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

HB171-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs ALLAN COURTNEY RORY MUIL
Ruled By: MAKONESE J

I have taken a close look at the proposed grounds of appeal and it is clear that the applicant does not set out clearly whether there are any points of law being raised, but, rather, there are general grounds criticizing the manner in which the trial court assessed the evidence….,. The applicant should establish that the inference ...

HB246-16 : WASHINGTON MUCHENU vs THE STATE
Ruled By: MAKONESE J and MOYO J

The appellant's appeal is premised on the following grounds of appeal…,.; 1. The court a quo erred in convicting the appellant when he was a hired driver and had no knowledge and could not foresee that he had been hired to transport stolen beef. 2. The court a quo erred in convicting the appellant when he had been exonerated by evidence given by ...

HMA14-18 : GILBERT BALOYI vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

Anesuishe Baloyi was the single witness for the State in Count One….,. In its judgment, the trial court accepted the evidence of Anesuishe Baloyi in its entirety….,. On Count Two, the court found that the appellant assaulted Susan Sibanda to force her to accept the appellant's second wife into the household and for her [Susan] to leave….,. We find the ...

HH778-15 : WILSON MUKARONDA ZUNIDZA vs THE STATE
Ruled By: CHIWESHE JP and HUNGWE J

It is unfair to label the findings of credibility by the trial court as “subjective and unduly sympathetic acceptance.” The record does not support this type of criticism….,. In our view, the finding of credibility is beyond reproach.

HMA33-17 : AUBREY CUMMINGS vs THE STATE
Ruled By: MAFUSIRE J

It is a cardinal rule that the trial court is better placed to assess a witness' credibility than the Appeal Court. Said GUBBAY CJ in S v Mlambo 1994 [2] ZLR 410 [S]...,.: “The assessment of the credibility of a witness is the province of the trial court and ought not to be disregarded by an ...

HH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE
Ruled By: HUNGWE J and MUSHORE J

Grounds 1-6, 8 and 15 read as follows:-….,. “Grounds of Appeal (1st appellant) Ad conviction 1. The court a quo erred in fact and in law in convicting the appellant of abuse of duty as a public officer on the basis of the State having proved its case against him beyond any reasonable doubt yet the State had made a concession ...

Grounds 1-6, 8 and 15 read as follows:-….,.

“Grounds of Appeal (1^st appellant)

Ad conviction

1. The court a quo erred in fact and in law in convicting the appellant of abuse of duty as a public officer on the basis of the State having proved its case against him beyond any reasonable doubt yet the State had made a concession that it had not satisfied the burden of proof required in a criminal trial against the appellant and that it had no direct evidence linking the appellant to the offence but circumstantial evidence; which evidence was clearly not enough to satisfy the onus of proving its case against appellant beyond any reasonable doubt.

2. The trier of fact erred in fact and in law when it convicted the appellant on the basis of evidence of the co-accused person, Grace Pfumbidzai, whom it did not find to be a credible witness as she had given a plethora of mutually destructive defences to the charges. Thus, the court a quo erred in fact and at law in basing a conviction on inadmissible evidence of another accused's extra curial statement without ensuring that the rules of admitting such evidence and ultimately relying upon it had been satisfied.

3. The trial court grossly misdirected itself in fact and at law when it convicted the appellant yet there was no nexus between the appellant and the essential elements of the offence, more particularly, that there was no evidence at all that the appellant individually, or in connivance with the other accused, intentionally and without going to tender appointed Navistar on the 18^th March 2009 as the Air Zimbabwe Holdings (Pvt) Limited's Local Aviation Insurance Brokers.

4. The court a quo erred at law and in fact in relying on evidence from witnesses who were not credible and whose evidence was materially conflicting and contradicting. The trial court relied on the evidence of one Nyakabau, a shopped witness, who gave contradictory evidence and whose evidence was clearly a recent fabrication as it materially contradicted Grace Pfumbidzayi's evidence in relation to how the alleged presentation and/or meeting involving Navistar, FBC and Coleman had been held or conducted.

5. The court a quo erred in fact and at law when it found that the appellant was involved in the appointment of Navistar on the 18^th March 2009 yet it found, as a matter of fact, that the appointment of Navistar was not an Executive Management decision and that Grace Pfumbidzayi had lied that Appellant had told her to appoint Navistar in the presence of one Norbert Machingauta. The Court in fact that appointment was done by Grace telephonically and confirmed by her letter of March 18, 2009.

6. The trier of fact erred in facts and at law when it inferred that the appellant, by writing, “Grace, for your relevant action' meant she had to process the appointment which 'inference' is not supported by any positive proved facts in that by the 21^st March 2009, Navistar had already been appointed and logically the appellant could not have retrospectively sanctioned the appointment of Navistar Insurance Brokers (Pvt) Ltd.

8. The trier of fact erred fundamentally in fact and at law in finding that as a matter of fact the Appellant had held a meeting attended by Marsh Insurers Brokers, ZIMRE and Grace Pfumbidzayi on or about the 17^th March 2009 yet there was no evidence led in Court showing that there was such a meeting held by the said parties prior to the 20^th March 2019. The court a quo erred in fact and at law in failing to appreciate that Exhibit 15, written by Sam Nyamhamba, clearly showed that the only meeting involving the four parties had been held on the 20^th March 2009 and not before that date as found by the trier of fact.

15. The trial Magistrate erred in fact and at law when she found that the Appellant was not credible witness yet his evidence was independently corroborated by other witnesses whom the court found to be credible and that other documentary exhibits relied upon by the court as well as that the Appellant had been very steadfast in his defence even in the face of intense cross examination.”

The grounds which…, I have paraphrased above consist of an attack on findings of fact rather than raising points of law as is required when taking a decision up on appeal. To that end they are fatally flawed….,.

“GROUNDS OF APPEAL AGAINST CONVICTION (Second appellant)

1. The learned Magistrate misdirected herself at law by failing to adopt the correct judicial assessment of all the evidence adduced in the trial. See S v Tambo 2007 (2) ZLR 32 [H].

“The correct judicial assessment of evidence must be based on establishing proved facts whose proof must be a result of a careful analysis of all the evidence led.”

2. The learned magistrate misdirected herself at law when she concluded that Budhama Chikamhi, the auditor, was a credible witness and yet he stood to gain financially from testifying against the Appellant in the trial. See S v Tsvangirai 2004 (2) ZLR 210 (S).

3. The learned Magistrate misdirected herself on the facts when she concluded that Appellant was aware from mid-February 2009 that the airline's fleet was un-insured and yet unchallenged evidence from March Insurance Broker's Chief Executive, Mr Nyamhamba, was that both the broker and the insured only realised this fact on the 17^th March 2009 through a communication from Willis directed through Zimre, the re-insurer.

4. The learned Magistrate misdirected herself on the facts or law when she made a finding that the realization that the airline's fleet was uninsured by the 17^th March 2009 did not constitute a crisis or emergency and that was inconsistent to the evidence adduced by the prosecution.

5. The learned Magistrate erred or misdirected herself at law when she failed to appreciate that section 30(2) of the Procurement Act [Chapter 22:14] was meant to provide a safety valve to enable State procurement agencies to procure commodities expeditiously to the benefit of the State and the nation at large in times of dire need and emergencies as was the case herein without following the cumbersome time consuming normal tender procedure. See S v Mangoma 2011 (1) ZLR 617 [H].

6. In determining whether Appellant abused her office as a public officer, the learned magistrate erred or misdirected herself by omitting to consider the motive and surrounding circumstances behind the appointment of Navistar Insurance Brokers (Pvt) Ltd. See S v Mangoma 2011 (1) LR 617 (11)…,.

Thus, the essential element of showing favour to Navistar Insurance Brokers (Pvt) Ltd was not proved. Consequently, there was insufficient evidence to prove, beyond reasonable doubt, that the Appellant was guilty of the crime charged.

7. The learned Magistrate erred or misdirected herself at law by dismissing the Appellant's explanation that the appointment of Navistar Insurance Brokers (Pvt) Ltd was an act of necessity to avert operating an airline illegally/unlawfully due to lack of aviation insurance. See S v Mupatsi 2010 (1) lR 529 [H].

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

Of the above grounds of appeal, it was only ground 5 which appears to be an attempt in raising a point of law. However, the ground is neither clear nor is it specific and when reading it one is left wondering what the cause for complaint is. It leaves the court without a clue as to the misdirection/s by the court a quo….,.

The second appellant's original notice of appeal also fails to identify errors on points of law, but, instead, as is the case with the first appellant, in it, she makes numerous of attacks on the court a quo's findings of fact….,.

Thus, the second appellant's initial notice of appeal is fatally flawed.

Appealed SC44-19 : FEATHERS MUKONDO vs THE STATE
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Regarding the trap, the court was of the view that the appellant's case was not one where it could be said that, but for the trap, the accused would not have committed the offence. It thus confirmed the finding by the trial court that there was other evidence, apart from the trap, that proved beyond a reasonable doubt that the appellant had committed the offence. It was during a discussion of the trial court's treatment of the evidence led by the State on how the appellant solicited the bribe that the court a quo made the following remarks:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RAD); S v Katsande 1983 (1) ZLR 302. There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provisions of section 170. This the magistrate correctly found he failed to do.”…,.

It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Finally, and more importantly, the remarks by the court a quo on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him. Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an obiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law. An appeal lies against the decision of the court. It does not lie against statements or remarks made by the court during the determination of the matter and which statements and remarks do not form the ratio of the judgment.

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

The appellant filed an appeal under Rule 6 of the High Court of Zimbabwe Bail Rules, S.I.109 of 1991….,. The determination by the Acting Chief Magistrate on the certificate by the Prosecutor General was not appealed against. The court a quo was invited and persuaded to set it aside on the basis of submissions made to it ...

Appealed SC79-18 : WONDER MUNSAKA vs THE STATE
Ruled By: MAKARAU JA, GUVAVA JA and BERE JA

This is an appeal against the judgment of the High Court sitting at Hwange dated 9 November 2017. It is common cause that the appellant was arraigned before the court a quo and charged with murder. It was alledged that on 7 October 2014, and at Zenka Village, Binga the appellant wrongfully, unlawfully and intentionally killed Fortunate ...

This is an appeal against the judgment of the High Court sitting at Hwange dated 9 November 2017.

It is common cause that the appellant was arraigned before the court a quo and charged with murder. It was alledged that on 7 October 2014, and at Zenka Village, Binga the appellant wrongfully, unlawfully and intentionally killed Fortunate Mutale.

The appellant tendered a plea of not guilty to the charge. After a full trial he was convicted of murder with actual intent. The court found that the murder was committed in aggravating circumstances and the appellant was sentenced to death.

Whilst the appellant noted an appeal against sentence only, in view of the penalty of death imposed upon the appellant, it is imperative that the appeal should lie against both conviction and sentence.

In this regard we therefore requested for supplementary submissions from counsel to address us on the question of conviction. We are indebted to both counsel for their prompt submissions.

The facts giving rise to this matter may be summarized as follows:

The appellant and the deceased were husband and wife. At the time of the commission of the offence they had been married for a period of 6 years and had 2 minor children. On 7 October 2014 the appellant and the deceased had an altercation. The appellant armed himself with an axe and struck the deceased several times. The deceased died as a result of the injuries sustained.

A postmortem report was compiled and it gave the cause of death as;

1. Spinal cord injury.

2. Decapitation.

3. Chop wound.

After decapitating the deceased's head, the appellant placed it in a cardboard box under the bed in his bedroom. The body of the deceased was left lying in a pool of blood in the yard outside the kitchen hut.

In his Defence Outline, the appellant stated that he saw a man leaving the kitchen hut where his wife was sleeping. Upon questioning her about who the man was, he was provoked by her response. He picked up an axe and struck the deceased.

He also alleged that the deceased was having an adulterous affair with the man in question.

The court a quo did not believe the appellant's version. In coming to this conclusion the court took into account the evidence of the State witnesses who stated that as far as they were aware the appellant and the deceased were happily married. The appellant's grandmother, and a neighbour, denied that the deceased was involved in any extra marital affairs.

The court also considered the fact that the appellant gave conflicting stories. He abandoned his Defence Outline and stated in his evidence in chief that he found the deceased with an unknown man in the kitchen hut. He further stated that they both attacked him and he armed himself with an axe and struck the deceased in an effort to defend himself.

This story was different from his confirmed warned and cautioned statement where he made no mention of the deceased's infidelity or alleged attack by the deceased and the unknown man.

When questioned further he failed to give a coherent account of what had transpired on the night in question.

The court a quo concluded that the appellant was not being truthful and that he had killed the deceased in cold blood.

Counsel for the appellant conceded, in his supplementary heads of arguments, that the court was correct in finding the appellant guilty of murder with actual intent. He submitted that repeatedly striking the deceased with an axe and decapitating the deceased was proof that he intended to kill the deceased.

We are satisfied that the court a quo cannot be faulted for convicting the appellant with murder with actual intent to kill. The assault upon the deceased was vicious and protracted. The injuries were inflicted by an axe and directed at the deceased's head. The appellant struck the deceased no less than 11 times.

The appellant's version of events was contradictory indicating that he was changing his story as the trial progressed.

The conviction of murder with actual intent is accordingly confirmed….,.

In respect to sentence, it has been submitted, on the appellant's behalf, that the sentence of death is so excessive that it induces a sense of shock.

Counsel for the State submitted that the sentence was appropriate in the circumstances. She stated that the appellant had not challenged the finding by the court a quo that the murder was committed in aggravating circumstances in terms of section 47(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Section 337 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that the court may pass a sentence of death upon an offender convicted of murder if it finds that the murder was committed in aggravating circumstances.

The exercise of discretion by the court a quo, to impose the death penalty in the circumstances of this case, cannot be impugned.

Accordingly, we are of the unanimous decision that the appeal against both conviction and sentence lacks merit.

For these reasons the appeal is hereby dismissed.

HH303-15 : LYSON ZIYADHUMA vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was convicted for contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], on 14 February 2013, and sentenced to the minimum mandatory sentence of nine (9) years after the learned presiding magistrate found no special circumstances to warrant a lesser sentence. This appeal is against both conviction and sentence. In his notice of appeal the ...

This appeal is against both conviction and sentence.

In his notice of appeal the appellant has laid basically three grounds of appeal, viz;

(i) That the learned magistrate failed to appreciate the existence of the defence of mistake or ignorance of 'facts', whatever was intended.

(ii) The second ground of appeal is given as that the learned magistrate misdirected himself when he convicted the accused person when such conviction was not supported by evidence.

(iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant.

As regards sentence, the point taken is that the learned magistrate grossly misdirected himself in that he failed to adequately and properly explain the issue of special circumstances before the appellant was sentenced.

The learned magistrate was also attacked on his sentence for allegedly paying lip service to the appellant's issues in mitigation, and, in particular, in failing to properly explain the issue of special circumstances before sentence.

The respondent's position is that the conviction cannot be faulted and that it need not be interfered with.

It is on sentence that the respondent felt constrained to support it. Counsel for the respondent felt that there was merit in the argument that no special circumstances were explained to the appellant. The respondent suggested that this court considers the remittal of the case back to the court a quo for purposes of having the issue of special circumstances further canvassed.

It might well be true that at the time the appellant's counsel perused the court record the written reasons were not there but I find it inconceivable that the appellant's counsel would have come to the conclusion that when the magistrate convicted the appellant he just did that with no reasons at all.

In any event, the proper procedure to have adopted if indeed there were no reasons for judgment would have been for the appellants counsel to file an application for review for such a procedural irregularity. An appeal could only have been an attack on the reasons for judgement, which, incidentally, the appellant's counsel did which pre-supposes that there must have been reasons somewhere which led to the framing of the grounds of appeal.

The irony is that the reasons for judgement given by the learned magistrate properly fit into the evidence that was led at trial making it highly improbable for one to imagine that those reasons were manufactured or created after the conviction of the appellant.

The judgment, as crafted by the learned magistrate, clearly shows that the appellant crucified himself by projecting himself as the owner of the complainant's beast to whoever he interacted with.

