KAMOCHA J: After
hearing arguments from the appellant who was a self actor and the respondent's
counsel we allowed the appeal and indicated that our reasons would follow. These are they.
The appellant aged 54 years was
charged with the crime of theft as defined in section 113 (1) (a) (b). The allegations were that on 28 October 2009
she stole a packet of 20 aselin tablets and a half full 30ml bottle of water
injection all valued at $4.50 and was recovered. She pleaded not guilty to the charge.
The appellant was the
sister-in-charge of the clinic at Sino-Zimbabwe Cement Company, Lalapanzi. When the appellant was on her way out she was
searched at the main gate and was found in possession of the 20 tablets and a
half full 30ml bottle of water injection for which she had no gate pass.
She was arrested and arraigned before
the magistrates court in Gweru where she pleaded not guilty and sentenced to
pay a fine of $20 or in default of payment 15 days imprisonment despite her
protestations. Aggrieved by the decision
of the trial court she sought redress from this court by appealing against the
conviction.
In her grounds of appeal she
complained that the trial court had erred in making a decision based on a gate
pass which was not the relevant document in the matter, and disregarded the
fact that there was no written company policy as to how the company required
drugs for home visitations were to be withdrawn.
She asserted that the court a quo had erred in failing to consider
that she had been operating on professional guidelines which stipulated that
documentation of drugs given on home visitations were to be recorded only after
assessment and issuing to patients.
Further, she went on to complain
that the trial court erred in relying on the unreliable evidence of the guards
who searched the car in which she was being driven in a pre-planned arrangement
with management, all of whom knew that she had no gate pass and had not used
one for the 3 years she was there.
Further more the decision of the
court a quo was assailed on the basis
that it had misdirected itself in concluding that she could conceal a drug
worth $2.50 and water for injection worth $2 yet she was in charge of the
clinic with access to all drugs for the community and company and was a
professional of 30 years experience.
She finally asserted that the court a quo erred in finding her guilty when
there was no concrete testimony to support the conviction.
In her defence outline she told the
court that she was the sister-in-charge at the company clinic. She was the only trained nurse working with
nurse aids. There were three shifts at
the clinic thus:- 7am to 3pm; 3am to 11am; 11pm to 7am.
Her duties were consultation and
counseling services. On the day in
question she was going for home visitation and hospital visitations. She had visited some patients the previous
day and was supposed to return to give them some medication. When going for visitations she would take
some painkillers and medication and assess the patient's condition.
On the day in question she requested
for a car which she was given and would be driven by one Ndlovu who, however
later said he was unable to go with her.
She had decided to call off the visit but she got another driver. She then took a packet of the tablets in
question. She got a gate pass for the
car. It was her story that she had never
produced a gate pass for tablets and had never been asked to produce one for
the 3 years she had worked at the company clinic. She did not see the need to get one on that
day.
After she had been given another driver and had obtained a
gate pass for the car she proceeded to the gate where her car was stopped and
was told the car was to be searched. The
driver produced the gate pass for the car.
She said she held the tablets in her hand. A female guard then searched her bag and
found the water injection and asked her about it and her response was that she
did not recall how it got there as she was busy. She could not remember how it got there. But the bottom line was that it was meant for
the patients she was visiting. She got
no satisfactory response when she queried why she was being asked for a gate
pass for the tablets and water injection on that day when she had never been
asked to do so before. Instead the items
were taken away from her. A day or two
later she was informed that she had been fired.
At her trial three witnesses
testified for the state namely Samson Sibanda and Nasian Botoman who were
security officers and the assistant loss control officer Prince Trust
Ndlovu. Both security officers said on
the day in question they had been given specific instructions by the loss
control officer Mr Mpofu to thoroughly search a Mazda 323 motor vehicle in
which the accused was when it got to the gate.
A thorough search of the vehicle had to be conducted since something had
been put in it. The loss control officer
did not tell the witness what it was that was allegedly put in the car.
The vehicle was indeed thoroughly
searched resulting in the packet of 20 tablets and the half full 30ml water
injection bottle being found.
The first witness Samson Sibanda
alleged that the packet of tablets was found in the appellant's shoes but that
was hotly disputed by the appellant who said she had it in her hand.
It is common cause that the
appellant was going to visit patients that was why she was authorized to use a
company vehicle. She uses public
transport to and from work.
It is also common cause that there
is no written company policy relating to how the sister-in-charge of the
company clinic should draw medication to be used for home visitations. There is no clear cut written policy on
whether or not she needed a gate pass for medication to be used on home
visitations because the appellant said she had never been asked for one during
the 3 years she had worked for the company.
She was being asked for a gate pass for medication for the first time on
that day.
The gate pass produced by the
assistant loss control officer was irrelevant and does not shade any light on
whether or not the appellant needed a gate pass to take medication for home
visitation. The gate pass produced as an
exhibit shows the items being taken out as BP machine, stethoscope, and gloves
for use at a hospital. These were not
being taken out for home visitations.
The items cannot be classified as medication.
It is also clear from what appellant
put to the witnesses in cross-examination that the gate pass procedure is not
documented for all employees to see and read for themselves. It is also difficult to understand why the
appellant would steal a packet of 20 tablets and half full bottle of water
injection which she was in charge of.
She was the one to account for all the medicines at the clinic. The appellant should have been given the benefit
of doubt when she maintained when cross-examining witnesses that the items were
meant for the home visitation patients.
The appeal succeeds in the light of the aforesaid.
Further after the state case had
been closed the record of proceedings does not show the defence case. The record is incomplete. One cannot tell how the appellant faired
under cross-examination. The
irregularity is very serious and fatal.
It is highly doubtful if she was afforded an opportunity to present her
defence. The appeal could have been
allowed on that basis alone without considering grounds of appeal raised by the
appellant.
In the result it was ordered that
the appeal be and hereby allowed.
Ndou
J ………………………………………………. I agree
Criminal Division of the Attorney-General's
Office, respondent's legal practitioners
