respect. The trial court cannot be faulted for relying on it….,. The complainant's narration of the five counts of rape was very satisfactory and convincing. She was worth to be believed. The trial court, therefore, cannot be faulted for convicting the appellant on ...
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HH27-14 : ALFRED MAMSA vs THE STATE
Ruled By: HUNGWE J and BERE J

At the nerve of the appeal is the averment that the learned magistrate erred in making a finding that the complainant was a credible witness when her own record of proceedings pointed to the contrary. The State Counsel has made a concession of the filed appeal in terms of section 35 of the High Court ...
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HH27-14 : ALFRED MAMSA vs THE STATE
Ruled By: HUNGWE J and BERE J

The court made inferences of guilty when the evidence led left room for several other reasonable inferences that could have been made in favour of the accused person. There was no cogent reason advanced as to why the complainant did not grab the first opportunity presented to her to report the rape case before she ...
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HB117-11 : ANDILE NCUBE and GODKNOWS MHLANGA vs THE STATE
Ruled By: NDOU J and CHEDA J

To me, the trial court made correct findings of fact regarding their identities. These courts will not easily interfere with factual findings by trial courts unless it can be shown that there was clearly no basis upon which a reasonable court applying its mind could have believed the assertions being submitted before it. ...
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HH176-14 : KENNETH MUPAMBA and SIMBARASHE TINOZA vs THE STATE
Ruled By: TAGU J

During the trial, it was found that this appellant participated in the assaults. Such a factual finding cannot easily be overturned by the appeal court – Hughes v Graniteside Holdings (Pvt) Ltd SC13-84 and S v Isolano 1985 (1) ZLR 62 (SC)…,.
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HHB153-11 : JONA NDALAMA vs CHIEF SUPERINTENDENT – HAPPYMORE SIGAUKE and COMMISSIONER GENERAL – AUGUSTINE CHIHURI
Ruled By: NDOU J

I now revert to the merits of the application. What can be gleaned from the record of proceedings is that the allegations at the police trial were the following. On 9 October 2009, police (CID Minerals) Bulawayo arrested one Makadzange Mazarire for illegal dealing in gold. Although the applicant was not stationed at CID Minerals he ...
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HH205-14 : RICHARD MANYUMA vs THE STATE
Ruled By: BERE J and TAGU J

The grounds of appeal are that - “1.The court a quo erred and misdirected itself in failing to consider the evidence of the medical practitioner which clearly raised doubts as to whether there was evidence of sexual assault against the complainant. 2. The court a quo erred and misdirected itself when it failed to take into consideration the evidence ...
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HH206-14 : LOVEMORE DEWA vs THE STATE
Ruled By: BERE J and TAGU J

The basis of the appellant's conviction is that the court a quo erred in accepting the complainant's evidence that he had not been given his money. He thus raised the issue that the complainant's evidence was not corroborated. We were not persuaded by the arguments advanced by the appellant for the following reasons. The appellant and complainant were ...
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HB188-11 : BENJAMIN MAKETO vs THE STATE
Ruled By: NDOU J and MATHONSI J

The appellant has submitted that he did not know that Khulekani Ncube was wanted in connection with the robbery when he went to Mahatshula on 31 July 2002 and that the minutes of meetings held between the Zimbabwe Police and their South African counterparts in January 2002 were not authentic and therefore unreliable. He ...
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HH300-14 : TASIYANA MUKUNA vs THE STATE
Ruled By: HUNGWE J and BERE J

The basis of the appellant's appeal is that the evidence tabled before the court a quo supported neither a conviction on rape nor aggravated assault as found by the court a quo. The appellant argued that a proper reading of the evidence screamed for his acquittal. Counsel appearing for the respondent has indicated, through his ...
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HH312-14 : SAUL MUKARATI vs THE STATE
Ruled By: BERE J and HUNGWE J

As against conviction, the appellant has criticised the evidence that was accepted by the court a quo and argued that, that evidence did not support the conviction. I do not agree. A simple reading of the judgment of the court a quo clearly shows that its criticism is most unfortunate and amounts to no more than a ...
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HH565-14 : JOHN OSWALD MEIKLE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

Finally, it follows from the above analysis, that upon the compulsory acquisition of land, the company lost its rights in the land. But the company continued to exist. What was compulsorily acquired, through gazetting by the State, was the land, not the company. What was sold were shares in the company, EC Miekle (Pvt) Ltd, no ...
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SSC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

The respondent also filed a cross appeal, not against the final order made, but against the findings by the court a quo that the other breaches of the lease agreement had not been proved and that the respondent had not shown it genuinely required the premises for its own use. At the hearing of the ...
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Appealed SC16-14 : SIMBARASHE GIBSON vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