According to the evidence of Evson Chakamba, it was the appellant who personally approached him to hire his motor vehicle to ferry the beast forming the subject matter of these proceedings.

The appellant disclosed to the witness that he wanted to sell the beast to T.M. Supermarket, but, somehow, the slaughtered animal ended up being taken to Dzonzai Butchery. No meaningful challenge was given to the evidence of this witness, meaning the appellant was substantially in agreement with the evidence of this witness.

The evidence of Blessing Chakamba corroborated that of his father Evson Chakamba in all material respects in further cementing the guilt of the appellant.

The young man's uncontroverted evidence was that the appellant claimed ownership of the beats which was subsequently slaughtered at the abattoir before the carcass was taken to Dzonzai Butchery in Chipinge. The witness confirmed that, throughout, the appellant was firmly in charge of the beast.

The witness further disclosed to the presiding magistrate that throughout his interaction with the appellant, the appellant disclosed that the beast was his. Not only that but that the appellant personally exhibited fake clearance papers for the animal.

The learned magistrate made a very careful analysis of the evidence that was presented including the rejection of the evidence by the appellant where he attempted to paint the picture that the animal belonged to his accomplice.

In my view, the learned magistrate's finding on the guilt of the appellant was beyond reproach. It cannot be faulted and need not be interfered with by this court.

The guilt of the appellant did not even need one to invoke the provisions of sections 205 and 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This is so because all indications are that the attempted disowning of the beasts, which only assumed prominence during the defence case, must have been an after-thought. This explains why this was not suggested to witnesses who actually dealt directly with the appellant. If indeed the beast belonged to his brother, as he stated in his Defence Outline, he would have disclosed this to all the witnesses he dealt with....,.

Accordingly, the conviction is confirmed...,.

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was charged with the crime of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] together with one Stanley Musendo (“Musendo”).

During the trial, the appellant was the second accused. Despite their pleas of not guilty, they were both convicted as charged and each of them was sentenced to 10 years imprisonment of which 2 years imprisonment was suspended for five years on condition of good behaviour. A further 4 years imprisonment was suspended on condition that the accused make restitution on or before 30 June 2014 leaving an effective 4 years imprisonment if all conditions are met.

The brief facts upon which the conviction was based can be summarised as follows:

The appellant, a legal practitioner, was engaged by the complainant, Khaled Otman (Otman”), a Libyan national, in his capacity as an attorney. The initial brief was to cause an eviction of certain tenants who had breached a residential lease agreement. An attorney-client relationship blossomed. With time, the client's portfolio included both movable and immovable assets. He was managing the business interests of a company called Adawillia Investments (Pvt) Ltd, a commercial arm of the Libyan Government.

Khaled Otman fell ill and had to hastily leave for Libya for treatment. He believed he would be away for no more than two or so weeks. He asked his attorney, the appellant, to recommend someone to superintend over the company business whilst he was away. That person would get 10% as commission on rentals received for executing the mandate. He would manage the haulage transport business, and so on.

The appellant recommended one Stanley Musendo, who was later to become the first accused. An oral briefing in the attorney's offices took place and an oral agreement was concluded. The company's Operations Manager, one Kenneth Madanhi (“Madanhi”) was asked by the complainant, Khaled Otman, as a director of Adawillia Investments (Pvt) Ltd, to take Musendo to their company premises in Msasa, Harare where the transport business was based on a fairly large industrial Stand.

Musendo was allocated one of the residential units in the 10 unit block of flats at 56 Natal Road, Avondale so that he is in close proximity with the tenants from where he would be collecting rentals. Musendo decided to lease the haulage trucks from the company himself at a rate of US$5,000 per month. He paid for only one month, around November 2008, before Khaled Otman left. He left in November 2008.

Khaled Otman remained indisposed for a longer period than he had anticipated. The company's directors, in Tripoli, decided to delegate someone else from the Libyan Embassy to take over the supervisory duties previously held by Khaled Otman, one Ghunim.

When Ghunim approached the appellant to collect the rentals expected from Musendo, he was toasted from pillar to post before he finally managed to contact Musendo. He was paid only US$260. When he protested, Musendo, through his company, P.M.C (Pvt) Ltd, interdicted him from approaching or entering the Libyan companies' premises. He then learnt of the attempt by the appellant and Musendo to take over Adawillia Investments (Pvt) Ltd, its assets, both movable and immovable. He also learnt that the trucking business assets had been sold; that the immovable property at Msasa had been subdivided and one of the three Stands sold; that no money had been collected by the appellant from Musendo.

When eventually Khaled Otman arrived in Zimbabwe, his investigations led him to conclude that the appellant had connived with the said Musendo in all this and had caused the sale of immovable property and the attempted takeover of the company by Musendo. They were jointly charged with fraud for which they were both convicted.

They both appeal against conviction and sentence.

Pending this appeal, Musendo skipped bail and has not pressed on with the appeal. This appeal is in respect of only Tapiwa Givemore Kasuso.

Mr Rubaya, of Nyamushaya Kasuso and Rubaya law firm filed a notice of appeal on the appellant's behalf. It consists of thirteen grounds of appeal against conviction and six grounds of appeal against sentence.

The thirteen grounds of appeal are a rambling critique of the findings of fact by the trial court.

Consequently, the heads of argument prepared by Mr Mpofu were afflicted by the same malady. The heads of argument did not follow the grounds of appeal as proposed in the notice and grounds of appeal filed in support of the appeal against conviction. The heads consisted of the actual argument and did not comply with the High Court Rules, 1971 (see order Rule 238).

The essence of Mr Mpofu's argument is captured in his opening paragraph where he states:

“1.1 There is no doubt that justice miscarried in this matter. The charge brought against the second appellant ought not to have survived the application for discharge appearing at pages 447-469 of the record and leave is sought that reference be had in this appeal to three submissions particularly relating to the manner in which the evidence led for the State is analysed.

Second appellant clearly committed no offence and the charge that he faced was clearly not established.”

Mr Mpofu urged this court to find that the appellant faced one set allegation which were not proved but ended up being convicted on an unclear basis. He states that the story relied upon by the State was false and ought to have been rejected as such. He based his submission on the claim that the court a quo found, as fact, that on 17 November 2008, in Khaled Otman's presence, an agreement was drafted by the appellant.

Having found this as common cause, Mr Mpofu argues that it defies logic that the learned magistrate proceeded to convict the appellant on the basis of a charge which says he crafted a fictitious document after Khaled Otman had left the country. He relies on the evidence of consummation of the agreement given by Kenneth Madanhi as well as what Khaled Otman told Madanhi concerning the agreement.

Because the court a quo accepted that the appellant handed a copy of the agreement to Khaled Otman before he signed it and that Otman took it away, there was no obligation on the appellant to ensure that Khaled Otman read it before he signed since Otman had ample opportunity to read it before signing it.

The reasoning adopted by the court, so Mr Mpofu argued, is that the court disagreed with the manner in which the appellant conducted his business. That did not prove that the appellant was guilty of fraud.

The above argument, by Mr Mpofu, speaks to the assessment of the factual findings by the court a quo.

An Appellate Court will not lightly interfere with the findings of fact by a trial court which are based on the credibility of witnesses. The reason for this is that the trial court is better placed to assess the witnesses from its observation as it enjoys the advantage of seeing and hearing them first hand.

In S v Isolano 1985 (1) ZLR 62 (SC) DUMBUTSHENA CJ expressed himself on this principle this way;

“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 McMILLAN, in Watt (or Thomas) v Thomas [1947] ALL ER 582 @ p590 B-D very appropriate in this case. He said;

'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 conclusion upon the case; but, it is only part of the evidence. What is lacking is evidence of demeanour of the witness, 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 of 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 the 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 in 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 Hughs v Graniteside Holdings (Pvt) Ltd SC13-84 (unreported); S v Mlambo 1994 (2) ZLR 410 (S); Murambiwa v State HH42-15.

That approach, of an Appellate Court when invited to interfere with the factual findings of a trial judge, was restated, not for the first time, by the English Supreme Court in McGraddie v McGraddie [2013] UK SC 58; [2013] 1 WLR 2477 and accurately summarized in the headnote:

“It was a long settled principle, stated and related in domestic and under common law jurisprudence, that an Appellate Court should not interfere with the trial judge's conclusions on primary facts unless satisfied that he was plainly wrong.”

LEMISON LJ returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In a vivid passage at paragraph [114] he said:

“The appellate courts have been repeatedly warned by recent cases, at the highest level, not to interfere with findings of fact by trial judges unless compelled to do so. This applied not only to findings of facts but also the evaluation of those facts and inferences to be drawn from them….,. The reasons for this approach are many. They include:-

(i) The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what true facts are if they are disputed;

(ii) The trial is not a dress rehearsal. It is the first and last show of the night;

(iii) Duplication of trial judge's role, on appeal, is a disproportionate use of limited resources of an Appellate Court, and will seldom lead to a different outcome in an individual case.

(iv) In making his decisions, the trial judge will have regard to the whole sea of evidence presented to him, whereas, an Appellate Court will only be…, hoping.

(v) The atmosphere of the courtroom, in any event, cannot be recreated by reference to documents (including transcripts of evidence).

(vi) Thus, even if it were permissible to duplicate the role of the trial judge, it cannot, in practice, be done.”

I am of the firm view that the court a quo was entitled to come to the findings of fact that it did, which include findings on credibility of the State witnesses. These findings and inferences, relating to the central issues in this appeal, present a complete block to its success.

Mr Mpofu complains that an agreement was reached on 17 November 2008 between Khaled Otman, Kenneth Madanhi, Musendo and the appellant and was reduced to writing, yet the appellant was convicted on the basis of the charge which says he crafted a fictitious document after Khaled Otman had left the country.

This assertion calls for closer scrutiny.

The agreement between Khaled Otman, Musendo, and the appellant was that Musendo was to superintend the complainant's business by way of collecting rentals. Musendo would also pay rent for the haulage trucks that he was hiring from the complainant's company, represented by Khaled Otman.

It was an oral agreement.

Kenneth Madanhi was present when this agreement was concluded. Madanhi was however, not part of the discussions leading to this oral agreement, the basis upon which he was instructed by his employer to proceed to Msasa and show Musendo the assets of the company and do an inventory of the same.

Kenneth Madanhi was later to be approached by Musendo with a request that he signs a document on behalf of Khaled Otman, who, by then, was out of the country. Madanhi declined this invitation.

The agreement found to have been concluded at Mantsebo & Associates was the gentlemen's agreement which the magistrate adverted to in the paragraph relied on by Mr Mpofu. In that same paragraph, clearly, in light of the evidence in the record, when the magistrate refers to the written agreement, she is referring to the one presented to Kenneth Madanhi after Khaled Otman had left the country. That this must be so clearly emerges from the magistrate's treatment of the evidence of the appellant which she rejects by pointing out that it is highly unlikely that having drafted the agreement, the appellant would not have supervised its signature by the complainant since the complainant was still in Zimbabwe. He had reposed his trust in him as his attorney. On this basis, she rejected the claim by the appellant that the complainant signed the “agreement”.

The analysis of the evidence, on whether what was agreed to at Mantsebo & Associates is what was eventually reduced to into exhibit 1, appears at p23 of the record. The court carefully considered the “agreement” and correctly observed that whist it is headed “lease agreement” it had provision of a take-over of 55% of shares in Adawillia Investments (Pvt) Ltd and that it did not mention the US$330,000 and ZW$168 billion claimed to have been paid for the shares. She clearly expresses doubt as to the true nature of the document that was produced as exhibit 1. She then comes to the only reasonable reference that the “agreement”, exhibit 1, did not correctly represent what was agreed to by the parties to the gentlemen's agreement.

She also finds that the document was never given to Khaled Otman at any stage but may have been shown to Kenneth Madanhi when he was invited to sign it on behalf of Otman.

She finds that both Khaled Otman and Kenneth Madanhi never signed it (record p 23).

She finds that what Khaled Otman had asked the appellant to be the person's mandate was nowhere in the document. She then concludes that the document was the misrepresentation in this case.

Mr Mpofu took issue with the competence of the allegation that there was a misrepresentation - an essential element of the offence of fraud.

In his view, the court made no finding in respect of this essential element. He argued that if the allegation is that the appellant crafted the document such that it did not say what the parties had agreed on, then the document did not misrepresent anything to Khaled Otman. Since he did not see it, he could not therefore have been misrepresented by it. If it misrepresented to a third party, then that party, not Khaled Otman, must be the complainant.

Additionally, Mr Mpofu argued that that party must have suffered actual or potential prejudice as a result of acting on the misrepresentation.

It needs not be repeated that there are six legal requirements that must be perfectly complied with before an accused can be convicted of a crime. These are:

(a) Legality;

(b) Conduct;

(c) Compliance with definitional elements;

(d) Unlawfulness;

(e) Capacity;

(f) Culpability;

See sections 12, 13, 14, 15, 16 and 17 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”].

At common law, fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial. Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] states:

“136 FRAUD

Any person who makes a misrepresentation –

(a) Intending to deceive another person or realising that there is a real risk or probability of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his prejudice, or realizing that there is a real risk or probability that another person may act upon the misrepresentation to his or her prejudice; shall be guilty of a fraud if the misrepresentation causes actual prejudice or is potentially prejudicial to another person, and liable to:-

(i) A fine…,.

(ii) Imprisonment for a period not exceeding thirty five years or both.”

The first requirement is that there must be a misrepresentation. This is the conduct requirement of the crime. By misrepresentation is meant a deception by means of a falsehood. Put differently, the accused must represent to another that a fact or set of facts exists which in fact does not exist.

Although the misrepresentation will generally take the form of writing or speech, conduct other than writing or speech may sometimes be sufficient; such as a nod of the head to signify consent; S v Larking 1934 AD 91. The misrepresentation may either be express or implied, by commission or omission.

In most cases, misrepresentation is made by way of commission. Further, the misrepresentation must refer to an existing state of affairs or to some past event - but not to some future event; S v Feinbert 1956 (1) SA 734 (O)…,.

In certain situations, however, a person who promises to do something at some future stage implies, when making the promise, that she intends fulfilling it; if this is not in fact her intention she is guilty of a falsehood regarding an existing state of affairs in that she implies that she has a certain belief or intention which she in fact does not have; R v Persotam 1938 AD 92.

As for the second element of the crime, namely, the requirement that the misrepresentation must cause actual prejudice or be potentially prejudicial, the crime is committed only if the lie brings about some sort of harm to another. This is referred to as prejudice.

In many instances of fraud, the person to who the false representation is made is in fact prejudiced. Actual prejudice is, however, not required, mere potential prejudice being sufficient to warrant conviction. The prejudice need not sound in money only; or only patrimonial. Potential prejudice means that the misrepresentation, looked at objectively, involved some risk of prejudice, or that it was likely to prejudice.

“Likely to prejudice” does not mean that there should be a probability of prejudice, but only that there should be a possibility of prejudice; S v Hayne 1956 (3) SA 604 (A). What this means is that what is required is that prejudice can be, not will be, caused.

More importantly, the prejudice need not necessarily be suffered by the representee, i.e the person to who the misrepresentation is directed; prejudice to a third party, or even to the State or the community in general is sufficient; S v Myeza 1985 (4) SA 30 (T)…,.

It is not relevant that the victim was not misled by the misrepresentation because it is the representation's potential which is the crucial issue; R v Dyonta 1935 AD 52; S v Isaacs 1968 (2) SA 187 (D)…,.

As such, it follows that since potential prejudice is sufficient, it is unnecessary to require a causal connection between the misrepresentation and the prejudice. Even where there is no causal connection there may still be fraud provided one can say that the misrepresenting holds the potential for prejudice. After all, a successful misrepresentation is not a requirement for fraud.

Applying the above principles to the facts of the present matter, it will be clear that several instances of misrepresentation are apparent. As the court a quo found, the parties, i.e. the complainant, the appellant and Musendo, agreed that Musendo was to superintend the businesses and assets of Adawillia Investments (Pvt) Ltd for the short duration of the complaint's absence from Zimbabwe.

