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 by the trial court.

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 can be no conviction for rape.

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 took some time and number of visits to the clinic and to counsellors, before the complainant finally implicated the applicant.

The third ground of appeal was that the court did not consider that there was bad blood between the appellant and Drapper which would have given rise to the surfacing of these false allegations.

The record reveals that the court a quo addressed these concerns. At p28, the magistrate stated as follows –

“In March 2006, complainant's aunt noticed that the complainant had developed an unusual sleeping habit. She then took the complainant for bilharzias and diabetes tests. If it was Drapper who fabricated these rape charges why would she take complainant for bilharzias tests well knowing that they had fabricated the story against the accused? Why would she wait from March to August to name the culprit if this was Drapper's plan?

The complainant clearly implicated the accused. This was corroborated by:-

(a) a note she wrote to the police; and

(b) her evidence was also corroborated by Drapper.

Complainant further explained that she did not tell anyone because accused had told her not to tell anyone.”

Whilst the complaint was indeed not prompt, the court a quo's findings cannot be faulted.

The trial magistrate believed the complainant's evidence that she had been told by the applicant not to tell anyone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the foregoing, the conviction cannot stand.

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

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.

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).

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;

The learned trial magistrate erred in not considering the mitigating factors, namely, that the accused pleaded guilty to the offence, and that he is a first offender; and

The court a quo erred in not considering the personal circumstances of the accused in that he has a mental disability.”

A look at the trial magistrate's reasons for sentence leaves one with the inescapable conclusion that the legal practitioner who drafted the grounds of appeal merely did so without applying his mind to what he was doing.

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.

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 Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources. The State did not consent to the application nonetheless.

Counsel for the applicants kept his own notes as he was involved throughout the trial.

The approach in such an application was clearly stated in our case law. It is trite that the decision whether or not to grant leave to appeal against the verdict depends on the prospects of success. The matter should be approached on the basis, not of how good the prospects must be before leave is granted, but of how poor they must be before it is refused. The applicant should, therefore, be required to make out a reasonably arguable case, in the sense of there being substance in the argument - S v Mutasa 1988 (2) ZLR 4 (S); S v Tengende 1981 ZLR 445 (S)…,.; S v Woods and Others SC60-93; and S v McGown 1995 (2) ZLR 81 (S)…,.

As regards the application for leave against sentence, such application should be treated less rigidly than the one for leave to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced – S v Woods and Others SC60-93; R v Rowesayi 1969 (1) RLR 140 (A)…,; and S v McGown 1995 (2) ZLR 81 (S)…,.

Coming back to the facts of this case, the State counsel, like in S v Tengende 1981 ZLR 445 (S), did not have sight of the record of proceedings. I made my hand-written notes available to him but he is unable to read my handwriting. It was difficult for counsel for the State to consider the prospects of success in the absence of the record. Counsel for the Sate, therefore, made no serious effort to oppose the application.

I do not suffer the same disadvantage as I read through my notes.

This has been a lengthy trial which commenced on 25 September 2007 and ended on 12 June 2009. The conviction of the applicants was based mainly on the evidence of quasi-accomplice, Siwusu Wilfred Tshabangu, and another witness, Saul Ngwenya. The court rejected the applicants version. These events involved a number of persons, that is the deceased, Siwusu Wilfred Tshabangu and the original four accomplices. The skirmish was fast and there is room for mistake - even by a credible witness. We addressed the issue in detail in our judgment, but there is a reasonable prospect that the Judges of Appeal may take a different view, both in relation to questions of fact and of law – R v Kuzwayo 1949 (3) SA 761 (A)…,.

In the circumstances, so far as the verdict is concerned leave to appeal has to be granted.

As alluded to above, so far as sentence is concerned, sentence is a matter of discretion and there is always room for difference of opinion. Such applications need not, therefore, be treated as rigidly as applications for leave to appeal against conviction.

Cause of death is brain damage and skull fracture. The doctor who carried out the post mortem observed;

(i) Bruised skull and multiple sutured long incision sites on both sides of the head externally.

Internally, he observed;

(i) 4x3cm hole on the left parietal area;

(ii) 2x3cm hole on the right parietal area;

(iii) 8cm right patrie-temporal linear fracture and huge left parietal brain haematoma; and

(iv (Extensive parenchymal damage (pulped brain).

The doctor opined that severe force was used. This is a brutal assault with a lethal object, by three young brothers on their elderly brother. This is a bad murder where life was unnecessarily lost.

A sentence of 16 years cannot be said to be severe; compare S v Sherman SC117-84 and S v Chiringa 2002 (2) ZLR 537 (S).

The application for leave, so far as sentence, is devoid of merit and must therefore be refused.

As accordingly, I order as follows:-

“ALL THREE APPLICANTS:

(1) Leave to appeal against conviction be and is hereby granted.

(2) Leave to appeal against sentence be and is hereby refused.”

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.

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.

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 sentence in this appeal. During the trial, he pleaded not guilty to the charge. His defence being that he had been hired to simply drive the cattle to the place of sale. There he did not take part in the sale of the beasts but received payment for services. After a trial, in which two State witnesses were called, the appellant was convicted of the charge and sentenced.

The first witness was Watson Dube, the Kraal Head at Mazondo Tshipise Area. He said that he knew the appellant by sight. Towards the end of January 2008 the appellant arrived at his homestead in the company of one Sheperd. They arrived around sunset. They had nineteen (19) beasts. They asked for a place to put up for the night. He asked them about the beasts before he offered them a place to sleep. The appellant told him that the beasts belong to him. The beasts did not have brand marks. The cattle were penned in his cattle pen. He gave them somewhere to sleep. The following day they left at 8am. He asked them where they were heading to. Once more it was the appellant who responded and said they were going to look for a buyer at Tomani's homestead. He followed them to Tomani's homestead out of curiosity and also he haboured suspicion that the beasts belonged to the appellant as he had claimed. Further, the appellant and Sheperd had promised to give him ZAR100= at Tomani's homestead. Tomani was present, together with his wife, when he arrived. He told Tomani that the appellant and Sheperd were looking for a buyer for their cattle. Tomani informed them that there was a man from Mozambique who was interested. The cattle were penned in Tomani's cattle pen pending the arrival of the buyer. The man from Mozambique arrived. Tomani, the appellant and Shepherd entered the cattle pen. The Mozambican man bought fifteen (15) beasts leaving four (4) from the lot the appellant and Sheperd had brought along. The witness did not hear the exact purchase price but he heard the buyer say he had sufficient money for the fifteen (15) beasts and promised to return with more money for the remaining four (4) beasts. He saw the buyer hand over money denominated in South African Rand to the appellant. The appellant was given a lot of ZAR100= as the purchase price for the fifteen (15) beasts. Tomani and Sheperd watched this transaction as well. The witness was adamant that it was the appellant who negotiated the sale of the beasts with the man from Mozambique. The appellant left the four beasts that were not bought at his (witness's) homestead. The appellant later came for them. He said the appellant informed him that he had asked Sheperd to assist him drive the cattle. He said the appellant never told him that he had been hired to drive the beasts on behalf of someone.

This testimony was found to be credible by the trial court. Such finding of facts is the province of the trial court and we have no legal basis to upset this finding.