CREDIBILITY OF COMPLAINANT'S VERSION OF EVENTS Counsel for the appellant submits that both the trial court and the court a quo misdirected themselves in accepting the complainant's version of the alleged rape. That version, so he argues, is clearly not credible in light of its cumulative inconsistencies. In particular, it was not possible for the ...
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SC47-14 : MAXWELL BOWA vs THE STATE
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

On a careful consideration of the evidence given during the trial, it is clear that the appellant and his colleagues were of the opinion that Tanaka Nyoni, together with some of his brothers and other persons, were involved in the poaching of elephant from the nearby national parks. It is also clear from ...
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HB113-14 : NTOMBIZODWA TSHUMA vs THE STATE
Ruled By: MAKONESE J and MOYO J

The appellant appeared before the Regional Magistrates' Court at Bulawayo on the 4th July 2013, with a co-accused, one Patrick Tshuma, facing one count of kidnapping as defined in section 93(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Both accused persons pleaded not guilty to the charge, and, after a full trial, Accused ...
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SSC59-14 : PHARAOH MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: GARWE JA, GOWORA JA, and OMERJEE AJA

Finally, it must be mentioned that what the appellant sought to impugn are the findings of fact and credibility made by the court a quo. The approach of the court in matters such as these is now well settled. I cite three cases in this respect. The first is Susan Rich v Jack Rich SC16-01 in ...
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Appealed SC78-14 : ROBERT GUMBURA vs THE STATE
Ruled By: PATEL JA

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic ...
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Appealed SC37-13 : VUSUMUZI MOYO and KHULEKANI NKOMO vs THE STATE
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

The suggestion that the first appellant did not phone the prophet, Sibanda, on the night in question is not borne out by the evidence. The evidence shows that it was on the basis of the call he made to Sibanda, using the deceased's cellphone, that the first appellant was arrested.
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SC05-14 : ABEL SIBANDA vs THE STATE
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

This is an automatic appeal against the conviction for murder with actual intent and sentence of death imposed by the High Court Bulawayo, sitting as a Circuit Court in Hwange on 23 November 2012.The appellant was charged with the murder of the deceased; it being alleged that on 12 October ...
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View Appeal SC20-17 : THE ATTORNEY-GENERAL vs PAUL SIWELA
Ruled By: CHIDYAUSIKU CJ

Turning to the contention of the appellant that the learned Judge misdirected himself by failing to consider the messages in the fliers; the evidence is to the contrary. At pages 4-6 of the cyclostyled judgment, the learned Judge expressed the view that, after considering all the messages in the fliers, the question of whether the ...
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HB07-15 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J

The applicant is a legal practitioner employed at a law firm in Bulawayo. He is aged 36. He was arraigned before the Magistrates' Court on charges of contravening section 136 and 184(1)(e) of the Criminal Law (Codification and Reform) Act.It is alleged, by the State, that the applicant and his ...
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HB09-16 : ARTHUR KAZANGARARE vs THE STATE
Ruled By: BERE J and MATHONSI J

After hearing arguments in this criminal appeal we upheld the appeal against conviction and sentence, substituted the conviction and sentence of the appellant with a verdict of not guilty and acquitted him. We said that the reasons for that outcome would follow. These are they.The appellant, and one other, were arraigned before a magistrate ...
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HH42-15 : BRIAN MURAMBIWA vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant is a haulage truck driver. Besides holding the normal driver's licence, he has a defensive driving certificate. He was convicted of culpable homicide arising from the death of seven commuter omnibus passengers in a road traffic accident which occurred at the intersection of Dieppe Road and Joshua Nkomo Road, Braeside, Harare on ...
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HB125-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs TENDAI CHINEMBIRI
Ruled By: MAKONESE J

The proposed grounds of appeal reflect a general criticism of the findings of the trial court on issues of credibility. The grounds of appeal do not disclose a fundamental misdirection in the manner in which the trial magistrate examined the evidence or handled the case. Findings of fact are traditionally the domain of the trial court.
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HH80-15 : OLEX MAMOCHE vs THE STATE
Ruled By: HUNGWE J and MANGOTA J

The appellant's 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.
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SC82-14 : JIMMY MUPANDE vs THE STATE
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

It is trite that a superior court does not lightly interfere with the findings of a lower court on the issue of credibility. See S v Bezuidenhout SC122-02. In Kombayi v Berkhout 1988 (1) ZLR 53 (SC)…, KORSAH JA stated this principle thus: “Where the question on an appeal from the decision of a judge is one of credibility…, an ...
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HB170-16 : NGQABUTHO MASUKU vs THE STATE
Ruled By: MATHONSI J and MAKONESE J

The appellant was dissatisfied with the conviction…, and noted an appeal to this court on the grounds, inter alia, that the complainant was not a credible witness…., It is an appeal which is strongly contested by the State on the basis that there was no misdirection whatsoever on the part of the court a quo in its findings, and, as ...
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