After Khaled Otman left, the appellant and Musendo crafted an “agreement” which did not correctly capture this agreement. It was clearly a document which was calculated to deceive whoever was expected to rely on it; its estate agents; the tenants; the purchasers of land; and so on.

The contention by Mr Mpofu was that since the complainant never saw this document the charge was fatally flawed and the appellant could not have been convicted on this charge without it being amended.

A reading of both the common law, in respect of the element of misrepresentation, as well as section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not support this contention.

I have demonstrated why common law principles do not support this intention. I proceed to examine section 136 of the Criminal Law (Codification and Reform) Act that speaks of “intention to deceive another person” and “intending to cause another person to act upon the misrepresentation to his or her prejudice or realizing that there was a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice.”

The wording is wide enough to include the common law position in which prejudice is not suffered only by the person to whom the misrepresentation is made with intent to deceive generally.

Thus, whilst it is true that Khaled Otman never acted upon the document produced after he left the country, he clearly went away under a false belief created by the appellant and Musendo that Musendo would act as his agent in supervision of the assets and business interests of Adawillia Investments (Pvt) Ltd for the duration of the period that the applicant would be away.

In truth and in fact, the appellant and Musendo designed a scheme whereby not only would Musendo be in charge of Adawillia Investments (Pvt) Ltd business assets but would also take the proceeds for his own use. He proceeded to sell the portion of the immovable asset which the appellant must have kept to excised from the main title deed. This is the inescapable inference from the evidence which shows that the appellant was a practicing attorney in the law firm that facilitated the sale of the immovable property.

The appellant's footprints, through his erstwhile partner, one Nyamushaya, are so vivid that the court a quo cannot be faulted for its finding that he indeed facilitated the sale of all the assets which were sold, both movable and immovable.

In any event, the State case is assisted by the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides for the liability of co-perpetrators.

The facts established at trial inexorably implicate the appellant in the commission of the crime. The appellant identified and recommended Musendo to be the agent of the complainant. He drew up the document which Musendo used to facilitate the sale of the complainant's assets. When the matter was called for trial, he assisted in facilitating the absence of a witness who had information as to how his partner, Nyamushaya, facilitated the sale of the assets together with Musendo.

The circumstances from which the inference of guilt was drawn was cogently and firmly established. The circumstances of the case, taken cumulatively, do indeed form a claim so complete that there is no escape from the conclusion that, within human probability, the crime was committed by Musendo and the appellant and no-one else. See S v Fata 2013 (2) ZLR 635; S v Mtetwa 2014 (2) ZLR 533.

In the circumstances, I am unable to disturb the appellant's conviction for fraud by the court a quo….,.

In the result, the appeal against conviction…, is dismissed.

BERE J authorizes me to state that he agrees with this judgment.

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE
Ruled By: PATEL J and HUNGWE J

This is an appeal against the conviction of the appellant on one count of rape by the Regional Magistrates Court, sitting at Bindura.The appellant, who was legally unrepresented, pleaded not guilty to the charge.He was convicted and sentenced to a term of 8 years imprisonment of which a period of ...

This is an appeal against the conviction of the appellant on one count of rape by the Regional Magistrates Court, sitting at Bindura.

The appellant, who was legally unrepresented, pleaded not guilty to the charge.

He was convicted and sentenced to a term of 8 years imprisonment of which a period of 2 years was suspended on condition of good behaviour.

The Facts

The complainant in this case is Barbra Mukadyata, a female juvenile aged 16 residing in Zvomuya Village, Madziwa. The appellant is a male adult aged 23 staying in the same village. He is employed as a soldier at 4.2 Battalion, Gutu. The appellant and the complainant were in love with one another.

It is common cause that on the 28th of November 2004, at about 7:30pm the appellant met the complainant on her way home from Madziwa Township. The appellant had sexual intercourse with the complainant within a bushy area near the road.

The State case was that the appellant coerced and subdued the complainant into having sex with him and that the complainant did not consent to the act of sex. The complainant later reported the matter to her sister. A few days thereafter, the police were notified and the appellant was then arrested. According to the medical report subsequently compiled and produced at the trial, the complainant's hymen was torn and penetration had been effected.

The appellant's defence was that on the day in question he and the complainant walked together along the road until they arrived at a secluded place. They then had consensual sexual intercourse. Thereafter, he walked with her and they parted when they were close to her home.

Subsequently, at a gathering of their respective families, he confirmed that they were in love and that they had had sexual intercourse. He then took her home, in accordance with customary norm, and they voluntarily stayed together as husband and wife. Three days later, the complainant left his residence and reported the alleged rape to the police.

The Arguments

Counsel for the appellant submits that his conviction is unsustainable for a number of reasons.

The complainant did not raise any alarm at the time of the sexual encounter even though other persons were passing nearby. Moreover, there was no sign of any struggle at the scene of the alleged rape. The complainant's report to her sister was not spontaneous but was induced in order to justify her sexual misbehaviour. She only reported the matter to the police after she felt ill-treated by the appellant's family and after her intended marriage to the appellant did not materialise. She therefore had a strong motive to incriminate the appellant.

Counsel for the respondent submits that although the complainant was in love with the appellant, she was surprised by the sexual encounter. Her clothes were soiled and she reported the rape to her sister at the earliest opportunity. The appellant acted in the manner that he did because of the local customary practice whereunder whichever man first had sexual intercourse with a virgin was entitled to take her as his wife. The appellant feared the possibility of some other man deflowering and claiming the complainant as his wife. The fact that the matter was temporarily settled as between the two families does not detract from the complainant's lack of consent at the time of the alleged rape.

The Complainant's Evidence

Most of the facts in casu, relative to the relationship between the appellant and the complainant and the events that occurred well after the alleged rape, are common cause.

What is in dispute is the nature and circumstances of the sexual encounter in question.

In this respect, the complainant's evidence-in-chief, as to what transpired at that time and immediately thereafter, is highly pertinent. At pages 4 to 5 of the trial record, she states as follows:

“As we were going down the dust road we got to some place where there were some mukute trees. Accused person asked me if I was not prepared to go to his place of residence, but I told him I wasn't because his parents talk a lot. As we were standing there, he then grabbed me and dragged me to the side of the road. He grabbed me yet again and placed me yet on another point besides the road. He then fell me to the ground, he then had sexual intercourse with me. After doing that I asked him why he had done that to me when I had not consented.

…,. Soon after he had finished I could not wear my shoes. I held them as we walked together. When we got to a point in between our homes, he then told me that he was going home. I asked him how he could leave me like that after having had sexual intercourse with me because by then I was bleeding. My pair of pants was soiled with blood as well as my skirt. He then left for his place of residence leaving me alone standing there. I was stranded. I was afraid to go home because this time then my sister was looking for me. I was afraid to go home because it was my first time to have had sexual intercourse with a man. When my sister saw me she asked me why I delayed in coming home that day. I was afraid to tell her. She got a switch intending to assault me. I asked her to stop assaulting me. I then explained everything what had happened to her.”

As regards the complainant's relationship with and feelings towards the appellant after the alleged rape, she had this to say, at pages 6 to 7 of the trial record, in response to questions from the prosecutor:

“He is saying you later stayed with him for three days as husband and wife. Did that happen?

Yes, your Worship. I went to his place of residence. Upon my arrival, the father of the accused person started (ragging) against the accused and myself blaming him for having brought me home as his wife, but Givemore told his father that this was the woman that he wanted for marriage, but the father suggested that he wanted the girl from Bindura. Givemore was against this. They argued over this up until Givemore left me there and came to Bindura. When I remained behind, the parents could not give me anything, not even food or water.

Why did you go to his house?

My parents said that I should go to my husband. I agreed, your Worship, and proceeded to my husband, but, on getting there, the parents to the accused person said they didn't want to see me.

Why were you approaching him as your husband after he raped you?

Your Worship, I had given my life to him as he was the first man to have sexual intercourse with me, and, therefore, he was the man I was supposed to have married, to go into marriage and not any other.

But you insist he had raped you?

Yes, your Worship, I had not consented but I had given my life to him. I want him to be my husband because he is the only one who had sexual intercourse with me. I cannot go to any other man for marriage now except him.

You first reported the matter to your sister….,. She got hold of a switch intending to assault you. Why did she want to assault you?

She wanted me to tell her the truth of what had happened because I was rather reluctant to tell her because I was afraid.

I am not clear. Did she want you to tell her why you delayed coming home?

Yes.

So, you gave a report of rape to her voluntarily. It was not the assault was not calculated to solicit that report from you but to solicit satisfactory reply as to why you had….,.?

She wanted me to tell her why I had delayed in coming home which was unusually of me. That is why, that is when I asked her to stop so that I could tell her everything what had happened.

When was the report made to the police? How long after you had been ravished?

It was after two days. It was after I had been chased away from home by accused's parents and I didn't know where to go.”

Decision

It is clear from the complainant's testimony that she was, and continues to be, in love with the appellant. Their meeting on the night in question was not unusual and entirely voluntary. After the alleged rape, she walked with the appellant and wanted him to remain with her.

One of the principal features of evidence against the appellant was the fact that he effected penetration without the complainant's pants having been removed. This fact was relied upon to draw the inference that sexual intercourse took place without the complainant's consent.

In the circumstances of this case, I take the view that the trial court's approach in this respect was misdirected.

In criminal cases, it is a well established principle that guilt by inference cannot be concluded unless the inference sought to be drawn is consistent with other proven facts and those facts exclude the possibility of any other inference. See S v Blom 1939 AD 188; S v Phiri SC78-88.

The inference of non-consensual sex drawn in casu is inconsistent with the surrounding circumstances, viz. the pre-existing relationship between the parties and the absence of any sign of struggle or cry for help at the time of their sexual encounter. Moreover, the facts, as proven, do not exclude the possibility that the complainant's pants were not removed during the act of sex because of its illicit and surreptitious nature coupled with the fact that it was performed alongside an open road.

What is critical in casu is the manner and circumstances in which the complainant made her report to her sister.

She was obviously confused and ashamed of what had happened and was understandably afraid to explain her delay in returning home that night. Her confusion was compounded by the fact that her sister threatened to assault her. Her evidence suggests that her sister might well have already begun to beat her.

In these circumstances, it cannot be said that her report was voluntary and spontaneous. It is possible, if not probable, that it was the fear of her sister's wrath and chastisement that induced the complainant to declare that she had been raped by the appellant.

As regards the complainant's subsequent report to the police, there is a strong possibility that she acted in a recriminatory manner following her rejection and ill-treatment at the hands of the appellant's parents. Her report to the police may well have been made in order to rehabilitate herself in the eyes of her own family.

It is trite that a complainant in a rape case should make her complaint or report freely and voluntarily and without any undue influence. See R v Gittleson 1938 SR 165; S v Mbanje SC75-89; S v Zaranyika 1997 (1) ZLR 539 (H)…,.

Having regard to the complainant's own evidence, I am satisfied that her reports of the alleged rape, both to her sister, and, later, to the police, were neither voluntary nor spontaneous. The learned Regional Magistrate should have guarded against the great likelihood and danger of false incrimination. See S v Ziyando SC79-89.

Taking all of the evidence into account, I am in agreement with counsel for the appellant that the evidence led by the State did not rebut the possibility of consensual sexual intercourse having taken place between the parties. The appellant's version of what transpired on the night in question was reasonable and within the bounds of possibility.

He should have been given the benefit of the doubt and acquitted on the charge against him. See S v Moyo & Anor SC12-93, where it was observed as follows:

“A court cannot also decide on the basis of whose story is more probable and credible because of the burden of proof. If the defence version could reasonably possibly be true, although improbable, the accused must be acquitted.”

In the result, I am of the view that the State failed to establish the accused's guilt beyond a reasonable doubt at his trial and that his conviction on the evidence before the court a quo is unsafe and cannot be allowed to stand.

The appeal is accordingly allowed. The conviction in casu is quashed and the sentence imposed is set aside.

HH420-13 : MAZVITA EVELYN FATA vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

The appellant appeals against her conviction and sentence. She denied that she had stolen US$24,000 from her employer, but, after a trial, she was convicted and sentenced to 4 years imprisonment of which 6 months were suspended for 5 years on condition of good behaviour and 36 months on condition she makes full restitution of the whole amount through the Clerk of Court on or before 30 April 2012.

There is an order annexed to the sentence requiring “household property to be returned to accused.”

The case against the appellant was built around the claim by the complainant that she lost US$24,000 around the time the appellant worked for her as a housemaid. The complainant stated, in her evidence, that she engaged the appellant as a maid in March 2011. She worked mornings only. She did not stay on the premises.

In January, the appellant told her that she had had a miscarriage. They (appellant and her husband) left their residence, which was across the road from hers, to proceed to their rural home. It was then that she picked a rumour concerning the appellant's sudden good fortune. As a result, she checked her own treasure and found her savings, amounting to US$24,000 missing. She instantly suspected the appellant and reported her suspicion to the police. The appellant was arrested.

The complainant stated, in her evidence in court, that she kept her savings in a locked built-in wardrobe. She believed the appellant found her keys where she kept them and unlocked it before helping herself to this sum of money. This led the appellant to brag that she was rich to those in her circle of acquaintances. The police recovered household property. The investigating officer told the court, in evidence, that the appellant told her that the complainant's husband had given her some money after they fell in love. The appellant also told her that she believed a house belonging to the appellant was recently built using the proceeds of theft since it was a newly-built three roomed house.

Another State witness, Patricia Magadu, the appellant's sister-in-law, told the court that the appellant advanced her a sum of US$3,000. According to this witness, the complainant's husband had raped her and they were caught in the act. He paid her off in the sum of US$7,000.

In her defence, the appellant told the court that, in August 2011, whilst employed by the complainant, she had been raped by the complainant's husband after which the complainant's husband gave her US$5,000. He had given her another US$2,000 after another sexual escapade in their computer room. From the two amounts, she had built her three-roomed house in the communal lands and lent her sister-in-law, Patricia Magadu, US$3,000. She bought household effects using the remainder.

She stated that this happened well before the complainant allegedly lost her savings. She denied that she could have stolen the complainant's savings as she had never been left alone inside her main bedroom where the complainant claimed she kept the money. In any event, she stated that there was a screen door to the bedroom which would always be locked. She had no knowledge of where this money was kept or how it was secured.

No-one saw the person who took the complainant's savings from wherever it was. No one, besides the complainant, knew how much she kept and therefore how much was stolen from her - not even her husband. No one knows when the complainant lost her money - including the complainant herself. So, at the outset, there is no proof that the complainant had the amount of money in the house that she claims she had kept locked away for a rainy day. Not even her husband, who stated that he gave her money to keep, was able to corroborate her as to the amount she kept in the house.

As to the date of the theft, whilst it is not an essential element of theft, the particulars of when the crime allegedly occurred would assist the accused in preparation of her defence. Presently, the averment is that the theft occurred “during the period extending from August 2011 to 14 January 2012.”

The case against the appellant was therefore based on circumstantial evidence.

The evidence tendered by the prosecution is not sufficient to prove, unerringly, that the accused was responsible for the crime. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

In S v Hartlebury & Anor 1985 (1) ZLR, this court, per McNALLY J…, set out what constitutes circumstantial evidence in the following terms:

“Now, all this evidence may be described as 'circumstantial evidence'. As regards the inferences to be drawn from such evidence, I have accepted that one must ask oneself whether a reasonable man might draw the inferences sought to be drawn by the State and it is perhaps useful in this connection to cite the remarks made in S v Cooper & Ors 1976 (2) SA 875 (T) at 888H to 889C as follows:

'When triers of fact come to deal with circumstantial evidence and inferences to be drawn therefrom, they must be careful to distinguish between inference and conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases, the inference does not go beyond reasonable probability. But, if there are no positive proved facts from which the inference can be made, a method of inference fails and what is left is mere speculation or conjecture…,.