This credible testimony evinces that the appellant claimed ownership of the stolen beasts. He was the prime negotiator in the sale of the beasts. He received the purchase price. He made the necessary arrangements for the temporary custody of the remaining beasts. He later collected the four beasts.  The appellant was shown by the evidence of this witness to have played a prominent role in the transaction involving these stolen cattle. His testimony was corroborated by that of the second witness Tomani Dube. The latter witness was also found to be credible. The appellant, who is a frequent person at cattle sales, drove these cattle without any form of cattle movement documents.  The credible evidence established that the appellant drove these beasts without any form of documentation. He sold these beasts without any documentation. He sold the cattle with no brand marks. The appellant was the recipient of the purchase price. He also collected the four beasts that were not bought. The credible evidence has established all the essential elements of the offence created by section 114(2)(a)(i) of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

His conviction cannot be faulted….,.

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 are so clear so much that even he who runs can read them. The State witnesses corroborated each other in all material respects, namely that-

(1) The first appellant made the relevant announcement at the assembly;

(2) The second appellant followed up this order by visiting each and every classroom looking for defaulters;

(3) Those who subsequently paid levy fees were given chairs; and

(4) It is only those who had not paid levy fees that were made to stand in front of the class from between 0730 hours to 1300 hours.

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.

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 her demeanor and facts of this case. There are many authorities of the Supreme Court and persuasive authorities from other jurisdictions on the proper approach of an appellate court to the consideration of a decision based on fact – Hughes v Graniteside Holdings (Pvt) Ltd SC13-84 and S v Isolano 1985 (1) ZLR 62 (SC)…,.

In the case of S v Isolano 1985 (1) ZLR 62 (SC), the court referred with approval the following remarks by LORD MACMILLAN in Watt (or Thomas) v Thomas [1947] 1 ALL ER 582 (HL)…, –

“The appellate court had before it only the printed record of evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanor of the witnesses, their condour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion, but it is not available to the appellant court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who enjoyed advantages not available to the appellant court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of court of appeal on question of fact. The judgment of the trial judge on the facts may be demonstrated on the pointed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.”

In casu, the trial magistrate believed the complainant and Martin Sibanda. The magistrate made an adverse finding on the credibility of the appellant.

I have carefully considered the issues raised by counsel for the appellant. I do not find any misdirection in the trial magistrate's finding of credibility. I am persuaded that the trial magistrate was correct in rejecting the defence evidence and in accepting the prosecution evidence. There is no doubt in my mind that on the evidence before her the trial magistrate arrived at the right decision as far as conviction is concerned. 

Counsel for the appellant failed to make any meaningful submissions on the question of sentence. This is understandably so because the sentence erred on the side of leniency. The appeal against sentence is equally devoid of any merit.

In this case, the issue taken on appeal is primarily one of fact. 

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 said that she first made a report of rape to her sister Lilian, Lilian, in her evidence, said that she did not receive a report from the complainant and only learnt of the rape from their mother.

Regarding the first, second and third grounds of appeal, this is what the learned magistrate stated in her judgment when dealing with the complainant's evidence that she had made the first report to her sister Lilian :

“Yes, the defence counsel, in its (sic) closing address said complainant said she had first told her sister about what accused did to her but the sister testified that she had only seen her pant (sic) blood stained and called her mother and that it was the mother who told her about the alleged rape after discussion with complainant about her blood stained pant. (sic) Now, such a somewhat inconsistency, does not go to the root of this case and it does not at all dent the State case, as totality of the evidence clearly support the State Case.” ….,.

It thus appears that the trial magistrate viewed the inconsistency as one of a minor nature and one which did not discredit the complainant's evidence regarding the rape itself. In Michael Gwanzura v The State SC66-91 KORSAH JA stated….,-

“Whether or not the complainant is a credible witness is not to be judged by taking her evidence in isolation but by evaluating the evidence as a whole to determine whether her testimony can reasonably possibly be true.”

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 the five counts of rape.

The appellant does not deny removing the complainant from her home and beating her up several times on the way to the extent that he suggested that he could not have had sexual intercourse with her as a result of the pain he had inflicted on her. His suggestion that he did not have sexual intercourse with her during the ordeal is, of course, false and was, in my view, correctly rejected by the trial court.

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 Act [Chapter 7:06].

There is no doubt in my mind that the concession was well made.

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 swiftly moved to embark on action that clearly destroyed any evidence of the alleged rape. In all the probabilities of this case, the appellant ought not to have been convicted and for these reasons the conviction against the appellant cannot stand. It is accordingly set aside and substituted by a verdict of not guilty.

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. This point was made clear in S v Godfrey Nzira SC23-06 where CHEDA JA stated:-

“I must point out here that an appeal court is very unlikely to go against factual findings of the trial court which had the opportunity to listen and actually see the witnesses and observe demeanour when giving evidence unless it is shown that there is a clear misdirection on the part of the trial court.”

In casu, no misdirection of any sort has been shown and as such the courts factual finding cannot be faulted.

During the trial, it was found that this appellant participated in the assaults.

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 somehow became aware of the arrest. He is alleged to have approached Lovemore Sibanda, a registered miner. He requested the latter to include Makadzange Mazarire's name in his mining register so as to facilitate his release from police custody. As alluded to above, the applicant was convicted by a single officer and his appeal to the Commissioner General was unsuccessful. In this application, he seeks review of the decision of the Commissioner General of Police. He is challenging the Commissioner General's confirmation of the single officer's judgment. The gravamen of his application is that he was convicted on the testimony of a single witness. Factually, this is incorrect because the State called two witnesses i.e. Lovemore Sibanda and Detective Assistant Inspector Ndabezinhle Mdlongwa of CID Minerals. It is clear that the applicant does not seem to appreciate the legal concept of “single witness.” Be that as it may, the single officer made a finding of fact that these two witnesses were credible.

It is trite law that assessment of the credibility of a witness is the province of the trial court i.e. the single officer in casu.

On appeal, the Commissioner General could only have interfered with the findings of the trial officer in this regard if he was satisfied that such a finding of facts defies reason and common sense. There has to be something grossly irregular in the proceedings to warrant such interference. The appellate court must never overlook that the trial officer's living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective. Questions of credibility are par excellence the province of the trial court – Mbanda v S SC184-90….,.; S v Mlambo 1994 (2) ZLR 410 (S)….,.; Shoko v S SC118-92; Zulu v S HB52-03 and Marx v S [2005] 4 ALL SA 267 (SCA).

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 adduced in court on the possibility that there could have been another perpetrator as the complainant was not of fixed abode which exposed her to different men and different environments.

3. The court a quo misdirected itself because it failed to acknowledge the inconsistencies that were presented in the complainant's testimony.

4. The court a quo erred and misdirected itself when it failed to consider that more than four years have passed since the alleged incident occurred which meant that evidence was destroyed and which seriously raised doubts in the State's case.

5. The court a quo misdirected itself by failing to appreciate that a sentence of 12 years was harsh in light of the age and personal background of the appellant.”

The argument by the appellant is quite persuasive if regard is had to the submissions by the respondent's counsel. Counsel for the respondent made the following submissions in his heads of argument -

“…,.

5. (c ) Shorai Sandu at one stage witnessed complainant limping, examined her and took her to Makumbe Hospital where she was further advised to take complainant to Harare hospital which she did not do.