One often gets cases where the facts proved in evidence, the primary facts, are such that the tribunal of fact can legitimately draw from them an inference one way or the other; or, equally legitimately, refuse to draw any inference at all. But, that does not mean that when it does draw an inference it is making a guess. It is only making a guess if it draws an inference which cannot legitimately be drawn; that is to say, if it is an inference which no reasonable man could draw.'”

In Attorney-General v Paweni Trading Corp (Pvt) Ltd 1990 (1) ZLR 24, per KORSAH JA, the Supreme Court held…,:

“It seems to me that, in determining the parameters of the phrase under consideration, the court is in a way concerned with the rules governing circumstantial evidence; for the court is merely drawing inferences from the proven facts. And, as BEADLE CJ observed in R v Sibanda & Ors 1965 RLR 363 (A) at 370 A-C; 1965 (4) SA 241 (SRA) at 246 B-C:

'Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of the accused beyond reasonable doubt: See R v de Villiers 1944 AD 493.

Where, however, there is a particularly vital fact which, in itself, determines the guilt of an accused, it must be proved beyond reasonable doubt.'

To my mind, then, if there are reasonable grounds for taking certain facts into consideration, and all the facts, when taken together point inexorably to the guilt of an accused beyond peradventure, but the trial court nonetheless acquits the accused, then the trial court has taken a view of the facts which could not reasonably be entertained. Put another way, if, on a view of the facts, the court could not reasonably have inferred the innocence of the accused, then the verdict of acquittal is perverse and the Attorney General is entitled to attack it.”

In S v Maranga 1991 (1) ZLR 244 the Supreme Court, per KORSAH JA, expressed itself on the subject thus;

“Before I answer this question, I wish to draw attention to the dangers inherent in drawing conclusions from circumstantial evidence.

LORD NORMAND observed, in Teper v R [1952] AC 480 at 489 that:

'Circumstantial evidence may sometimes be conclusive, but, it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast doubt on another.

Joseph commanded the steward of his house, 'put my cup, the silver cup, in the sacks mouth of the youngest'; and, when the cup was found there, Benjamin's brethren too hastily assumed that he must have stolen it.

It is also necessary, before drawing the inference of the accused's guilt from circumstantial evidence, to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'

I ask myself; is the inference that the first appellant was hunting at Twin Tops Ranch the only one to be drawn from the circumstantial evidence?

While the circumstantial evidence leaves me with a strong suspicion that he was up to no good, it cannot be said that the circumstantial evidence proffered excludes any other conclusion. Even if the first appellant's explanation that he was on his way to purchase vegetables from the resettlement area does not have a ring of truth about it, it still is not inconsistent with the circumstantial evidence and remains a possible explanation of his presence on a public thoroughfare adjacent to the ranch. At best, the circumstantial evidence raised no more than a very strong suspicion that the first appellant was there to hunt. The learned trial magistrate could not have been satisfied that the explanation was false. R v Difford 1937 AD 370 @ p249.”

In the Indian Supreme Court matter of Bhagat Ram v State of Punjab AIR (1954) SC 621 it was laid down that, where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

The same Court, in C. Chenga Reddy v State of A.P. [1996] 10 SCC 193, observed thus:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

In Padala Veera Reddy v State of A.P. AIR (1990) SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests, which, in my respectful view, aptly summarize the approach of the courts here as well as in South Africa and in England:

(1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused; and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

It is important to carefully scrutinize the evidence of the complainant regarding the charge of theft faced by the appellant.

The complainant was unable to prove the amount of money that she claims she lost. It was critically important, in view of the explanation given by the appellant, that the amount be proved. The period during which the theft occurred must have been proved to coincide with the period during which the appellant became “rich”. There was no proof that these periods coincided.

Her claim that she built her house long before the theft remained unchallenged.

The appellant stated that she had been given a total of US$7,000 by the complainant's husband. She claimed this was the source of her sudden show of opulence. It was incumbent to show, by evidence, that this explanation was not only improbable, but, in all respects, false. The falsity of her explanation, given her known income at the time, would have gone a long way towards giving a lie to her whole evidence thereby creating an only reasonable inference that she, and only she, stole the complainant's money.

The complainant's husband confirmed the appellant's evidence that there were other maids who worked for the complainant during the same period the money was lost. There was no proof that, unlike the appellant, they did not enjoy access into the main bedroom where the money was kept.

Her evidence, that there were other maids who were employed at the same time with her, and even after she left the complainant's employ, stick out like a sore thumb.

The State did not exclude the possibility raised by this fact of other possible suspects having had the same opportunity as the appellant to access the complainant's savings.

In any event, her explanation of the resources suddenly available to her were not seriously challenged.

As conceded by the State, her explanations to how she acquired the assets found at her residence could not be said to be reasonably beyond all probability untrue. In fact, it was reasonably possibly true. In that event, the court was not entitled to reject it as false or improbable, let alone convict her of theft.

What I am required to determine is whether there is any possibility that any reasonable court could draw the inferences which the prosecution sought to be drawn from the facts that I have just outlined.

It seems to me that no reasonable person could possibly draw inferences of any kind, or any relevant kind, from the evidence I have referred to and it seems to me to be beyond a shadow of doubt that one can only speculate. The learned trial magistrate fell into error when he concluded that the circumstantial evidence adduced led irresistibly to the conclusion that the appellant was guilty of theft of US$24,000.

In light of the above observations, I respectfully find that there was no proof beyond a reasonable doubt.

I am unable to conclude that the facts proved at trial are consistent only with the guilt of the appellant and no-one else and inconsistent with her innocence. The fact that the appellant bragged about being rich, or that she had acquired substantial assets, or built a three-roomed house in the rural areas could only lead to very strong basis for the suspicion that she stole the complainant's money. To hold her liable for the theft could only be based on such speculation and conjecture as revealed in the trial - nothing more. The conviction is totally unsafe as there are other inferences which could reasonably be drawn from the same facts besides that the appellant stole US$24,000.

She said she sold a piece of diamond. This was not rebutted. It was not an impossibility for her, at the time, to achieve such wealth this way at the time.

In the result, therefore, the appellant's conviction for theft is quashed and her sentence is set aside.

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE
Ruled By: HUNGWE J and BERE J

The appellant was convicted of theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] involving US$30,178. He was sentenced to 5 years of which 3 years imprisonment were suspended on condition he made restitution in that sum before 30 December 2013.

He appealed to this court against both conviction and sentence.

After hearing counsel we allowed the appeal and indicated that our reasons for that decision will follow. These are they.

The brief facts upon which the learned trial magistrate found the appellant guilty of theft of cash may be stated as follows:

The appellant was the local co-ordinator of Cordaid, a non-governmental organisation with provincial offices in Mutare for its Manicaland operations. On 8November 2012, one Ian Nyamande and the appellant carried out a cash count. There was US$30,178 on hand. That sum was left in the appellant's custody as his co-administrator, Ian Nyamande, was proceeding on time off that weekend. The safe, inside which the money was placed, has a double lock system which would require that they both operated it to lock or unlock. Ian Nyamande did not lock it since he was proceeding on time off leaving the task to the appellant.

On 11 November 2012, the appellant unlocked the safe using his key and stole cash in the sum stated above.

In his grounds of appeal, the appellant states that the learned trial magistrate erred in convicting the appellant on the basis of circumstantial evidence when more than one reasonable inference could be drawn from the proven facts.

He also states that the learned trial magistrate erred in relying wholly on the evidence of Ian Nyamande without treating it with caution as he is a possible accomplice to the commission of the crime.

These two grounds of appeal, in our view, sufficiently cast doubt on the soundness of the conviction by the court a quo.

I will demonstrate.

The appellant, in his defence, pointed out that Ian Nyamande had the keys to the safe and had locked the safe prior to him proceeding on his days off. He had discovered the theft on the following Monday and reported it to the police. He also pointed out that the office inside which the safe was located could be accessed by several other people besides himself and Ian Nyamande. Insiders, as well as outsiders, could have perpetrated this offence.

The learned trial magistrate, in his reasons for judgment, emphasized the apparent contradictions in the appellant's testimony regarding whether the appellant had his key to the safe at the relevant time. He noted that the appellant had suggested that he had lost his key after 8 November 2012. The learned trial magistrate also relied on the evidence of Phyllis Mandizvidza, that, upon entering the office on Monday 12 November 2012, she noticed that the safe door was open. In her words, “it was the most visible thing.” Therefore, the magistrate reasoned, the appellant delayed reporting the theft because he had stolen the money - yet, Addlight Mukubvu says she did not notice anything unusual upon her entry into the office on Monday morning.

There was no attempt to reconcile these two ladies evidence on this point yet the magistrate used it to make an adverse finding of credibility against the appellant.

If Addlight Mukubvu did not notice anything unusual on Monday morning, no inference ought to have been made against the appellant on his failure to notice the break-in timeously as the magistrate did.

He also placed reliance on the supposed malfunction of the door to the office which was not closing properly as noticed by the witnesses on the day prior to Monday 12 November.

There was no evidence as to the general security of this particular office so as to exclude the possibility of an outsider having broken into the office then into the safe. That the appellant had the key to the safe, and, therefore, custody of the money, is not the only reasonable inference which could be made on the facts before the court.

It appears that the magistrate placed emphasis on the fact that Ian Nyamande made a call from South Africa regarding his absence at work on Monday therefore he was in South Africa at the time the theft occurred. I note that there was no acceptable evidence that indeed Ian Nyamande was in South Africa when he made that call. The magistrate erred in concluding that Nyamande was not in Mutare when the theft occurred. He relied on Nyamande's say so to arrive at the conclusion. He therefore concluded that it was the appellant who had stolen the money as he was the custodian of this money.

The record demonstrates, beyond doubt, that there are several possible inferences as to when the money could have been stolen.

At record p8, it is recorded that, after counting the money, Ian Nyamande placed it back into the safe and locked it. Ian Nyamande says he had not locked it because the appellant needed to access the safe during his absence. So he left it up to the appellant to lock using his key only.

But, could it not be possible that Ian Nyamande did not lock it for another reason?

The record shows that he had reason to visit the office alone in order to place some US$900 inside the appellant's drawer for the appellant's use. What this shows is that he also had access to the safe before 12 November 2012 when he was supposedly off-duty. The other ladies came to the office between Saturday and Sunday for different reasons. Ian Nyamande was required to lock the safe in terms of the established procedure. He did not do so. Nyamande's leave forms permitted his absence from duty only on Friday; so, on Monday, he was expected to be in the office. That being so, there is no reason why he had to make the US$900 accessible by the appellant by visiting the office alone on Friday after work.

I wish to point out that the appellant correctly states that the State case against the appellant rested on circumstantial evidence.

I would however wish to point out that even in the most straightforward of cases, one must ultimately nevertheless draw inferences. As an example, where X fired his gun which hits and kills D, it is the only fair and reasonable inference to conclude that the bullet fired by X hit and killed D since it is not possible to see it travel its line of trajectory and hit D with fatal consequences. ZEFFERT and PAIZES explain that:-

“All evidence requires the trier of fact to engage in inferential reasoning.” See The South African Law of Evidence…,.

Some evidence requires fewer inferences, this would be traditionally so-called direct evidence, whereas other evidence, traditionally circumstantial evidence, will require more inferences. The point must be observed that the court is never free of drawing inferences and therefore the rules that govern the drawing of inferences govern the court in its ultimate evaluation of all evidence. The question ultimately becomes: how is a court to evaluate the evidence?

The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either type of evidence may be enough to establish guilt beyond a reasonable doubt, depending on the facts of the case.

Because circumstantial evidence requires the drawing of inferences, it is incumbent for this court to restate the process involved in analyzing that evidence and what a court must do before returning a verdict of guilty based solely on circumstantial evidence.

(a) Initially, the court must decide, on the basis of all of the evidence, what facts, if any, have been proven. Any facts upon which an inference of guilt can be drawn must be proven beyond a reasonable doubt.

(b) After the court has determined what facts, if any, have been proven beyond a reasonable doubt, then it must decide what inferences, if any, can be drawn from those facts. Before they may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts; it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them.

Again, it must appear that the inference of guilt of the accused is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes, beyond a reasonable doubt, every reasonable hypothesis of innocence. If there is a reasonable hypothesis, from the proven facts, consistent with the accused's innocence, then, the court must find the accused not guilty.

If the only reasonable inference the court finds is that the accused is guilty of a charged crime, and that inference is established beyond reasonable doubt, then the court must find the accused guilty of that crime.

S v Marange & Others 1991 (2) ZLR 244 (S)…,.: Teper v R (1952) AC 480 489; S v Shonhiwa 1987 (1) ZLR 215 (S)…,.; R v Harry (1952) NZLR 111; McGreevy v Director of Public Prosecutions (1973) 1 ALL ER 503 (HL); Shepherd v The Queen (1990) 170 CLR 573…,.

The court must always bear in mind that the standard of proof in a criminal case is “beyond a reasonable doubt.”

If a piece of evidence cannot measure up to this standard, then the court will discard it; if it does, the court will rely upon it. Thus, the so-called “cardinal rules of logic” are an exhortation to always bear in mind the rationale behind evidence.

The “cardinal rules of logic” in S v Blom 1939 AD 188…, represent the law on the drawing of inferences in criminal trials. They state that (to paraphrase):

1. The inference sought to be drawn must be consistent with the proved facts.

2. The proved facts must exclude all other inferences except the one sought to be drawn.

In attempting to refine this “cardinal rule of logic” I suggested as follows in Wilson Muyanga v S HH79-13 (unreported):

“The law regarding circumstantial evidence is well-settled. When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no-one else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. See S v Shoniwa 1987 (1) 215 (SC) and the cases therein cited.”

The courts are clear that in the drawing of inferences they must take into account the totality of the evidence, and must not consider evidence on a piecemeal basis. S v De Villiers 1944 AD 493; S v Reddy 1996 (2) SACR 1 (A); R v Mtembu 1950 SA 670 (A).

It seems to me that the possibility that someone else besides the appellant stole the cash from the safe was not reasonably and fairly excluded by the evidence placed on record.

Besides the appellant, the main State witness had the opportunity to steal the money just as the appellant had.

The possibility of an intruder was similarly not excluded by the evidence.

A more thorough and exhaustive investigation might have excluded both the appellant as well as Ian Nyamande and the ladies. It did not. In other words, the evidence does not unerringly point exclusively to the appellant as the culprit in the theft of the money subject of the charge. As such, the conviction cannot be said to be safe as the evidence has not gone past the accepted threshold of proof beyond a reasonable doubt.

It was for these reasons that we allowed the appeal and quashed the conviction and set aside the sentence imposed by the court a quo.

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

The applicants apply for bail pending appeal against both conviction and sentence.

The applicants were convicted of “murder with constructive intention” as defined in section 47(1)(b) of the Criminal Law Codification and Reform Act [Chapter 9:23] by MWAYERA J sitting with Assessors on 31 May 2017 in the High Court, Harare.

The conviction of the appellants followed a trial which commenced in 2012. The learned judge, in her judgment, decried the delay in the finalisation of the trial which was caused by a variety of reasons which included difficulties of finding the accused persons each time a date was set as they were on bail and the trial would be postponed sine die now and then. The judge, for her part, was not readily available as she had been re-assigned from the criminal division to another division of the court.

I have deliberately alluded to the question of the delayed finalization of the trial in order to keep in mind that during the five (5) years that the trial would slowly grind to its finalisation, the applicants were out of custody and none of them absconded the court's jurisdiction.

The brief facts of the matter were that the applicants, including another who passed on during the course of the trial, unlawfully assaulted the deceased, Aleck Bongo Loore, and arrested him on allegations of having committed a robbery at Impala Downs Farm. The applicants were one or more or all of them employees at the said farm. The accused were investigating the robbery and seeking to arrest the perpetrators as well as recovering proceeds of the robbery. The accused persons held the deceased captive from the night of 23 March 2009 and surrendered the deceased to the police on the following day around 10:00am.

The learned judge, in a 12-paged typed judgment, believed State witnesses whose evidence corroborated each other that the deceased was subjected to a protracted and vicious assault by all the applicants using their booted feet, baton sticks, and switches. The applicants wore safety shoes and assaulted the deceased indiscriminately all over the body.