(d) Complainant was examined by Doctor Gwiza who diagnosed that complainant had a urethral prolapsed and nothing else of significance. He said such a condition can occur on its own or because of sexual abuse and it wasn't conclusive whether it could be linked to sexual abuse.

(e) Doctor Gwiza commented that a prolapse which occurred in 2008 could not be present in 2011 because it can resolve on its own; evidence of sexual abuse could have disappeared due to lapse of time. Complainant had no infection.

(f) Medical evidence of abuse is inconclusive, but possible, hence possibility of legal penetration was relied upon in the judgment of the court a quo. See Khupe and Another HB30-83.

(g) The court ruled that complainant had no permanent fixed abode at the time of the commission of the offence.

(h) There is no tangible reasonable excuse why this matter was not reported in 2008 when the complainant was found to be limping.

(i) It is not abundantly clear as to what led to the offence being reported three (3) years later.”

What can be gleaned from the respondent's submissions and the evidence is that there was a serious delay in the reporting of the matter. It is not clear how the matter was finally reported. There was also this aspect of inconsistencies in the years when the offence actually took place. Not only that, there was no conclusive evidence that the injury observed by the doctor was as a result of rape. The mother of the complainant said she observed some infection but this was disputed by the doctor.

There was no evidence of penetration.

The court sought to justify its findings by relying on the case of State v Nyirenda 2003 (2) ZLR 64 and S v Mpetha and Others 1983 (4) SA 262. It is true that issues to do with the credibility of witnesses are generally the domain of the court a quo, but this should not be taken too far.

In casu, there was real doubt whether the rape was committed. If it was committed, there was no sufficient evidence to link the appellant, given the finding by the court that the complainant had no fixed abode at the time of the commission of the offence. Somebody else could have abused the complainant.

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 total strangers having met only for a few hours. The police clearance that was used to ferry the beasts in question was in the name of the complainant; meaning that the complainant accepted to assist the appellant to sell his beast. Money meant for the complainant was collected from CC sales by the appellant. This was confirmed by the CC sales records and the cashier. From the evidence, the appellant collected the money after putting pressure on the buyers. The appellant therefore did not have prior authority to collect money on behalf of the complainant alone. When the appellant phoned the complainant, and when the complainant indicated that he was on his way to CC sales, it would have been prudent for the appellant to wait at CC sales and hand over the money there than to take the money to Bata. It therefore boggles the mind why and how a total stranger could fabricate the charges against the appellant. The appellant is admitting all that is proven by records and denies what is not written down. But there is no proof that he indeed gave the complainant his money.

The trial court properly found that the complainant was a credible witness….,.

In Mpetha and Others 1983 (4) SA 262 it was held that “credibility of witness remains in the domain of the trial court, to judge whether is worthy believing or not, mainly basing on his demeanor in the witness box how he testifies, responses to questions whether generally his story is coherent and worth believing.”

In casu, there is no misdirection committed by the court a quo which is so gross so as to vitiate its own findings. The conviction is therefore proper. The sentence too cannot be disturbed as it is in accordance with real and substantial justice.

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 has maintained that any action he took, including the release of Khulekani Ncube and the Nissan Hardbody motor vehicle, was lawful.

The court a quo made a lot of findings on the events which unfolded at Mahatshula on 31 July 2002, and the release, the following day, of the motor vehicle. These findings were made on the credibility of witnesses. Having considered the evidence of State witnesses, including Detective Assistant Inspector Masuna, the court a quo accepted it as credible and rejected that of the appellant and his co-accused. The witnesses testified that the appellant had been present at the house in Mahatshula when Rowen Dube greeted Khulekani Ncube affectionately and told the other officers that he was one of those wanted in connection with the airport robbery in South Africa. The court believed them and disbelieved the appellant.

At page 18 of its judgment, the court a quo reasoned:

“For these reasons, the court will not attach any due (sic) weight to the first accused's (appellant) contention that Masuna had a reason or cause or motive to falsely implicate him. This would mean Masuna told the court the truth that he found accused person with Khulekani Ncube the following day of the 31^st of July 2002 when he ordered him to release the vehicle. The first accused's attempt to deny being seen with Khulekani Ncube on this day by Detective Assistant Inspector Masuna, besides affecting his credibility, is also inconsistent with his contention throughout the proceedings that he was not aware that Davida Ncube was one and the same person with (sic) Khulekani Ncube at any stage until his arrest.”

Regarding the minutes of the meetings held between the Zimbabwe Republic Police and the South African Police service, which contained the name of Khulekani Ncube as one of the suspects being sought after, the court a quo said;

“With the exception of minutes of the 8^th of January 2002, that is exhibit 1 and 2, the rest of minutes clearly show that Constable Mharadze, who is now a Sergeant, at the time of trial, recorded all of them, that is from exhibit 3 to 5, the court will accept it as a fact that he recorded this (sic) minutes and will treat evidence to the contrary by the first accused as an afterthought.”

It has not been shown that there was any misdirection on the part of the court a quo in believing the evidence presented on behalf of the State. The trial court is in a better position than an appeal court to make a finding on the credibility of witnesses as it has the opportunity to observe the demeanour of witnesses and to assess the nature of their delivery of evidence. Where a trial court has made a finding that a witness was credible, the appeal court should not, and cannot, interfere with that finding unless it is shown that there was a misdirection on the part of the trial court.

In the present case, the trial magistrate went to great lengths in assessing the evidence of both the State witnesses and the appellant. He concluded that the State witnesses had no reason to falsify evidence against the appellant and that one of them, Detective Inspector Doro, had unsuccessfully tried to protect the appellant. The court accepted the evidence of the State witnesses that the appellant knew that Khulekani Ncube was a wanted person but went on to release him from custody.

The appellant did not impress the trial court as a witness. At page 24 of the judgment, the trial court concluded;

“The first accused's prevarication throughout the proceedings, starting from his denial of being found with Khulekani Ncube by Detective Assistant Inspector Masuna in his office, combined with all the other discrepancies I have highlighted, is not consistent with his assertion that he never came to know that Davida Ncube was also known as Khulekani Ncube.”

The appellant was therefore disbelieved.

This meant that when he ordered the release of Khulekani Ncube at the Mahatshula house he knew he was wanted in connection with the robbery in South Africa. When he gave him back the Nissan Hardbody motor vehicle which had been impounded, the appellant knew that he was obligated to investigate whether it had not been purchased from the proceeds of the crime - especially as the police were investigating the lavish expenditure of the suspects at the time. In light of all that, the court a quo was entitled to draw the conclusion that the appellant had shown favour to Khulekani Ncube and therefore guilty as charged.

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 papers filed of record, that the respondent does not support the conviction.

In coming to the conclusion of the guilt of the appellant, the learned magistrate sought to rely on the evidence of the complainant, her mother, the appellant's wife and the medical report of the complainant. The learned magistrate reasoned that his findings were consistent with the various pieces of evidence put together.

It will be noted that contrary to the findings of the court a quo, the complainant's evidence had several inconsistencies. She struggled to confirm that the appellant penetrated her, and, by implication, caused the bruises on her private parts. In one breadth, she said the bruises on her thighs were not caused by the appellant but by her wearing of tight pants; a position which was flatly denied by her mother who wanted to paint the picture that she always cared for the welfare of the complainant by buying her the correct pant sizes. Of major concern to the court was that the medical report, which was compiled by an expert, did not show any interference with the complainant's vagina as claimed by the complainant's mother. Even more damning was the specific findings by the doctor in the medical report that the complainant was still a virgin at the time of her examination….,. If, indeed, there had been any interference with the complainant's vagina, the medical report would not have failed to pick it up, especially on the column that deals exclusively with the external genitalia examination. The inevitable conclusion which this court arrives at is that if the evidence of the mother is inconsistent with the findings of the medical report, then the former must be rejected.

It occurs to me that the allegations against the appellant started gathering momentum and putting pressure on the complainant when word started spreading around in the neighbourhood that she had slept with some men, as per the mistaken conclusion arrived at by the accused's wife after employing some rudimentary examination of the complainant's private parts. It was that pressure, on the part of the complainant, which, in my view, led to the complainant, after persistent probing, that she had been raped by the appellant.

The other yawning gap in the evidence led in the court a quo stems from the failure by the presiding magistrate to call Mrs Gutsi (the sister-in-charge at Irvines Clinic) to whom the complainant was alleged to have first disclosed that she had been raped by the appellant. It was crucial for this witness to have presented herself in court in order to fully explain the circumstances under which the complainant made a disclosure of rape to her, and her failure to be given a platform to testify adds another dimension to the hopelessness of the State case.

It is imperative, in my view, that where offences of a sexual nature are involved, courts remain cognisant of the fact that these offences generally occur in the heart of privacy and that once raised they become difficult to disprove. Secondly, and as several precedents have noted, there are many reasons why a complainant in a rape case may decide to frame the accused. The reasons are many and varied, and no matter how hard we try, as courts, we will never be able to exhaust such reasons.

If the complainant's evidence could not support a charge of rape, it is equally true that her evidence could not have supported a charge of indecent assault as correctly argued by counsel for the respondent in his written submissions. 

The concession was well made by the respondent.

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 fishing expedition on the part of the appellant. There was, in my view, a proper and simple assessment of the evidence given by the complainant and properly supported by the evidence of her 17 year old sister, Faith Mutenga, on one side, and the evidence given by the appellant on the other. One gets the impression that this was a well-calculated offence by a cunning appellant who took advantage of an unsuspecting complainant. It is not possible to accept the argument, as put forward by the appellant, that the conviction was unsustainable….,.

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 shares in the land acquired were sold, as held by the court a quo. The agreement on the sale of shares was a stand-alone transaction as the general rule is that shares are freely transferable in the manner provided for by the Companies Act [Chapter 24:03] and Articles of Association. The sale of shares agreement expressly state that the land was formerly owned by EC Meikle (Pvt) Ltd.

The court a quo therefore erred in equating the sale of shares to the sale of land.

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 matter before this Court, counsel for the respondent conceded that since the cross appeal was not directed at the substantive order, the cross-appeal was not properly before the court and should be struck off.

This concession was made in the light of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). Although the cross appeal is no longer the subject of this appeal, it has, in my view, raised a fundamental question on whether the decision in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is entirely correct….,.

I feel obliged, as already indicated, to express my personal view on the correctness or otherwise of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). I confess that I do so without the benefit of argument from both counsel.

Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is authority for the proposition that in order to be valid, a notice of appeal must be directed to the whole, or part, of the order made by the court a quo and not to its reasons for making the order in question. GUBBAY JA…, remarked…, -

“…, what this Court is being asked to do is not to reverse the order of the learned judge but to cure the procedural defects by either considering the merits of the application itself or remitting the matter for the learned judge to do so. Once that is done, the appellant will be content whatever the outcome should happen to be. That this is the approach is evident from the wording of the so-called prayer to the notice of appeal, which omits to seek an order that the application brought in terms of Rule 18 be dismissed.”

I am prepared to accept that, as a general rule, the above remarks correctly reflect the law of this country. To the extent, however, that the judgment suggests that this is a hard and fast rule I am inclined to differ. There may well be cases, such as the present, where the slavish adherence to the above principle would not only cause prejudice but would result in a certain degree of absurdity. I revert to the facts of this case to justify why I am of this opinion.

In the court a quo, the respondent approached the court seeking the eviction of the appellant as well as holding over damages. It had several causes of action. The main was that it required the premises for its own use. In the alternative, it alleged several breaches of the lease agreement. These were that the appellant had, without authority, sublet a portion of the leased premises; that the appellant had constructed a permanent structure without authority; that the appellant had failed to maintain the premises in a state of repair; and, lastly, that the appellant had failed to pay the rental due. It will be apparent from the above that each breach alleged by the respondent constituted a separate cause of action which, if proved, would have justified either singly or cumulatively, the eviction sought in the prayer.

The court a quo rejected the respondent's claim that it required the premises for its own use. It also rejected all but one of the respondent's claims that the appellant had breached the agreement. Having accepted that the appellant had failed to pay the rent due the court then ordered the eviction of the appellant as well as holding over damages. However, the appellant appealed to this Court against that order. It was at this stage that the respondent had to make a difficult decision.

If the appeal filed by the respondent were to succeed, then the order of eviction and holding over damages would fall away. Since the issue before the Supreme Court would be only whether the court a quo was correct in holding that the appellant had failed to pay the rent due, there would be no basis for the respondent to attack the other findings by the court a quo, which findings could also justify the order of eviction and payment of holding over of damages, unless the respondent also cross appealed against those findings. 

This is what the respondent…, did. 

However, faced with the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S), the respondent was forced to concede that the cross-appeal did not comply with the law as it did not seek any relief on the substantive order made. My understanding of the respondent's position was that in the event the main appeal succeeded, this Court should revisit the finding made by the court a quo in dismissing the other causes of action and in the event that any one of them succeeded then the eviction and holding over damages would stand.

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 complainant to have entered the appellant's premises unnoticed.

The appellant's evidence in this regard was corroborated by that of his night guard. Again, it is not probable that the fifty-four (54) year old appellant would have used a firearm to coerce the eleven (11) year old complainant or that he would have given her a sizeable sum of money in full view of his employees. The complainant then went shopping and did not report the matter to anyone until the complaint was coaxed out of her at Dangamvura Police Station. Her failure to report the alleged rape was clearly unusual in the circumstances of the case.

Bearing in mind the complainant's tender age and dislocation from her home and family, it seems to me that her initial reticence was obviously induced by a mixture of fear, confusion and extreme anxiety. The very fact that the complaint had to be coaxed out of her demonstrates the distress that she would have experienced in her predicament. Accordingly, having regard to all the events preceding the complaint lodged at Dangamvura Police Station, I do not think that it was particularly unusual for the complainant not to have reported the rape at the earliest opportunity.

The appellant's version of events was that he did not commit any offence and that the police colluded with the complainant to extort money out of him. However, the evidence shows that the allegation of rape first emerged at Dangamvura Police Station, where the complainant was taken by Mrs Jongwe, and after she was interrogated by the police. The complaint was then referred to Southerton Police Station. The attempted extortion only occurred much later, through a police officer based at Southerton, and the culprit was duly apprehended and dealt with. What all of this shows is that the alleged rape could not have been fabricated when it was initially reported at Dangamvura simply in order to extort money from the appellant. The appellant's contention in this regard is clearly untenable.