Applicant Number 4, Stanley Chitenda, was a member of the police special constabulary and he admitted to having assaulted the deceased under the feet.

The learned judge accepted the further evidence of State witnesses that the applicants, all other of them trampled on the deceased as he lay on the ground injured.

The learned judge acknowledged slight variations in the description of the nature of the assaults perpetrated by the applicants. The variations pertained to matters of detail which were immaterial.

The assault perpetrated on the deceased was serious. He was taken to the police station by the applicants in a vehicle and from there to the hospital. The deceased could hardly stand or walk on his own. The deceased's body was swollen, including his face, and he could hardly open his eyes. He could not talk. The deceased fell down on the floor in the charge office as he could not support himself.

There was a suggestion that the deceased hit against the pillar at the charge office.

Whether or not he in fact did so before falling to the floor would be immaterial because the deceased's inability to walk or stand on his own was on account of his condition which was not self-induced but a result of the assault perpetrated upon him by the applicants.

The deceased was pronounced dead on arrival at the hospital.

The evidence of the doctor corroborated the State witness evidence that force had been applied to the body of the deceased. The learned judge detailed the injuries found by the doctor upon the examination of the remains of the deceased. The injuries were observed, inter alia, on the neck. The neck was fractured. The doctor's evidence, as the learned judge observed, was not controverted. The learned judge dismissed the applicants' contentions that in the absence of an internal examination having been conducted, the doctor's evidence could not be given evidential value.

Indeed, where an assault results in a broken neck and the victim dies; what other conclusion can be reached other than that the assault resulted in the death of the victim?

There was no misdirection on the part of the learned judge in accepting the doctor's evidence as to what injuries the doctor observed and the doctor's conclusion as to the cause of the deceased's death.

The learned magistrate convicted the applicants on the basis of their having acted in common purpose.

The learned judge was not misdirected in articulating and applying the doctrine of common purpose and in convicting the applicants on the said basis. The applicants admitted engaging in the assault upon the deceased but minimized their degrees of participation and involvement.

The doctrine of common purpose seeks to deal with this very legal problem. It admits that in gang actions, each member cannot act in the same manner as the other one. The degrees of participation, in the absence of dissociation, are not material.

The learned judge correctly applied the doctrine of common purpose to the facts of the matter.

I have considered the applicants' grounds of appeal. The applicants seek to argue that they were acting under the influence of marijuana which affected their mental composure to such extent as to vitiate their ability to form an intention to commit the crime.

This issue was not advanced as a substantive defence by the accused.

The proof of voluntary intoxication is a burden imposed upon an accused who advances such defence as clearly set out in section 222 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The applicants failed to discharge the onus to prove voluntary intoxication leading to an inability to form the requisite intention for the commission of the offence. The learned judge made a finding that the applicants only sought to minimize their degrees of participation. This is inconsistent with the conduct of a person who cannot explain his conduct because of intoxication. This ground of appeal is ingenious but a red herring or spanner thrown in the works to confuse the clear factual scenario surrounding the commission of the offence by the applicants.

The applicants also argue that the trial court wrongly applied the doctrine of common purpose on the basis of “dolus eventualis” which is not part of our law.

Apart from the submission being hair splitting, the ground of appeal lacks merit in as much as the applicant's aver that the court a quo treated foresight as an inevitable yardstick of common purpose. The applicants further aver that the trial court failed to enquire at what point the applicants foresaw the possibility of the deceased dying and made a conscious decision to continue in the harmful activity.

The applicants clearly did not acquaint themselves with the provisions of sections 196A to 200 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] when formulating this ground of appeal.

The provisions of the said sections, read together, are clear that the doctrine of common purpose is very much part of our law and was correctly applied by the trial judge who was aided by decided cases in the superior court as quoted in her judgment.

The ground of appeal respecting an attack on the findings as to the cause of death has been dealt with. It lacks merit. The applicants viciously assaulted the deceased and the chain of causation was clearly established.

As against sentence, the applicants aver that given the trial court's verdict of murder predicated on constructive intent, the sentence of incarceration was not called for, or, if it was, then it was too long.

A reading of the reasons for sentence does not reveal any misdirection by the judge in assessing sentence. In the absence of a misdirection of a material nature, the Appeal Court will not interfere with the sentence since it is a settled principle of law that sentencing is pre-eminently a matter for the discretion of the trial court; see S v Maglas 2001 (1) SACR 469 (SCA); S v Pillay 1977 (4) SA 531 (A); S v Gono 2000 (2) ZLR 63 (SC).

In my judgment, there are no prospects of prospects of success against conviction or sentence in this case.

The applicants, in terms of the provisions of section 115(c)[2](b) of the Criminal Procedure and Evidence Act [Chapter 9:07] bear the onus to prove, on a balance of probabilities, that the interests of justice will be served by their admission to bail following their conviction.

The applicants perpetrated a vicious and prolonged assault upon the deceased whom they held hostage for more than 10 hours. Despite the deceased having suffered serious injury and helplessly lying on the ground, with the body and face swollen, and unable to talk, the applicants did nothing to assist him. They were intent on causing harm to the deceased. They used weapons and their booted feet. The injuries suffered by the deceased were serious and led to the deceased's death.

The trial judge justifiably found that the deceased had been subjected to torture and inhuman treatment. The applicants perpetrated a gang assault. The trial judge described the applicants as having engaged in “a rampage” in a merciless manner.

The trial judge treated the court's finding of murder with constructive intention as a mitigatory circumstance amongst other factors. She took into account the mitigating factors advanced on behalf of the applicants and balanced them against the aggravatory circumstances and exercised her discretion to pass what she considered an appropriate sentence taking into further account the delay of 8 years since the commission of the offence to the date of sentence.

In all the circumstances, I am not persuaded that the applicants have discharged the onus to prove, on a balance of probabilities, that the interests of justice will be served by their release on bail. Their prospects of success on appeal are virtually nil, and, in the result, I determine the application as follows:

That the application for bail pending appeal be and is hereby dismissed.

HH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE
Ruled By: MATHONSI J

This is an appeal against the decision of the Provincial Magistrate sitting at Harare delivered on 30 March 2012 in which he dismissed an application by the appellants for the suspension of their sentence of 12 months imprisonment or 420 hours of community service at institutions in Harare and Chinhoyi.

The appellants had approached the court a quo seeking that suspension pending an appeal which they noted to this court on 22 March 2012.

As stated, their application did not find favour with that court as a result of which they have approached this court as an Appeal Court….,.

Regarding the merits of the matter, the appellants have attacked the decision to dismiss their application on the grounds, inter alia, that the court a quo misdirected itself in dismissing the application without a finding that the appeal had no prospects of success at the Appellate Court.

It has been submitted, on behalf of the appellants, that the court a quo did not properly apply its mind to the application before it especially as it did not consider all the factors placed before it in that application including the prejudice likely to be visited upon the appellants if they perform community service before the appeal is determined given the obvious delays that occur.

On the other hand, the State is of the view that the appeal against both conviction and sentence is without merit, has no prospects of success whatsoever, and, for that reason, the appellants should be made to serve their sentences.

Counsel for the State relies on the authority of S v Kilpin 1978 RLR 282 (AD) where the Appeal Court pronounced…, as follows:

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the magistrate in the present case.”

In the present case, the application for a stay of sentence was made after the notice of appeal had been lodged and the court a quo had the benefit of that detailed appeal when considering the application. It also had the benefit of lengthy oral submissions made by both counsel. In fact, the submissions by counsel run into 10 pages of the transcribed record, from page 75 to 85.

It is therefore curious that the judgment of the court is spectacular by its brevity - it being only 16 lines of the record. It reads as follows:

“Right, listen to the ruling.

The court considered the submissions made by both counsels (sic), and, in applications of this nature, some of the factors to be considered are whether there are prospects of success on appeal and the likely delay before the appeal is heard.

The accused were convicted of contravening section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act. The evidence analysed in the judgment revealed that the key State witness was present in the room and narrated all that transpired and this was further corroborated by the accused themselves during their defence cases. It must be reiterated again that the accused were not found guilty of watching a video footage but that the video was just played to arouse feelings of hostility amongst those who attended as analyzed in the judgment and the reasons for sentence.

The accused were found guilty after the State proved its case beyond a reasonable doubt. The essential elements of the offence were satisfied as clearly shown by the evidence on record. Hence, this court did not misdirected (sic) itself in any way by arriving at the verdict of guilty.

The application for the suspension of performing community service is hereby dismissed.

So, that is the ruling.”

This is the entire judgment of the court a quo which is now being challenged on appeal.

It is difficult to understand how anyone can attempt to defend this judgment. While the magistrate made reference to matters to be considered in an application of the nature before him, he did not even attempt to deal with them. The magistrate busied himself with a narrative of how he arrived at the verdict and the sentence at the expense of the relevant considerations.

The appellants had raised essentially three (3) issues in their application, namely:

1. That they have prospects of success on appeal for a variety of reasons contained in their Notice of Appeal.

At the risk of commenting on issues still to be placed before the Appeal Court, I may hazard an example; being the contested issue of whether their conduct, be it “watching” or “playing” a video, constituted an offence as defined in section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). In my view, this is a critical issue which calls for interrogation by the Appellate Court.

2. That should they be made to commence performing community service they will suffer prejudice in the event that their appeal is successful as they would have served a substantial part of the sentence which may be overturned on appeal, and, yet, no prejudice will be suffered by the State if the sentence is suspended.

3. That there is no risk of abscondment given that they had piously complied with their bail conditions and attended court - even when they were facing more serious charges.

In my view, these are the issues which should have occupied the mind of the court a quo in considering the merits of the application. It did not. Instead, as stated by counsel for the appellants, the court pre-occupied itself with justifying its judgment.

This was a misdirection.

Indeed, there are no reasons for dismissing the application at all.

State counsel has conceded that the court a quo did not give reasons for dismissing the application, and, in a way, although with tounge in cheek, he does concede that the points raised by the appellants were not addressed at all. He has however asked me to reconsider the evidence which he says will persuade me to uphold the decision of the magistrate.

I had occasion, in the matter of S vNdlovu and Anor HB90-11…, to comment on the failure by a magistrate to give reasons for a decision. In that matter I stated, quoting S v Mapiye SC 214-88:

“It is therefore not easy to ignore the possibility that the magistrate did not apply her mind at all to the case before her. Courts have repeatedly stated the need for judgments to be reasoned and for those reasons to be stated. As stated in S vMapiye SC214-88:

'To confirm the conviction on the second count, would, in my view, result in a failure of justice. The omission to consider and to give reasons for convicting the appellant on Count Two is fatal to the prosecution case. It is a gross irregularity. Appeals are argued and decided on the contents of a certified record of the trial proceedings. If those contents are stored in the mind of the trial magistrate, they are not enough.'

It is a gross irregularity for a magistrate to omit to give reasons, which reasons remain stored in his/her mind without being committed to paper.”

The decision of the court a quo, to the extent that it dealt with extraneous issues and contains no reasons for the result is impeachable. I am of the view that the court a quo addressed the wrong issues.

Having gone through the record, I am satisfied that the appellants raise pertinent legal arguments especially relating to the legality or otherwise of their actions. Their appeal has merit and is indeed arguable. I am also of the view that the points raised in support of the application for a stay are very compelling indeed. Clearly, they will suffer prejudice if they serve the sentence which might be overturned.

On the other hand, there is absolutely no prejudice that will be suffered by the State by the suspension of the sentence. The appellants have been shown to be committed to the finalisation of the matter and cannot be said to be flight risks. Indeed, the State has not even attempted to argue along those lines.

I therefore come to the conclusion that the court a quo misdirected itself in dismissing the application which should have been granted.

In the result, I ordered that:

1. The appeal is hereby upheld.

2. The performance of community service by the appellants is hereby stayed/suspended pending the determination of the appeal in case number HCCA248/12.

HH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

Counsel for the appellant argued there is a sound basis for this court to interfere with the exercise of discretion by the lower court. Barros and Anor v Chimphonda 1999 (1) ZLR 58…,:

“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 discretion. If the primary court acts on a wrong principle, or if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant…, consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this is not imbued with the same broad discretion as was enjoyed by the trial court.”

Counsel for the appellant also cited RBZ v Granger and Anor SC34-01, where the apex court observed:

“Where a court makes a decision which is unreasonable; that constitutes a misdirection in the exercise of judicial function.”...,.

Counsel for the respondent argued, correctly, that this court must consider the misdirection(s) alleged and the appropriate remedy should this court find (a) misdirection(s) by the court a quo. She relied on S v Chikumbirike 1986 (2) ZLR 145;

“The Appeal Court will only interfere with the lower court's decision if it committed an irregularity or misdirection or exercise of discretion was so unreasonable as to vitiate the decision.”

See also S v Malundya 2003 (1) ZLR 275 (H); “The Appeal Court must not hear an appeal as if it is the court of first instance. The approach is whether the Court a quo misdirected himself or herself. It is the findings of the court a quo which must be attacked.”

See also S v Ruturi 2003 (1) ZLR 537.

To a certain extent, I agree with counsel for the respondent.

The misdirection must be located in the judgment of the court a quo but the Appeal Court is not confined to what the court stated in its ruling. An omission to take into account relevant factors could also constitute a misdirection.

CCC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule21(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”).FACTUAL BACKGROUNDAt ...

FACTUAL BACKGROUND

At the conclusion of his trial in the High Court, the applicant was convicted of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (“the Criminal Law Code”). The first respondent presided over the trial. The applicant was sentenced to eighteen years imprisonment. He is dissatisfied with the manner in which his case was investigated prior to the trial.

The facts of the case are as follows.

The applicant was the second-in-command of the security forces tasked with the duty of protecting Chiadzwa Diamond Mine. It is averred that on 23 September 2011 four brothers were arrested in one of the “diamond fields”. They were detained in an open wire enclosure under police and army guard while awaiting transportation to the court in Mutare.

At 22:00 hours of the same day one of the brothers (hereinafter referred to as “the deceased”) was found dead, lying face down in the enclosure. As a result, the Zimbabwe Republic Police, Marange Criminal Investigations Department, attended the sudden death scene. Investigations were carried out by the third respondent. The applicant said that the third respondent transported the body of the deceased to the Mutare Hospital mortuary for a post-mortem to be carried out to establish the cause of death.

It is the applicant's case that the Zimbabwe Republic Police sent the “sudden death docket” to the second respondent, who was the prosecutor in the criminal trial, instead of transmitting the same to the resident magistrate for assessment, purportedly in terms of the Inquests Act [Chapter 7:07] (“the Inquests Act”). It is contended that the second respondent, not being authorised to process a sudden death docket, violated the applicant's right to a fair trial. The applicant submits that his prosecution before the High Court was instituted on a defective charge because the inquest proceedings had not been conducted in a manner that complied with the Inquests Act.

The applicant further avers that during the trial the State was afforded the opportunity to lead evidence from thirteen witnesses - yet he was allowed to call only one witness.

It is against this background that the applicant alleges that sections 68(1) and 69(1) of the Constitution were violated.

Section 68(1) of the Constitution provides as follows:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Section 69(1) of the Constitution guarantees the right to a fair trial. The section provides:

“69 Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

It is on the basis of the alleged failures by the second, the third, and the fourth respondents to observe pre-trial procedures that the applicant is of the view that the aforementioned constitutional provisions were violated.

The application for an order for direct access was opposed by the second and the fourth respondents (“the respondents”).

The respondents raised a preliminary point, in their opposing affidavit, to the effect that the application was not properly before the Court, as the applicant's affidavit reveals only a narration of a myriad of administrative actions he is aggrieved with. It was further contended that the applicant does not demonstrate how his rights have been infringed.

On the merits, it was contended, by the respondents, that inquests are held only to establish the identity of the deceased and whether he or she died of natural causes or death was a result of an unlawful act perpetrated by another person. It was argued that the provisions of the Inquests Act were not relevant to the proceedings before the trial court. They averred that the alleged irregularities should have been raised with the Supreme Court when the appeal was heard.