With respect to the evidence corroborating the appellant's version of events, his Defence Outline identifies several witnesses, members of his staff, none of whom saw the complainant entering or leaving his premises. In particular, the Outline refers to Itayi Tom, being the night guard on duty, and Remember Chimpanyanga, one of the bus cleaners. However, Itayi Tom was not called as a witness at the trial. Instead, Remember Chimpanyanga was called to testify and his evidence only relates to the events of the morning of 2 September 2010 as distinct from what occurred on the night of the alleged rape, i.e. 1 September 2010. In effect, his evidence does not serve in any way to support the appellant's denial of having been present at the premises on the night in question.

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 the evidence that approximately four days before this operation, elephant had been killed in a national park and it was believed that it was Tanaka Nyoni and his accomplices who were involved in the killing. The appellant and the other rangers were also aware that Tanaka Nyoni was in possession of a firearm. It was for that reason that a decision was taken to proceed to Tanaka Nyoni's homestead in the dead of night in order to arrest him and possibly secure the firearm and the ivory. The evidence of Africa Dakura is clear that when the rangers came, not only were they demanding to know whether Tanaka Nyoni was present at the homestead, but also the whereabouts of the firearm and ivory. It is apparent from all this that the rangers believed they were going after suspects who were armed. It was for that reason that a total of ten rangers, nine of whom were armed with rifles, were involved in this operation.

It was common cause that two persons ran out of the house in which Tanaka Nyoni was believed to be sleeping. When the deceased ran out and was shot, the only persons outside the house were the appellant and other game rangers. Lesbern Nkosana, whose evidence was believed by the court, was still inside the house. He did not witness the shooting although it appears he went outside immediately after the sound of gunfire to ascertain what was taking place. The evidence also established that although there was moonlight, visibility was poor outside the house. It was never clearly established how, given such poor visibility, and the commotion that ensued, he would have concluded that he had not been in possession of an axe just before the shooting.

Given the overall circumstances of this case, it seems to me that there may be substance in the submission by the appellant that the court a quo misdirected itself in believing the evidence of Lesbern Nkosana without properly analysing it and considering the probabilities. 

I would agree that in all the circumstances, the evidence of Lesbern Nkosana was not only suspect but also did not accord with the probabilities.

The appellant is a Senior Ranger in the Parks and Wildlife Department and had been employed as a ranger for thirty five (35) years. If, indeed, the deceased was not armed, why would the appellant have fired at him in the manner he did? It is common cause two of his younger brothers ran out of the house, but were not shot. The appellant would have been a few metres from the door when the two ran out and disappeared into the darkness. Had it been a case of the appellant being trigger happy, he would, in all probability, have fired at the two young men as well. He did not do so. The probabilities are such that the deceased must have conducted himself in a manner that made the appellant believe that he was in danger. In my view, there can be no other explanation for the events that unfolded. Indeed, Archbat Zhou told the court a quo that he saw an axe lying close to the deceased's feet. 

Whilst accepting that Archbat Zhou is the appellant's workmate, that the appellant was his senior at the workplace, and that he may have reason to lie and protect the appellant, his version was not shown to be untrue.

In coming to the conclusion that the deceased was not armed with an axe and that the appellant was never under any threat, the court a quo, in my view, misdirected itself.

There was no credible evidence to the contrary and the probabilities indicated the possibility that the deceased must have conducted himself in a manner that must have convinced the appellant that his own life was in danger. On the evidence led before it, the court could not have been satisfied, beyond a reasonable doubt, that the claim by the appellant was entirely false and stood to be rejected out of hand. At the very least, the court should have concluded that there was some doubt as to what happened exactly, and, in keeping with the principle applicable in these circumstances, resolved the doubt in favour of the appellant. In this regard, I agree wholeheartedly with remarks of SANDURA JA…, in Edward Chindunga v The State SC21-02 that:-

“…,. In my view, the appellant gave a reasonable explanation of what he did during the night in question. That explanation cannot be rejected out of hand.

As I said in S v Kuiper 2000 (1) ZLR 113 (S) at 118B-D:-

“The test to be applied before the court rejects the explanation given by an accused person was set out by GREENBERG J in R v Difford 1937 AD 370. At 373, the learned judge said:-

'…, no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal…,.'

Similarly, in R v M 1946 AD 1023, DAVIS AJA said the following at 1027:

'And, I repeat, the court does not have to believe the defence story; still less has it to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true…,.'”

In this regard, attention is also drawn to S v Manyika 2002 (2) ZLR 103 (H), 105 A-G; Isaac Mubaiwa v The State SC33-98….,.

I am satisfied that the court a quo misdirected itself in completely rejecting the claim by the appellant that the deceased came out holding an axe and that although he warned the deceased to drop the weapon, the deceased continued running towards him, as a result of which he then fired at him. 

The appellant appeared before the Regional Magistrates' Court at Bulawayo on the 4^th 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 Two was acquitted, while the appellant was found guilty….,.

The appellant was not satisfied with both conviction and sentence and filed a lengthy notice of appeal in support of her appeal. The appellant contends that the State failed to prove its case beyond reasonable doubt regard being had to the fact that the credibility of the complainant's story was put into doubt by the evidence of Patrick Tshuma which appeared to contradict the complainant's version in material respects.

The background to this matter is that the appellant was a 59 year old housewife at the time of the alleged offence. The complainant was aged 6 years old and resided at Mafanisa Line, Ntabazinduna at the relevant time. The appellant was a neighbour to the complainant. The complainant was residing with her aunt, Sibongile Moyo. On or around the 9^th February 2013, at around 1800 hours, the complainant was in a bushy area looking for goats. It was alleged by the State that the appellant approached the complainant, closed her mouth with her hand, tied her hands and legs with a piece of cloth and then forcibly took her to her homestead against her consent. The complainant, who testified in court, informed the court that she was taken from a place near an anthill by the appellant who tied her up and took her to a grassy area at Patrick Tshuma's homestead. The complainant went further to indicate that she was released from Patrick Tshuma's homestead the following day. 

The State led evidence from Sibongile Moyo who testified that the complainant was her brother's child. She averred that the complainant went missing on the 9^th February 2013. Her crucial evidence is captured in the transcript of proceedings…, as follows:

“The child left to look for goats. She then disappeared. The goats came on their own. I went and called but no one answered. I then went to my neighbour whom I trusted at Nyathi's homestead and told her that I was not seeing the child. She advised me to go back home but the child was still not there…,.”

On how the complainant was found, the evidence of the witness is contained at page 27 of the transcript of the proceedings in the following terms:

“I then met Patrick Tshuma, Accused Two, who asked me about the disappearance of the child. I told him that no one wants a child to disappear. I then started crying. He then got hold of my hand and he accompanied me. I told them to free her because it was difficult for me to sleep without seeing the child. I did not mention anyone's names.

Patrick Tshuma took me to Ntombizodwa Tshuma, who is Accused One, then started to insult me why I was crying with a loud voice. I then threatened to assault Accused One and she then said I was assaulting the child. I then told her that the child belongs to me.

She then told me to be quiet and she told me Accused Two had found the child in the toilet. I did not answer Accused One.”