Consequently, the respondents prayed that the application be dismissed....,.

The applicant in the intended application further seeks to impugn the admission of evidence by the trial court, particularly with regard to evidence given by witnesses and the fact that there was no murder weapon or a conclusive post-mortem result.

Du PLESSIS, PENFOLD and BRICKHILL in “Constitutional Litigation” (1edn Juta & Co (Pty) Ltd, Cape Town 2013) remarked as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter. For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt. The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the Supreme Court of Appeal.”…,.

The findings by the trial Judge, whether correct or not, do not result in the infringement of any constitutional rights of the applicant.

The Court, in Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S) put the matter beyond any doubt. It held…, that:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure, there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong.”…,.

If the applicant was aggrieved by the admission of, or refusal to admit, any evidence, as reflected by his founding affidavit, he ought to have articulated his grievances through the appeal procedure.

It has not been disputed by the applicant that the irregularities complained of were neither raised in nor dealt with by the Supreme Court.

Strangely, the applicant did not even make mention of the fact that the matter went on appeal to the Supreme Court (Joseph Chani v S SC43-17). It is only through the respondents' opposing papers that the Court was made aware of the fact that the matter was dismissed on appeal.

The fact that the applicant lost the non-constitutional case in the Supreme Court is fatal to the application. The Constitutional Court cannot inquire into the final decision of the Supreme Court.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

The law provides a clear remedy of an appeal where an applicant is not content with a decision of a lower court. An appeal procedure is a protection in itself. Competent relief on the irregularities alleged could have been granted by the Supreme Court. See Everjoy Meda v Maxwell Matsvimbo 2016 (2) ZLR 232 (CC)…,.

SC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

After hearing counsel in this matter we dismissed the appeal against both conviction and sentence. We indicated that our reasons would follow in due course. These are they.

The appellant was convicted of one count of murder and three counts of assault as defined in section 47(1)(b) and section 89 respectively of the Criminal Law Codification Act [Chapter 9:23].

He was sentenced to 18 years imprisonment in respect of the murder charge. The three counts of assault were treated as one for purposes of sentence and he was accordingly sentenced to 3 years imprisonment which was to run concurrently with the sentence on the murder conviction.

The appellant has noted an appeal against both convictions on all the counts and the sentences.

The events leading to the conviction of the appellant occurred on 23 September 2011. At the time, he was a duly attested member of the Zimbabwe Republic Police holding the rank of Chief Superintendent. He was based at Chiadzwa Diamond Fields where he was the second in command. The police had been deployed at the diamond fields to flush out and arrest suspected illegal diamond panners.

On the day in question, the deceased, Tsorosai Kusena, his brother Onesai Kusena, their cousin Pikirai Kusena and one John Gwite were arrested in the diamond fields by security personnel employed by Mbada Diamonds on suspicion of being illegal diamond panners. They were handed over to the police and detained.

A few hours later they escaped from custody and ran off in different directions. They were pursued and captured.

The appellant was one of the details involved in the pursuit.

Thereafter, the deceased and his companions were returned to the base where the appellant forced each of them to stand on the ground on their heads with their feet in the air. He then proceeded to assault each of them on the small of the back and the buttocks with a switch/baton stick. The assault was sustained and lasted for a considerable period.

After a while, the deceased was no longer in a position to assume the position and collapsed onto the ground. The appellant persisted with the assault on all the victims. Despite his condition and obvious difficulty, the deceased was not spared from this assault.

Sometime in the evening, Mandizvidza, one of the junior officers, took the switch/baton stick from the appellant stopping the assault. He threw the weapon into the fire.

After the assault had been halted, the deceased and the complainants were placed in cells and the deceased was heard to complain that he had been injured badly. He also expressed the fear that due to the injuries sustained from the assault he would not last.

After a short while he was seen to have died.

A post-mortem report, compiled by the pathologist, confirmed that the deceased had bruises all over the back. No other injuries were found. The cause of death was recorded as traumatic shock as a result of assault.

On these facts, the appellant was found guilty of murder with constructive intent.

The grounds of appeal are the following:

AD CONVICTION

(i) The court a quo erred in respect of all counts by failing to attach sufficient weight to the discrepancies that were manifest in the evidence of the State witnesses....,.

As to the first ground of appeal, it was contended, on behalf of the appellant, that the court a quo erred in failing to attach sufficient weight to the manifest discrepancies in the evidence of the witnesses called by the State. It was argued that the evidence of the witnesses, regarding the number of sticks used to assault the deceased and the complainants, was full of contradictions.

We were not persuaded by this submission.

Contrary to the contention by the appellant, the court a quo found that the witnesses all gave evidence that the appellant had used one stick in the assault, which, from the description, could be a thick stick or a baton. In its judgment, the court a quo commented that although quite a number of the witnesses had spoken of the appellant having a number of sticks in his possession, in their evidence the witnesses did not suggest that the appellant had used more than one stick. The court found that they had all maintained that he had assaulted the victims with one stick.

Indeed, this finding is borne out by the evidence of the witnesses.

Onesai Kusena, the complainant in the second Count, gave evidence that the appellant was holding five sticks. In describing the assault on him, he only mentioned one stick as being the assault weapon. He also stated that Mandizvidza disarmed the appellant of the stick he had been using. The appellant had then left with the remaining four sticks.

The complainant in Count 3, Pikirai Kusena, gave evidence to the effect that the appellant used a switch to assault all four of them including the deceased.

John Gwite was the complainant in the fourth Count. Like the other two witnesses, the tenor of his evidence was to the effect that the appellant had used one stick to assault all the victims.

Indeed, the police witnesses also corroborated the evidence of the complainants and confirmed that the appellant had used one stick to assault the victims.

Constable Senda Nkuli stated that the appellant had prepared three switches but he saw him using one. Constable Bhobho confirmed that the appellant had one stick which he took from the vehicle.

It was suggested to him that some witnesses mentioned more than one stick.

The witness was adamant that he had only seen the appellant holding one stick. This witness's evidence is consistent with that of Philleman Manatsa and Edson Mandizvidza. In fact, the last witness disarmed the appellant of the weapon and threw it into the fire.

In my view, the court a quo cannot be faulted in the manner that it considered the evidence of the witnesses on the weapon used to assault the victims. The court was correct in its finding that despite the mention by some witnesses of the appellant having several sticks, the consistent story from all the witnesses was that only one stick was used. All the witnesses stated that Mandizvidza threw the weapon into the fire.

Like the court below, I find no inconsistencies regarding the assault on the four victims.

View Appeal HH277-17 : FEATHERS MUKONDO vs THE STATE
Ruled By: HUNGWE J and MWAYERA J

The appellant was convicted of bribery as defined in section 170(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,. He appeals to this court against both conviction and sentence. In his notice and grounds of appeal the appellant advances five grounds of appeal; (i) In the first ground it is averred that the court a quo ...

The appellant was convicted of bribery as defined in section 170(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

He appeals to this court against both conviction and sentence. In his notice and grounds of appeal the appellant advances five grounds of appeal;

(i) In the first ground it is averred that the court a quo erred in ignoring the glaring inconsistencies in the State witnesses' evidence which created doubt in the State case.

(ii) In the second ground, it is claimed that the State failed to prove its case beyond a reasonable doubt.

(iii) The third ground bemoaned that failure to prove that there was no formal approval for a police trap which was employed to arrest the appellant.

(iv) The fourth ground criticised the alleged gross violations of police standing orders contained in the Standing Order Volume 1 Manual.

(v) The final ground was that the court a quo failed to consider that the appellant's case was highly probable and therefore showed that no offence was committed….,.

The first ground of appeal attacks the factual findings by the court a quo in respect of credibility.

In a well-reasoned judgment by the learned trial magistrate, the following findings of fact were made. The appellant was a police officer at Guruve Police Station.; the informant, Biggie Chipfunde, had a case pending at the local court; there was an exchange of money from Biggie Chipfunde to the appellant; the appellant denies that this was a bribe handed over at his behest in order to make the matter in which Biggie Chipfunde was a suspect at his police station go away; Biggie Chipfunde alleged that the payment was in response to persistent demands for a bribe by the police officer when he had been implicated in a criminal matter reported at the police station.

The magistrate preferred the evidence given by State witnesses to that given by the appellant as to the real purpose of the payment which was recovered in a police trap sting operation. There were minor inconsistencies which the magistrate ably dealt with and undoubtedly was aware of during trial. The police team details who set the trap in which previously recorded bank notes were given to the informant were subsequently recovered from the appellant upon his arrest were produced during the trial.

I am unable to fault these factual findings by the court a quo. In any event, the question to ask, on a full appreciation of the facts found proved, is whether, in their totality, the State has proved the essential elements which make up the offence of bribery as defined in the Criminal Law Code. That section provides:

“170 Bribery

(1) Any:-

(a) Agent who obtains or agrees to obtain or solicits or agrees to accept for himself or herself or any other person any gift or consideration as an inducement or reward:-

(i) For doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal's affairs or business; or

(ii) For showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal's affairs or business; knowing or realising that there is a real risk or possibility that such gift or consideration is not due to him or her in terms of any agreement or arrangement between himself or herself and his or her principal; or

(b) Person who, for himself or herself or any other person, gives or agrees to give or offers to an agent any gift or consideration as an inducement or reward:-

(i) For doing or omitting to do, or having done or omitted to do, any act in relation to his or her principal's affairs or business; or

(ii) For showing or not showing, or having shown or not shown, any favour or disfavour to any person or thing in relation to his or her principal's affairs or business; knowing or realising that there is a real risk or possibility that such gift or consideration is not due to the agent in terms of any agreement or arrangement between the agent and his or her principal; shall be guilty of bribery and liable to:-

A. A fine not exceeding level fourteen or not exceeding three times the value of any consideration obtained or given in the course of the crime, whichever is the greater; or

B. Imprisonment for a period not exceeding twenty years; or both.

(2) If it is proved, in any prosecution for bribery, that:-

(a) An agent has obtained, agreed to obtain or solicited any gift or consideration, whether for himself or herself or for another person; or

(b) Any person has given, agreed to give or offered any gift or consideration:-

(i) To an agent, whether for himself or herself or for another person; or

(ii) To any other person, after agreeing with an agent to do so; it shall be presumed, unless the contrary is proved, that he or she did so in contravention of this section.

[Section amended by section 31 of Act 9 of 2006].”

The first ground fails for the above reasons….,.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provision of section 170 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This the magistrate correctly found he failed to do.

In the event the appeal against conviction fails.

CCC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution.

The applicant had to show that it is in the interests of justice for an order for direct access to be granted.

FACTUAL BACKGROUND

The applicant was employed by the Zimbabwe Republic Police as the Officer-In-Charge of Guruve Criminal Investigation Department.

On 24 October 2014 he was arraigned before the Magistrate's Court facing a charge of bribery, as defined in section 170(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was the respondent's case that on 3 April 2014 the applicant unlawfully and intentionally received $200 from one Biggie Chipfunde in order to influence investigations in a criminal case involving the latter as an accused. The criminal case was pending before the Magistrates Court.

The applicant denied the charge of bribery. He said that he received the money from Biggie Chipfunde, genuinely believing that it was a donation to a fundraising campaign.

After a full trial, the applicant was convicted of bribery. He was sentenced to twelve months' imprisonment, of which four months were suspended for a period of five years on conditions of good behaviour.

The applicant noted an appeal to the High Court against the conviction and sentence. The grounds of appeal against conviction were that the trial magistrate ignored glaring inconsistencies in the evidence of the respondent's witnesses; that the respondent failed to prove its case beyond a reasonable doubt; and that the authority to organise entrapment had not been properly obtained.

The ground of appeal against sentence was that a non-custodial sentence was more appropriate given the circumstances of the case.

The High Court upheld the conviction. The appeal against sentence was also dismissed by the High Court.

The applicant noted an appeal to the court a quo against the judgment of the High Court. The court a quo found that the appellant's grounds of appeal, against conviction, did not emanate from the High Court's ratio decidendi. It held that no proper grounds of appeal had been placed before it. The court a quo also upheld the sentence, after finding no misdirection on the part of the High Court. The appeal was dismissed in its entirety.

It is against this background that the applicant filed the application for leave for direct access to the Constitutional Court. He alleged that the court a quo breached his fundamental right to a fair trial.

The contention was that the proceedings in the Magistrates Court were tainted with gross irregularities which resulted in a substantial miscarriage of justice. He alleged that the trial magistrate “deliberately ignored analysing and evaluating the defence case and its documentary exhibits which rebutted all essential averments in the State case.”

The applicant further alleged that the subsequent upholding of the trial magistrate's decision, by the High Court, was irregular, as that court relied on section 170(2) of the Criminal Law (Codification and Reform) Act (the Criminal Law Code) as the basis for dismissing the appeal when the trial magistrate did not rely on the provision in question to convict him.

He alleged that section 170(2) of the Criminal Law (Codification and Reform) Act (Criminal Law Code) is invalid. He argued that the section is an unconstitutional provision which casts a reverse onus on the applicant to prove his innocence, thereby breaching section 70(1)(a) of the Constitution which guarantees an accused person the right to be presumed innocent until proven guilty.

Lastly, the applicant averred that the court a quo omitted to exercise its review powers provided for under section 25(2) of the Supreme Court Act [Chapter 7:13]. He contended that failure to exercise the powers provided for by law was an infringement of his right to have the case reviewed by a higher court, guaranteed under section 70(5)(a) of the Constitution.

The applicant averred that granting leave for direct access to the Constitutional Court would be in the interests of justice as it would vindicate his right to a fair trial guaranteed under section 69(1) of the Constitution.

The application was opposed by the respondent.

Counsel for the respondent submitted that the court a quo properly evaluated the evidence adduced by the State and concluded that the High Court had reached the correct decision in dismissing the appeal against conviction and sentence. The applicant was not happy with the manner in which the evidence was assessed by the court a quo. That does not mean that the decision of the court a quo is in violation of the applicant's fundamental rights.

DETERMINATION OF THE ISSUES

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT LEAVE FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT BE GRANTED

The jurisdiction of the Constitutional Court is provided for under section 167(1) of the Constitution.

The Constitutional Court is the highest court in all constitutional matters. It decides only constitutional matters and issues connected with decisions on constitutional matters. The Constitutional Court has the power to make the final decision on the question whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Direct access is an extraordinary procedure which is granted only in deserving cases and has been sparingly granted. Before a party can be granted leave to approach the Constitutional Court directly, in terms of section 85(1)(a) of the Constitution, he or she or it has to satisfy all the requirements set out in Rule 21(3) of the Constitutional Court Rules. The requirements are as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

It is peremptory for an applicant to set out facts or grounds in the founding affidavit, the consideration of which would lead to the conclusion that it is in the interests of justice to have the matter placed before the Constitutional Court directly.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18, the Court had occasion to deal with the requirements to be satisfied in an application of this nature. It held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied.

The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

Where the jurisdiction of the Constitutional Court is sought to be invoked on the allegation that the decision of a subordinate court, on a non-constitutional matter, violated a fundamental human right, the applicant must show that the violation was a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary decision.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18 the Court held as follows…,:

“The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.”

What amounts to a constitutional matter is defined in section 332 of the Constitution as meaning a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

In Moyo v Sergeant Chacha and Ors CC19-17, the Court explained the import of section 332 of the Constitution in the following words…,:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”…,.

The mere allegation that a fundamental human right enshrined in Chapter 4 of the Constitution has been infringed does not mean that a constitutional issue has arisen from a decision of a subordinate court.

A decision of a subordinate court, on any matter within the ambit of its jurisdiction, would not be found to have given rise to a constitutional matter on the basis of a founding affidavit complaining about an alleged incorrectness of the decision of the subordinate court.

The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution.

A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, was violated.

In General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23 it was held as follows…,:

“The apparently incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue. This is because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.”

Du PLESSIS, PENFOLD and BRICKHILL, Constitutional Litigation, 1edn, Juta & Co Ltd, Cape Town, 2013 state as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter.