It is common cause that eventually the complainant was brought to the appellant's homestead by Patrick Tshuma - and that happened in the presence of several other villagers. The complainant was handed over to Sibongile Moyo.

The difficulty with the State case commences with the introduction of the evidence of Patrick Tshuma in his Defence Outline. He testified as follows:-

“Upon my arrival at Ndlovu's place I found that there were a lot of people. They greeted me and I responded. They then asked me if there were any people who were searching where I was coming from. I told them that I had not seen them where I was coming from.

I was then told that they were not seeing their child who left the previous day to look for some goats. I told them that I had not seen her. I was at Ndlovu's place for 10 minutes and I then told Accused One that I was going back home to weed since the aunt of the child was not there and had gone to the police. I went back to my place of residence and got into the fields where I had left my hoe and began weeding.

I then left around 6:45pm and went via the toilet and I decided to go inside and see how the rains fell since it was raining. I then found complainant in the toilet.

She was not tied, she was okay and I told her that she was being looked for at her place. She did not answer me. I then asked her if I was supposed to take her to her place of residence and she responded that she did not want by lifting her shoulders.

I took her into one of my rooms. She had no clothes. I then told her to sit in that room. I got into one of the rooms and took a blanket and covered her with a blanket. I then advised her that I was going to her place to advise them that I had seen her.”

In his submissions on behalf of the appellant, counsel forcefully argued that there was an unresolved conflict in the evidence of the complainant and that of Patrick Tshuma. 

He averred that the doubt that was created in the State case must be construed in favour of the appellant. 

Counsel for the appellant further pointed out that the trial court failed to enquire how the complainant gained access into Patrick Tshuma's house. The evidence showed that at the time the complainant allegedly went missing, Patrick Tshuma was away at some farm doing menial work and that when other villagers were called to Patrick Tshuma's homestead, when the complainant had been found it is Patrick Tshuma who unlocked the door.

I must point out that it is clear that no evidence was led to suggest or show that the appellant had a spare key to Patrick Tshuma's house or that the appellant had placed the complainant in the toilet at Patrick Tshuma's homestead. A further problematic piece of evidence which was not controverted is that when the complainant was seen by Patrick Tshuma she refused to be taken back to her house. It seems to me that the the trial magistrate erred by failing to place any weight on the evidence that the complainant used to run away from her home because of the abuse she suffered at the hands of Sibongile Moyo. 

In this respect, the fact that the complainant was refusing to go home gives rise to the inference that on this occasion she may probably have run away from home….,.

A further concern is that the learned magistrate appears to have failed to warn himself of the need to apply the cautionary rule when dealing with the evidence of the complainant. 

The complainant was aged 6 years at the material time and at that age she could have easily been prone to exaggeration, fabrication and fanciful thinking. See the case of State v Sibanda 1994 ZLR 394 (S).

In the above matter, the Supreme Court laid down six main issues to look out for when dealing with evidence of minor children, namely:

a) Children's memories are unreliable.

b) Children are egocentric.

c) Children have difficulty distinguishing fact from fiction.

d) Children are highly suggestible.

f) Children make false allegations.

g) Children do not understand the duty to understand the truth.

Counsel for the State argued that it was safe to rely on the evidence of the complainant and that her testimony was credible and worthy of belief.

I am unable to agree that the evidence presented by the State as a whole is adequate to provide proof beyond reasonable doubt. There are gaps in the evidence of the State case which remained unexplained and unresolved. 

It is a trite principle of our law that where reasonable doubts exists, then in that event, the accused must be acquitted. 

The net effect of the evidence placed before the trial court was that there existed reasonable doubt as to whether or not the appellant committed the offence and it behoved the trial court to find the appellant not guilty.

I have observed that a perusal of the record indicates that the offence alleged against the appellant is without a discernible motive and there is no indication from the evidence led why the appellant would have committed the offence. It is an unusual case.

In the event, the appeal against both conviction and sentence succeeds. The appeal is allowed and the conviction and sentence is set aside.

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 which EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT: The South African Law of Evidence, 4^th ed…, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but as a matter of common sense the appellate court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility. The appeal court has rather more latitude in criticizing the reasons which the court a quo has given for its decision. The reasons given for accepting certain evidence may be unsatisfactory, e.g. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, e.g. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact. Where there has been no misdirection of fact by the trial court, the appeal court will only reverse it when it is convinced that it is wrong.”

The second is Hama v National Railways of Zimbabwe 1996 (1)   ZLR 664 (S). At page 670, KORSAH JA remarked:

“The general rule of the law as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

The third is Charuma Blasting and Earth Moving Services (Private) Limited v (1) Isaac Njainjai (2) Timothy John Walter Pres (3) The Registrar of Deeds 2000 (2) ZLR 85. At p 91 D–F, SANDURA JA stated as follows:

“The circumstances in which this Court can interfere with the exercise of a judicial discretion were clearly set out by GUBBAY CJ in Barros & Anor v Chimphonda 1999 (1) ZLR 58) (S).

At p 62F-63A, the learned CHIEF JUSTICE said:

'The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first - one which clearly involved the exercise of a judicial discretion, see Farmers' Co-operative Society (Reg.) v Berry 1912 AD 343 at 350 - may only be interfered with on limited grounds. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing.'”

Whilst…, I do not agree entirely with all the findings made by the court a quo, I am not persuaded that the court a quo was wrong in arriving at the decision that although there may have been an attempt only once to ensure that the Mukonde house was given the opportunity to have an equal number of turns, equality of turns is not part of the VaZumba clan. It must be appreciated that the evidence adduced before the court a quo was not based on written testimony but rather oral history and tradition. Neither oral history nor tradition lend themselves to a proper and accurate record of a clan's history. There are instances in the history of the clan where it is not clear exactly what transpired.  The court a quo was dealing with a case where not all the facts were readily available or ascertainable. 

In my view, the court a quo did the best it could in these circumstances and there can be no basis upon which its ultimate conclusion can be impugned.

In the result, the appeal must fail.

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 material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

The suggestion that the first appellant did not phone the prophet, Sibanda, on the night in question is not borne out by the evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In our view, this concession was properly made.

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

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

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

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 messages in the fliers were treasonous or not was for the trial court to decide.

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 co-accused, one Absolom Hlupo, a prison officer based at Khami Maximum Prison, connived to generate a fraudulent warrant of liberation to secure the release of a convicted prisoner.

The applicant and his co-accused appeared before a magistrate sitting at Tredgold Magistrates' Court and applied for bail pending trial.

The application for bail was refused on the following grounds:

(a) The applicant is facing serious charges.

(b) The applicant faces charges which brings his profession (the legal profession) and the justice delivery system into disrepute.

(c) The offences involve numerous individuals working as a syndicate to issue warrants of liberation.

(d) If convicted, the applicant faces a term of imprisonment and this will be an inducement to abscond.

The applicant has appealed against the refusal to grant bail on the grounds that the court a quo erred by finding that the applicant was a flight risk in that there was no indication that the applicant had any inclination to abscond.

Further, the applicant avers that the court grossly misdirected itself by making findings which were not supported by evidence placed before the court.

In addition, the applicant argues that the court failed to consider that whatever the States' fears were in regard to the applicant's ability to stand trial, such could be safeguarded by the imposition of appropriate bail conditions.

The applicant contends that the seriousness of the offence, in itself, is not a sufficient ground to deny bail.

I will deal with each of the grounds for refusal of bail in turn:-...,.

The court misdirected itself by making findings not supported by evidence

The argument has been made, on behalf of the applicant, that the applicant is presumed innocent until he is proven guilty in a court of law of competent jurisdiction.

It has been argued that there is no evidence before the court to show that the applicant may abscond if granted bail pending trial.

While it is trite that the liberty of an individual must not be lightly interfered with: it is also important to safeguard the interests of justice by ensuring that suspects stand trial.

What is most disconcerting about the allegations in this matter is that the applicant, who is a legal practitioner, sought to subvert justice by securing the release of a convicted and a serving prisoner.

If the allegations are proved, the applicant will most likely face a prison sentence.

The inducement to abscond lies in the fact that, apart from the applicant's bare denial of the allegations, the applicant has not proffered any meaningful defence to the allegations.

At the hearing of this matter, I quizzed counsel for the applicant, and he seemed to suggest that the allegations are a mere fabrication.

While an application for bail is not a trial on the merits of the case itself, an applicant must, and should, take the court into its confidence by at least raising some plausible defence to the charge.

I therefore do not agree that there was a misdirection on the part of the magistrate in the court a quo....,.

The court exercised its judicial discretion, and, in the absence of a misdirection, the court must not interfere with the court's findings.

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 at Bulawayo on a charge of stock theft in contravention of section 114 of the Criminal Law Code [Chapter 9:23]. It was alleged that, on a date unknown to the prosecutor but during the period extending from 2011 to October 2013, himself and one Victor Nyoni had stolen a bull belonging to Thandokazulu Ngwenya at some grazing area in Fort Rixon.  The facts were that he had driven the bull to a neighbouring homestead belonging to Adage Gumbo where he kept the bull for sometime before selling it to Adage Gumbo who later branded it with his own brandmark.

After hearing evidence from two State witnesses, Thandokazulu Ngwenya and Tafadzwa Richard Marufu, three defence witnesses for the appellant and two for Victor Nyoni, the co-accused, the court a quo convicted both of them and sentenced each to the mandatory nine (9) years imprisonment having found no special circumstances as would inform the preference of a sentence other than the mandatory one.

The appellant was aggrieved by both the conviction and sentence. He then lodged an appeal to this court against both conviction and sentence. The grounds of appeal against conviction are set out in the Notice of Appeal as:

“AD CONVICTION

1. The court a quo erred and misdirected itself in law in finding that the State had proved its case beyond reasonable doubt when in fact it had not.

2. Having made a factual and judicious finding that the appellant purchased the bovine bull in issue from his co-accused, the court a quo erred and misdirected itself at law in inferring common purpose amongst the two notwithstanding their irreconcilable and incompatible versions of what transpired.

3. Moreso, having made a factual and judicious finding that the second accused knew the identity of all the complainant's beasts and his earmark, the bovine bull in question included, and also having concluded that the second accused's lies and prevarications on material respects supported the appellant's version, the court a quo erred and misdirected itself further in finding the existence of common purpose, moreso also considering that the evidence available did not support the second accused's defence that he had given the appellant the bull in issue because the appellant claimed the bull was his.

4. The court a quo erred and misdirected itself at law in overly emphasizing the issue of police clearance as if it were legally a pre-requisite for the sale or purchase of stock.

5. The court a quo erred and misdirected itself in disregarding off-hand the evidence of the second State witness and the appellant's defence witness merely on account of their relationship to him without making any credibility findings.

6. The court a quo erred and misdirected itself in basing its judgment on speculation and conjecture by placing reliance on extraneous and unproved facts to establish dolus eventualis.”

In her heads of argument, counsel for the appellant submitted that the appellant's co-accused was shown to have lied when he said that he had released the bull to the appellant because the latter had claimed it as his after it had strayed to his herd. Those lies therefore corroborated the evidence of the appellant that he had in fact bought the bull from his co-accused. In making the point that lies told by an accused person in court may provide corroboration, counsel for the appellant relied on the authority of S v Mhlanga 1987 (1) ZLR 70 (S)…, where DUMBUTSHENA CJ said;

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate.  Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realization of guilt and a fear of the truth. The jury should, in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behavior from their family. Fourthly, the statement must be clearly shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that it so say by admission or by evidence from an independent witness.”

It was further submitted, on behalf of the appellant, that he had given a reasonable defence that he had purchased the bull from his co-accused for $300=; he had kept it for more than 1 and a half years in the open; and had not bothered to seek a police clearance for it because he trusted his neighbour who sold it to him. The court could not reject the appellant's version because he had no onus to convince the court of the truth of any explanation that he gives: R v Difford 1937 AD 370…,.. It is sufficient that there is a reasonable possibility that the explanation may be substantially true: R v M 1946 AD 1023…,.; S v Kuiper 2000 (1) ZLR 113 (S)….,.

Counsel for the respondent submitted that the appellant had offered what she termed a “cut throat” defence which the court a quo was able to sift through and correctly found that he and his co-accused had acted in common purpose, and, as such, the conviction should not be interfered with. 

I do not agree.

Navigating the way towards conviction, the magistrate made quite startling observations. At pages 13–14 of the record she stated:

“The parties (were) neighbours, the inference that can be safely drawn is, they knew each other's earmarks and brandmarks. They lived so close that Accused Two had room, as had been tradition, to advise the complainant that a bull was in his kraal yet he did not. He turned out to be a grossly unreliable witness, did not stand his ground. It then came out in evidence that Accused Two had a prior meeting with Accused One during which meeting the bull was discussed and the arrangement of collection made.  It therefore crashes accused's defence and places him right where his co-accused placed him; that he sold him the bull. And clearly he had no right to sell the bull. Accused One took control of the bull from Accused Two; he assumed control, His argument is that he thought he was buying the bull from the owner. This defence he maintained till the very end. He called a witness to confirm his story, though the court exercised caution with the evidence of this witness due to the relations between them. To this extent, the court believed that he could have bought the bull. 

The question is, does this sell (sic) connect Accused One with Accused Two's intent to deprive the owner permanently of his bull? Did the accused have the requisite state of mind? 

Having evaluated the evidence before the court, it is now vital to address the issues of law aligned to the proven or established facts. The questions before the court are whether or not Accused One and Accused Two acted in common purpose to deprive the complainant of his property. This involves the question whether either or both accused had the requisite mens rea to commit the offence charged. For the doctrine of common purpose to apply it should be established that Accused One participated with Accused Two's crime (or vice versa) with the necessary mental state that is that either of the accused persons participated or foresaw that the other was committing the crime in question. Where the accused have not actually agreed in advance that the crime in question will be committed but foresees the real possibility that the crime will be committed, the accused would be guilty of the crime committed by the other on the basis of legal intention i.e. dolus eventualis. Dolus eventualis is whereby accused foresees the possibility of a result but however he reconciles himself with that possibility i.e. accused consciously accepts the risk.”…,.

It is not easy to follow the magistrate's line of reasoning or what it is that she was saying. Legal expressions are thrown all over the place on facts to which they scarcely apply thereby betraying a very muddled thought process. In all the maze of confusion, the magistrate only succeeded in confusing herself and in the process misdirected herself sharply. 