For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt.

The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter', or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the [Supreme Court of Appeal].'”…,.

No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court.

The Constitutional Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues. The remedy of an appeal is available to a litigant who is dissatisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal.

This is a clear remedy which was available to the applicant.

In defining his appeal before the court a quo, the applicant raised five grounds against the conviction and one ground against the sentence.

The judgment of the court a quo shows that three of the grounds of appeal against conviction were abandoned. The abandoned grounds attacked the correctness of the High Court's decision on the allegation that proof beyond a reasonable doubt had not been led by the respondent. The abandoned grounds of appeal also raised the issue regarding the lawfulness of the entrapment authority.

At the hearing of the application, the applicant sought to argue that the court a quo should have detailed the reasons why he abandoned some of the grounds of appeal. The allegation was that the grounds were not voluntarily abandoned by his legal practitioner.

The legal practitioner acted in the interests of his client.

Having abandoned some of the grounds of appeal, the applicant could not seek to revive those grounds of appeal in an application to the Constitutional Court, alleging that there are irregularities which amounted to a substantial miscarriage of justice.

Once a party abandons some of the grounds of appeal, he or she or it cannot seek to attack the Appeal Court for accepting the abandonment.

On the basis of the grounds of appeal that remained, the court a quo made a finding that the applicant was properly convicted on the basis of the evidence that was led in the Magistrate's Court. The court a quo held that the High Court upheld the conviction of the applicant for the offence charged on the basis of the assessment of the evidence which was adduced in the Magistrates Court.

This is contrary to the applicant's averment that the High Court relied on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9;23] (the Criminal Law Code) as a yardstick to validate his conviction.

In Mukondo v The State HH277-17…, the High Court said:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande 1983 (1) ZLR 302.

There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above.”

It is apparent that the ratio decidendi applied by the High Court, in dismissing the appeal, was that there was sufficient direct evidence adduced by the prosecution to prove the guilt of the applicant beyond reasonable doubt. Reference to section 170(2) of the Criminal Law (Codification and Reform) Act is not evidence of the factors which the court took into account and which influenced its mind in making the determination it made. Reference to section 170(2) of the Criminal Law Code was made after the court had reached the conclusion, based on the analysis of the evidence adduced by the State, that the applicant had been properly convicted of the offence of bribery, as the evidence had proved his guilt beyond reasonable doubt.

The court a quo was also alive to the issue of the effect of the reference by the High Court to section 170(2) of the Criminal Law (Codification and Reform) Act.

The court a quo noted that the High Court commented on section 170(2) of the Criminal Law Code. The court a quo found that the issue regarding the section in question was a red herring because the conviction was not predicated on that provision.

At p5 of the cyclostyled judgment in Mukondo v The State SC44-19 the court a quo said:

“It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2). Finally, and more importantly, the remarks by the court a quo, on section 170(2), were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him.

Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an obiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law.”

The Constitutional Court does not interfere with non-constitutional findings of the lower courts, which findings are arrived at after a careful assessment of the evidence as a whole.

Even if it is assumed that the court a quo erred in the assessment of the evidence before it, that would not amount to a violation of the right to a fair trial. The Constitution could not possibly have sought to protect litigants against 'wrong decisions'.

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the Constitutional Court of South Africa held…,:

“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair justice']. The Constitution does not, and could hardly, ensure that litigants are protected against wrong decisions. On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.”

In Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S)…, the Supreme Court, sitting as a Constitutional Court, said:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment.

It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision.

Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong. See Maharaj v AG of Trinidad & Tobago (No.2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205I–206B.”

A reading of the judgment of the court a quo shows that it did not make any determination on a constitutional issue.

The court a quo held that the constitutional question which the applicant purportedly intended to raise in his grounds of appeal had no basis. The reason was that the High Court had not confirmed the applicant's conviction on the basis of section 170(2) of the Criminal Law (Codification and Reform) Act. The court a quo also noted that the constitutionality of section 170(2) of the Criminal Law Code was not an issue before the trial court. Neither had the presumption of a contravention of section 170(2) of the Criminal Law Code, upon proof by the State of the fact of obtaining, accepting or soliciting a gift or consideration, been relied upon in convicting the applicant.

Counsel for the applicant conceded, in the court a quo, that the provision had not been relied on.

The court a quo correctly held that there was no basis for seeking to raise, as a question of any relevance in the hearing and determination of the appeal against the decision of the High Court, the applicability of the provisions of section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9;23].

A perusal of the papers before the Constitutional Court shows that the applicant is basically dis-satisfied with the manner in which the evidence was assessed and evaluated by the trial court. He is further dissatisfied by the fact that the court a quo did not set aside the conviction and sentence on account of alleged irregularities.

The Court finds the application for an order for direct access to be a disguised appeal against the decision of the court a quo which upheld the conviction and the sentence. This can be gleaned from the applicant's founding affidavit, where he states that:

“…, if leave for direct access is granted, I seek for a relief to set aside the proceedings conducted under case number B1361/14, and the subsequent upholding of the foregoing proceedings under case numbers HH935/14 and SC820/17 as being inconsistent with the right to a fair trial guaranteed under section 69(1) of the Constitution of Zimbabwe.

I further pray for remittal of the case for trial de novo to Guruve Magistrate Court before a different magistrate.”

The relief sought is the same as the relief that was sought on appeal to the Supreme Court.

In Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC)…, the Constitutional Court said:

“…, while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated.

He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment…,.'”

The applicant is seeking to appeal against the dismissal of the appeal by the Supreme Court.

DISPOSITION

The application is hereby dismissed with no order as to costs.

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that in passing sentence his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realized and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Constitutional Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following…, in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Constitutional Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] re-affirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

The appellant in this matter was convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Provincial Magistrate sitting in Bulawayo.

He was sentenced to 48 months imprisonment with 12 months imprisonment suspended on the usual conditions.

Dissatisfied with both conviction and sentence he then approached this court.

At the hearing of the appeal, we dismissed the appeal against conviction and allowed the appeal against sentence with reasons to follow. Here are they:

In the Notice of Appeal, which I will not reproduce herein, the appellant is not satisfied with the manner with which the court a quo treated the evidence of the witnesses.

The appellant avers that the evidence of Absolom Hlupho was inadmissible as against the appellant as it was accomplice evidence. That the court a quo erred in finding that the warrant of liberation was fake and that the court a quo erred in finding that the cellphone call history was admissible. Also, that the learned magistrate erred in accepting Lilian Tapera's evidence and in finding that it had been adequately corroborated.

On the sentence, the appellant is of the view that the sentence imposed by the learned magistrate is unduly harsh and excessive.

The facts of this matter, in a nutshell, are that the appellant, a legal practitioner by profession, with the assistance of Absolom Hlupho, a prison officer, sought to cause the release of a convicted and serving prisoner through a misrepresentation that the prisoner had been granted bail pending an appeal and a warrant had thus been issued for his liberation.

The State case hinged on the evidence of Lilian Tapera, the sister to the serving prisoner whose release it is alleged the appellant sought to clandestinely secure.

She gave the court a detailed account of what transpired and how she paid the appellant $1,500 for his services.

The court rightfully found her as a credible witness, in our view, for there are no pointers to lack of credibility in her evidence.

As for Absolom Hlupo's evidence, this court does not find any issues with it.

Absolom Hlupo expressly told the court that he realized that lies would not take him anywhere and he decided, midway through his cross-examination, to tell the court the truth. He confirmed that the warrant of liberation came from the appellant.

The findings of the trial court, with regard to these witnesses' testimony, cannot be faulted.

On the authenticity or otherwise of the warrant of liberation, the evidence of Lungile Moyo and that of Freedom Potera, the clerk of the Regional Court, amply covered that point to the satisfaction of the court.

On the constitutionality or otherwise of the cellphone history which the appellant decided not to respond to on the merits, we find that there is absolutely no basis for the challenge being proffered, for, the right to privacy enshrined in the Constitution, is not absolute.

As correctly held in the case of Tendai Biti v Chief Superintendent Majuta HH156-11 BHUNU J held that where the police have reasonable cause to investigate crime the subject's rights to privacy must, of necessity, give way to common good and public interest to fight crime.

There is therefore absolutely nothing wrong with the production and the acceptance of the cell phone history by the trial court.

Lilian Tapera could not be held to be an accomplice when in fact she told the court that she genuinely believed in the whole process that the appellant engaged in and she actually thought there was nothing amiss. On page 47 of the record she actually told the court that, as she waited for the processing of her brother's release papers at Khami, the appellant phoned her and advised her to quickly leave the place (Khami prison) - that she should run away.

She said she decided to wait there.

Surely, if she had been part of the clandestine plan to release her brother she could have fled at that juncture. Her decision to wait shows that she did not appreciate that there was a serious problem with the whole plan.

In the case of Chimbwanda v Chimbwanda SC28-02 it was held, by ZIYAMBI JA, as follows:

“It is trite 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 is that the trial court is in a better position to assess the witnesses from its vantage point of having seen and heard them….,.

The exception to this rule is where there has been a misdirection or a mistake of fact or where the basis upon which the court a quo reached its decision was wrong.”

We have found no misdirection in the manner with which the trial court dealt with the evidence before it.

We have already canvassed the evidential issues herein.

We found that in fact the evidence against the appellant was overwhelming and that the court a quo rightly convicted him....,.

(a) The conviction is confirmed.

View Appeal SC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.

In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.

The first three appellants were sentenced each to 20 years imprisonment.

The fourth appellant was sentenced to a fine of $500, or, in default, three months' imprisonment with a further three years imprisonment suspended on conditions.

The appeal is against the convictions and the sentences.

Background Facts

On 29 May 2011, a political party, “the MDC-T”, held a political gathering at a shopping center in one of the suburbs in Harare. The purpose of the gathering was to celebrate the party's T-shirt visibility programme.

A group of police officers, led by the deceased, was dispatched to disperse the gathering which was deemed illegal.

When ordered, by the police officers, to disperse, the group did not resist but pleaded with the police to first complete their food preparations, which included a barbecue, before they could disperse. The police agreed to this arrangement and left.

Reports later reached the police that the group had thereafter relocated to another shopping centre in the same suburb. The police, once again, led by the deceased, reacted and followed to the new location.

When the officers tried to disperse the gathering at the new location, they were met with stiff resistance. In the melee that ensued, the deceased was stoned by an unidentified assailant. He fell down onto the tarmac. He died as a result of a severe injury to his head which depressed his skull and caused damage to his brain.

On 12 March 2012, the appellants, and 25 others, were arraigned before the court a quo facing one count of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and, alternatively or concurrently, with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act.

After a protracted trial lasting over four years, the appellants were duly convicted and sentenced as detailed above.

The court a quo found that the first three appellants had, on 29 May 2011, unlawfully and with actual intent to kill, murdered the deceased by hitting him on the head with a brick, causing injuries from which he later died.

It found the fourth appellant guilty as an accessory after the fact to the crime of public violence, which it held to be subsumed in the crime of murder.

The fourth appellant had ferried the first two appellants from the scene of the crime in the vehicle he was driving.

In finding the first three appellants guilty of murder, the court was clear in its mind that the guilt of the accused persons hinged on whether or not the appellants participated in the commission of the crime, either directly or by association. In particular, it was its view that the case against the three appellants hinged on the applicability of the common law doctrine of common purpose, which it dealt with extensively, before convicting the appellants as detailed above.

The Appeal

As indicated above, the appellants were aggrieved by the convictions and sentences. In noting this appeal, they raised six grounds. I cite them here in full:

“1. The court a quo erred and seriously misdirected itself when it failed to properly apply the law and discharge the appellants as it was obliged to at the close of the State's case in terms of section 198(2) of the Criminal Procedure and Evidence Code, when no evidence justifying their placement on their defence had been led, and, in doing so, denied them a fair trial with the result that the conviction and sentence must be vacated.

2. The court a quo further erred and misdirected itself in finding the appellants guilty on the basis of the doctrine of common purpose, when, in law, the doctrine is no longer part of our law; the criminal law of Zimbabwe, having been codified in the Criminal Law Codification and Reform Code, which specifically outlaws Roman-Dutch Criminal Law.

3. The court a quo further erred and misdirected itself when it convicted the fourth appellant as an accessory after the fact to the crime of public violence when there is no actual perpetrator convicted of public violence.

4. The court a quo further erred and misdirected itself when it failed to find, as an extenuating circumstance, the fact that none of the appellants were shown to have directly participated in the melee that resulted in the deceased's death, thus reducing their moral blameworthiness.

5. Taking into account the full circumstances of the case, the court a quo's sentence of 20 years imprisonment induces a sense of shock in its excessiveness.

6. The court a quo erred and misdirected itself when it suspended a portion of the sentence on wide incompetent terms unrelated to the crime under which the appellant was convicted.”...,.

It is...,, common cause that the scene of the crime was a busy shopping centre where there was a beer outlet, a car wash, vendors, including some who were cooking meals for sale, a flea market, and other members of the public who were waiting to use public transport. This was a Sunday afternoon falling at the end of the month. The crowd at the scene of the crime was not homogenous. It was made up of these members of the public and members of the MDC-T who had relocated from the first venue of their celebrations....,.

The appellants were charged concurrently, or, in the alternative, with the crime of public violence. The crime is created by the provisions of section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which reads:

“(1) Any person, who, acting in concert with one or more other persons, forcibly and to a serious extent -

(a) Disturbs the peace, security or order of the public or any section of the public; or

(b) Invades the rights of other people; intending such disturbance or invasion or realizing that there is a real risk or possibility that such disturbance or invasion may occur, shall be guilty of public violence and liable to a fine…,.”

The crime of public violence, as re-enacted in the Criminal Law (Codification and Reform) Act (the Code) has similar essential elements as the common law crime: These consist of the unlawful and intentional commission by a number of persons, acting in concert, of acts of sufficiently serious dimensions which are intended to violently disturb the public peace or invade the rights of others.

The crowd need not have acted with pre-meditation.

The obstruction of the police from performing their duties, as happened in casu, has been accepted, at common law, as constituting the common crime of public violence: R v Cele 1958 (1) SA 144 (N). It constitutes the crime of public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act (the Code).

I therefore find, that, the melee between the police and members of the MDC-T, at the second venue of the celebrations, degenerated into acts of public violence by the crowd that included members of the MDC-T.

In view of the Defence Outlines filed in respect of each of the first three appellants, the point of disputation in this case is whether the appellants participated in the acts of public violence as alleged or at all.

Whilst it is largely unnecessary that I burden this judgment with an analysis of all the evidence that was adduced at the trial, I wish to comment, in general, that the evidence from all the State witnesses did not tell a seamless story.

There were too many loose ends.

The scene was riotous and was very mobile and very fast moving.

Whilst none of the witnesses could be expected to have had a helicopter view of the scene, however, even from their different viewpoints, the State evidence must have told the same consistent story, being the version that the State wished to rely on to found the criminal liability of the appellants.

Instead, not only was the evidence remarkably disjointed, it was contradictory in some respects.

An impeachment of one of the witnesses, by the State, would have had the effect of leaving only one story as the State's version of what occurred at the material times.

The evidence implicating the first and second appellants came from one Inspector Nyararai who knew them both before the date of the alleged crime. He was part of the officers, led by the deceased, dispatched to disperse the MDC-T members. He testified, that, upon their arrival at the scene, he observed the first and second appellants in the verandah of the bar chanting their party's slogans. It was his further testimony that the two did not leave the front part of the bar upon the arrival of the police, but, remained there chanting slogans and inciting the crowd to attack the police by chanting “Kill the frogs!” in apparent reference to the police.

The testimony of Inspector Nyararai, in this regard, is contradicted, firstly, by that of one Chikwira, who arrived at the scene before the police did. Chikwira, a member of the public, had gone to the bar to drink.

He testified, that, all members of the MDC-T went into the bar upon the arrival of the police. He was in the verandah drinking a beer.

His evidence, in this regard, was corroborated by the evidence of Mutsigwa, Mushaninga and Magutarima.