Whatever it is that she was saying what is clear is that she found Victor Nyoni to have lied and the appellant to have told the truth and she believed him. She then proceeded to make a finding, which she could not at the same time run away from; that Victor Nyoni sold the bull to the appellant.

Having arrived at the conclusion that the appellant bought the bull, she could not at the same time conclude that the appellant and Victor Nyoni acted in common purpose in stealing the bull from the complainant for which the appellant could also be found guilty of stocktheft. The doctrine of common purpose is a simple one and it is now wholly codified in Chapter XIII of the Criminal Law Code [Chapter 9:23] dealing with participation or assistance in the commission of crimes. Basically, liability arises out of two or more persons knowingly associating with each other with the intention that each or any of them shall commit a crime.

In my view, it is not possible for one to purchase an item which then turns out to have been stolen while at the same time knowingly associating with the seller with the intention of stealing. It just does not make sense.

At page 17 of the record, the magistrate made the pronouncement:

“No direct evidence establishes that Accused One and Accused Two acted in common purpose. This conclusion can only be inferred from the circumstances discussed above. The evidence connecting the two is purely circumstantial.”

She then went on to misapply the concept of circumstantial evidence.

Again, the rules governing the use of circumstantial evidence are fairly simple. As stated by the learned authors HOFFMAN and ZEFFERT, The South African Law of Evidence, third edition, Butterworths,…,:

“In R v Blom, WATERMEYER JA referred to two cardinal rules of logic which governed the use of circumstantial evidence in a criminal trial:

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

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

See also S v Vhera 2003 (1) ZLR 668 (H)…,; S v Dzira HB49-11; S v Moyo and Another HB162-11.

The court a quo inferred the offence from the proved facts, namely, that the appellant and the complainant were neighbours; that the appellant did not seek police clearance of the beast after purchasing it and that the appellant kept it for a long time before branding it.

In my view, that was not the only inference to be drawn.

In fact, the proved facts point in a completely different direction, that of the appellant's innocence. He paid $300= for the beast before driving it across to his home where he kept it in the open for several months.  He later branded it without attempting to conceal the original earmark. This is not the conduct of a guilty person. In addition, he gave a reasonable explanation for not seeking police clearance even as he bore no onus to prove the truthfulness of the explanation; S v Kuiper 2000 (1) ZLR 113 (S)…,.

In any event, the moment the magistrate made a finding that the appellant bought the bull, she could not, at the same time, find him guilty of stock theft together with the one who sold it to him. Perhaps another crime could have been preferred, but, unfortunately, there is not even a permissible verdict to stock theft in terms of section 275 as read with the Fourth Schedule to the Criminal Law (Codification and Reform) Act [Chapter 9:23]. 

The inquiry should therefore end there.

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 25 February 2013 around midday….,.

He appeals to this court against both his conviction and sentence.

The main ground of appeal against conviction is that the court erred by totally disregarding the principles governing sudden emergency situations when the appellant was forced into a sudden emergency situation by another driver, and, as such, he could not be held negligent in his driving conduct leading to the accident. Other grounds of appeal amount to an attack on the factual findings by the trial court.

The essence of this appeal is whether, in disbelieving the appellant's version of events, the trial court erred.

The learned trial magistrate, in a well-reasoned judgment, assessed the credibility of both the State and defence witnesses in a methodical manner and found that there is no evidence to support the appellant's claim that a runaway commuter omnibus had suddenly crossed his path of travel thereby creating a sudden emergency. She therefore concluded that his claim, that there was such an incident in the first place which led to a chain of events leading to the fatal crash, was false.

It is trite, in our law, that an Appellate Court will not interfere with the findings of fact made by a trial court and which are based on the credibility of witnesses. The reason for this approach is that the trial court is better placed to assess the witnesses from its observation; it enjoying the advantage of seeing and hearing them first-hand. In S v Isolano 1985 (1) ZLR 62 (SC) DUMBUTSHENA CJ expressed himself thus:

“There are many authorities of this court, and persuasive authorities from other jurisdictions, on the proper approach of an Appellate Court to the consideration of a decision based on fact. I find the remarks of LORD MACMILLAN in Watt (or Thomas) v Thomas [1947] 1 All ER 582 (HL) at 590 B-D very appropriate in this case. He said:

'The Appellate Court had before it only the printed record of the evidence. Were that the whole evidence it might be said that the Appellate judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion, but it is not available to the Appellate Court. So far as the case stands, on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed advantages not available to the Appellate Court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.'”

See also Hughes v Graniteside Holdings (Pvt) Ltd SC13-84…, (unreported)…,.; S v Mlambo 1994 (2) ZLR 410 (S).

The trial court interacts with witnesses, both visually and orally, during trial. It gets the real feel of the events from the description of the witnesses and therefore is inexorably better placed to say which witness's evidence is to be preferred over the other for the reasons that the court will give. Even where no such reasons are not included in its reasons for judgment, the fact that the trial court commands the first impression on credibility cannot be lightly overturned. Therefore, when an Appeal Court reads the record of proceedings, it must give due weight to the impressions made by the trial court in respect of credibility.

In the present matter, the driver witnesses, who would have, in all probability, witnessed the alleged run-away commuter omnibus, all testified that they did not see any such vehicle as would have caused the appellant to straddle across into the oncoming motor vehicles' lane. The appellant's version of events was contrasted with the evidence of eye witnesses before the court settled on rejecting it. There was a police detail on traffic duty as well as a newspaper vendor. These two would not have an interest in the outcome of an investigation or the trial as they are independent of the events which led to the allegations against the appellant. Both did not confirm the appellant's claim of the runaway vehicle. The police Investigating Officer produced a diagram drawn upon indications made by the appellant. In it, the appellant indicated to the investigator the point where he claimed he hit into this alleged run-away omnibus. Coincidentally, it is the same point where the two omnibuses involved in the accident collided with the appellant's heavy vehicle. The facts indicate that the two mini-buses were travelling from the appellant's opposite side. They were not being pursued by the police, as the appellant claimed, as the reason for the erratic driving conduct of one of them.

Given the appellant's own version, which is highly improbable, the court a quo cannot be criticised for rejecting it.

The fact of the matter is that the appellant drove negligently in that he suddenly changed lanes, for no apparent reason, when it was not safe to do so since there was on-coming traffic. He failed to stop or act reasonably when an accident was imminent resulting in him colliding into no less than three motor vehicles. His failure to stop when he straddled into the opposite lane constitutes an act of negligence, more so, if regard is had to the fact that he was approaching a robot-controlled intersection. He was expected to stop should the driving conditions require him to. His failure to have done so may also indicate that he was driving at a speed excessive in the circumstances. The result of his negligence is that he collided into three motor vehicles which were lawfully using the road, and on their correct side of the road. Two of these were commuter omnibuses. From one of them seven people unnecessarily lost their lives. There is, on the record, sufficient proof of negligence to justify his conviction.

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.

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.

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 Appellate Court would be loathe to reverse the conclusions arrived at by the trial judge, who had seen and heard the witnesses, unless it is clearly demonstrated that he had fallen into error.”

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 such, the appellant was properly convicted.