Mutsigwa, a police officer and driver of the police vehicle on the day in question, testified, that, upon the arrival of the police, all the people who were in the verandah of the bar fled.

Mushaninga, a member of the stick of police officers who went into the bar with the deceased, on the other hand, testified that there were no members of the MDC-T in the verandah when the police arrived.

Magutarima, another police officer, who went into the bar with Mushaninga, also testified, that, upon their arrival, all members of the MDC-T who were in the verandah went into the bar and only a few elderly people remained in the verandah. He and Mushaninga addressed this group and ordered them to disperse which they did.

I find the evidence of Inspector Nyararai unsafe to rely on in the circumstances.

He is the only witness who testified that there were members of the MDC-T in the verandah of the bar, including the first and second appellants, who were chanting slogans and urging the crowd to attack the police.

There is other State evidence that the confrontation between the police and the MDC-T members started at the back of the bar and it is there that one youth urged the others to attack the police by shouting “kill the frogs!” Before then, no one had urged the others to “kill the frogs.”

No effort was made by the State to tie these two versions together.

In the result, I find that there was no reliable evidence at the close of the State case upon which a court, acting carefully, would convict the first and second appellants of public violence.

Similarly, the evidence identifying the third appellant as being present at the scene on the day in question is unsafe.

It comes from Mushaninga.

He did not know the third appellant prior to the day of the crime. He testified that he saw the appellant for a brief moment inside the bar when the third appellant assaulted him with a stool frame.

Again, the same handicap that makes the evidence of Inspector Nyararai unsafe afflicts the evidence of Mushaninga in identifying the third appellant.

If one compares the evidence of Mushaninga to the other evidence led on behalf of the State, it appears that Mushaninga had poor observation skills on the day or poor recollection after the event. He did not see the people who were in the verandah when the police arrived - yet the others in his company did. This is where Chikwira, one of the State witnesses, was drinking his beer. He did not see any members of the public at the shopping centre - yet the other witnesses did.

He did not see any vendors at the shopping centre. The other witnesses did - and one of the vendors gave evidence as a State witness.

Before entering the bar, he did not recollect stopping to address the patrons who were drinking in the verandah of the bar. Magutarima testified that he and Mushaninga did.

Again, the respondent made no efforts to tie up these loose ends.

I therefore find, that, at the close of the State case, the evidence identifying the third appellant was manifestly unreliable.

The first to third appellants were entitled to a discharge on the public violence charge at the close of the State case.

In view of the findings that I make regarding the liability of the first and second appellants in this matter, the conviction of the fourth appellant naturally falls away.

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

The appellant was convicted on a charge of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21].

He appealed to this court against both conviction and sentence.

After hearing submissions from counsel for the parties we upheld his appeal and set aside his conviction and sentence. We indicated that our reasons for judgment would follow. These are they:

The appellant fell in love with the complainant who was then aged thirteen. He, early in the morning of 17 April 2006, invited her to his house where it is alleged he raped her. He was charged with rape, but, was convicted of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21]. He was convicted by a Regional Magistrate sitting at Harare Regional Magistrate's Court, who sentenced him to 36 months imprisonment of which 12 months were suspended on conditions of good behaviour.

The appellant appealed to this court against conviction and sentence. His appeal against conviction is based on irregularities and evidential deficit.

On irregularities, the appellant alleged that his trial was fast tracked to his prejudice and the State failed to produce the complainant's first statement to the police in which she denied having been raped by the appellant. Counsel for the appellant also challenges the medical report on the ground that it was produced without giving the appellant three days' notice as required by section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], and, without seeking his consent for its production without the requisite notice.

On evidential deficit, counsel for the appellant submitted, that, the trial court erred by relying on the evidence of the complainant who came to court with visible injuries, having been assaulted by her uncle for this case; that the complainant had freely and voluntarily made an initial statement to the police denying having been raped by the appellant. He submitted that the complaint was examined by a doctor four days later and the report does not state that the appellant is the one who had sexual intercourse with her. He also argued that there was no basis for the magistrate preferring the complainant's and her uncle's evidence to that of the appellant and his witness.

Irregularities

Counsel for the appellant raised two main grounds on which he alleged that there were irregularities in the appellant's trial before the court a quo:

(i) He submitted that the case was unduly fast-tracked; and

(ii) The Doctor's report on the complainant was improperly produced.

Counsel for the appellant submitted, that, the appellant was brought to court by the police and his case was heard on the same day.

This is not disputed by the respondent. It is, in fact, confirmed by the record of proceedings.

The issue is simply whether or not it is permissible to fast track trials in the Magistrate's Court in the manner the appellant's trial was conducted.

The fast-tracking of cases started in the early 1990's as a means of reducing the courts' backlog. It is not specifically provided for by that name in the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act). This however does not mean it is an unlawful procedure.

It is, in fact, a useful procedure, which, if well managed, helps to contain and/or reduce the courts' backlogs of criminal cases, and ensures the delivery of timeous justice. All that has to be done is to ensure that it is used in compliance with the provisions of the Criminal Procedure and Evidence Act and other laws which provide for a fair trial.

Section 163 of the Criminal Procedure and Evidence Act provides for the timing of an accused person's trial in the Magistrate's Court as follows:

“Any person to be prosecuted on a criminal charge in a magistrate's court shall be brought for trial at the next possible court day.”

This, in my view, means, when an accused person is arrested and is to be prosecuted in the Magistrate's Court, he shall be brought to trial on the next possible court date, which means on the day when the court will be sitting next after the decision to prosecute him in the Magistrates Court will have been made. This, however, does not mean the trial has to start on that day without fail. It is desirable that it should, but, regard should be had to the provisions of section 165 of the Criminal Procedure and Evidence Act which provides for postponements where necessary.

The provisions of section 163 of the Criminal Procedure and Evidence Act are, therefore, in general, consistent with the fast tracking of trials in the Magistrate's Court. The wording is such as can justify the trial of an accused person once he is brought before a magistrate.

JOHN REID ROWLAND in his book “Criminal Procedure in Zimbabwe” commenting on section 163 of the Criminal Procedure and Evidence Act said:

“This does not necessarily mean that his trial will take place on that date, it may very well be postponed. Undue haste in bringing a case to court may be prejudicial to the accused and thus constitute an irregularity.”

Undue haste can be due to the refusal of an accused person's request for a postponement to enable him to prepare for the trial or to engage the services of a legal practitioner. It can also be due to the trial proceeding without complying with the requirements of a fair trial.

In the absence of a valid request for the postponement of the pending trial, and if the trial complies with the requirements of a fair trial, a Magistrates Court can proceed with an accused person's trial on the “next possible court day” as provided by section 163 of the Criminal Procedure and Evidence Act.

In the present case, counsel for the appellant argued, that, the trial court should have asked the appellant, who was facing a serious charge of rape, whether or not he wanted to be legally represented, and if he had said he did, the case should have been postponed for that purpose. He argued that the fact that the appellant needed the services of a legal practitioner is confirmed by his engaging one on the following day - but when his trial had already been completed.

He submitted that the appellant's friend discovered that the appellant was being tried without legal representation, and arranged for it.

He also submitted, that, the appellant was not given three days' notice for the production of the Doctor's report, and that even though he consented to the production of the report he did so without having been advised that he was entitled to three days' notice of its production.

Every accused person is, ideally, entitled to legal representation at his trial.

This becomes more compelling if he is facing a serious charge for which, if convicted, he can be sentenced to a long term of imprisonment.

Generally, such legal representation would be at the accused's own expense. It is only in exceptional cases when a magistrate may be required to order legal representation through the Legal Aid system.

Judicial officers should, in appropriate cases, ask the accused person if he needs the services of a legal practitioner at his own expense. Justice can, however, still be done if the trial magistrate ensures that justice is done by making sure the trial complies with the statutory requirements for a fair trial.

This issue was dealt with by the Supreme Court in the case of S v Dube & Anor 1988 (2) ZLR 385 (SC)…, where DUMBUTSHENA CJ, without laying a hard and fast rule, said:

“In our view, judicial officers trying such cases should ask themselves three questions:

1. Where the accused has pleaded guilty, would it be appropriate, nonetheless, to enter a plea of not guilty in terms of the provisions of section 255A of the Criminal Procedure and Evidence Act?

2. Where the accused is unrepresented, would it be fair and appropriate to advise him of the complexities of the matter and enquire whether he has considered obtaining legal representation?

3. If satisfied that the accused should have legal representation but cannot afford it, should the court certify that he should have legal representation in terms of the provisions of section 3 of the Legal Assistance and Representation Act [Cap 66], as amended by section 2 of Act 21 of 1974.

We do not mean to suggest, far less to lay it down as a rule of practice, that magistrates should recommend legal aid in every case where a long sentence is possible. In most cases, a plea of guilty is quite clear and unequivocal, and the procedures laid down in section 255 will ensure a fair hearing. Equally, there will be many cases where a fair hearing can be ensured by using the procedure set out in section 255A and changing the plea to 'not guilty' so that questions of law and admissions of fact can be explored and clarified: see S v Nyamweda 1983 (1) ZLR 131 (SC); S v Malili & Anor 1988 (4) SA 620 (T).

Finally, there will be some cases where it will be enough for the magistrate to explain the complexities and enquire whether the accused does not want to engage legal representation at his own expense. This should be done at the earliest possible stage - ideally when the accused is first remanded.

It will thus only be in a minority of cases that the magistrate will conclude that there cannot be a fair trial without representation. In such cases his duty is to act in terms of Chapter 66 and recommend legal aid. Even then, of course, an accused person can waive his right to representation, provided, he does so on a properly informed basis.”

I am therefore satisfied that the magistrate's failure to ask the appellant if he needed the services of a legal practitioner is, on its own, not a sound ground for upsetting the appellant's conviction.

The commencement of the trial without affording the appellant a postponement for him to engage the services of a legal practitioner is also not an irregularity as the appellant had not asked for a postponement. He had infact come to court with his witness who testified. He was apparently ready for the trial.

If he had applied for a postponement, the magistrate would have erred if he had ignored the appellant's request and ordered the trial to proceed in spite of such a request as the request would have been made on the appellant's first appearance in court. A refusal could not have been justifiable in those circumstances.

The issue of substance, which was dwelt on towards the end of the appeal hearing, is the magistrate's failure to observe the requirements of section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Counsel for the appellant submitted, that, the appellant's trial was conducted with such haste that his right to three days notice before the production of the Doctor's report on the complainant's examination was not complied with.

Counsel for the respondent conceded, that, the appellant was not given three days' notice of the State's intention to produce the Doctor's report, and that his consent to its production without such notice was not sought.

It was also conceded, that, the law on the production of such documents was not explained to the appellant.

The concessions were properly made as the magistrate's omissions are apparent from the record of proceedings.

Section 278(11) of the Criminal Procedure and Evidence Act provides as follows:

“(11) An affidavit referred to in this section shall not be admissible unless the prosecutor or the accused, as the case may be, has received three days' notice of its intended production or consents to its production.”

In terms of section 278(11) of the Criminal Procedure and Evidence Act two things must happen for the affidavit to be admissible in evidence:

(i) The three days' notice should have been given; or

(ii) The appellant should have consented to its production without his having been given such notice.

The consent of an unrepresented accused person can only be valid if his right to such notice is explained to him before he is asked whether or not he consents to its production without the requisite three days' notice.

It is not enough to merely ask if he consents to the production of the Doctor's report as there is need for him to consent to its production in general, and to consent to its production without the statutorily required three days notice of its production.

If the affidavit is produced without the requisite notice or consent, it will not have been properly produced and cannot be used as evidence against the accused.

In this case, the Doctor's affidavit, on the examination of the complainant, was not properly produced. That evidence was not properly before the trial court.

Its use in convicting the appellant should therefore affect the regularity of the proceedings and the propriety of the conviction.

Its production without the requisite three days' notice, or his informed consent, is an example of the court proceeding with a trial with undue haste to the prejudice of the appellant.

This is an example of how fast track trials should not be conducted.

Counsel for the respondent submitted, that, in the circumstances, the appellant's conviction and sentence should be set aside and the case be referred back to the trial court for trial de novo. She submitted that this court could use its review powers in terms of section 35 of the High Court Act to do so.

Counsel for the appellant agreed with her.

Section 35 of the High Court Act [Chapter 7:06] provides as follows:

“When an appeal in a criminal case, other than an appeal against sentence only, has been noted to the High Court, the Attorney-General may, at any time before the hearing of the appeal, give notice to the registrar of the High Court that he does not, for the reasons stated by him, support the conviction, whereupon, a judge of the High Court, in chambers, may allow the appeal and quash the conviction without hearing argument from the parties or their legal representatives and without their appearing before him.”

The procedure provided by section 35 of the High Court Act is not applicable in this case as it refers to concessions made by the Attorney-General “before the hearing of the appeal”, and, such concessions are channeled through the Registrar for consideration by a judge in chambers.

When we brought this to the attention of counsel for the respondent and counsel for the appellant they both agreed that section 35 of the High Court Act was inapplicable and urged us to use our common law review powers.

While it is correct that this court has inherent jurisdiction and can use it to refer this case back to the trial court for trial de novo, section 41(d) and (h) as read with section 29(2)(b)(v) of the High Court Act gives this court supplementary powers to deal with a situation such as has arisen in this case.

Section 41(d) and (h) of the High Court Act provide as follows:

“For the purposes of this Part, the High Court may, if it thinks it necessary or expedient in the interests of justice —

(a)…,.;

(b)…,.;

(c)…,.;

(d) Having set aside the conviction, remit the case to the court or tribunal of first instance for further hearing, with such instructions as regards the taking of further evidence or otherwise as appears to it necessary;

(e)…,.;

(f)…,.;

(g)…,.;

(h) Exercise any of the powers of review conferred upon the High Court by section twenty-nine:

Provided, that, whenever the High Court receives further evidence or gives instructions for the taking of further evidence, it shall make such order as will secure an opportunity to the parties to the proceedings to examine every witness whose evidence is taken.”

Section 29(2)(b)(v) of the High Court Act provides as follows:

“(2) If, on a review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings —

(a)…,.;

(b) Are not in accordance with real and substantial justice, it may, subject to this section —

(i) Alter or quash the conviction; or

(ii) Reduce or set aside the sentence or any order of the inferior court or tribunal or substitute a different sentence from that imposed by the inferior court or tribunal:

Provided that —

(i)…,.;

(ii)…,.;

(a)…,.;

(b)…,.; or

(iii)…,.; or

(iv)…,; or

(v) Remit the case to the inferior court or tribunal with such instructions relative to the further proceedings to be had in the case as the High Court thinks fit; or…,.”

This court can therefore act either in terms of section 41(d) or (h) of the High Court Act if it finds it appropriate to refer the case back to the trial court.

This however depends on our findings on the appellant's grounds of appeal on evidential deficit.

It is, in my view, not proper to refer a case back to the trial court for trial de novo when the evidence led before the first trial was such as would not sustain a conviction. This would be tantamount to sending the appellant for another trial in circumstances where he should have been acquitted at the first trial.

Evidential Deficit

Counsel for the appellant's Heads of Arguments raises issues on the reliability of the complainant's uncle's evidence on his having seen the appellant and the complainant in the appellant's bedroom through a keyhole.

He, in submissions, argued, that, the trial court erred when it preferred his evidence to that of the appellant and his witness.

At p11 of the record, James Kwecha, the complainant's uncle, said he advised the police officer that he had seen the appellant and the complainant in the appellant's bedroom. They then ordered Chamunorwa Jenyu, the appellant's witness, who he said had shown them other rooms, to open the door. He told them he did not have keys to that room. James Kwecha then went to look for a screw driver he wanted to use to open the door. He said that is when the complainant sneaked out of the appellant's bedroom.

Chamunorwa Jenyu disputed James Kwecha's evidence when he testified for the appellant.

The complainant's uncle's evidence is not reliable on this aspect. He said he was with a police officer to whom he had reported that his brother's daughter was being abused in the appellant's bedroom. He had told the officer that he had seen the complainant and the appellant through a keyhole. He then went to look for a screw driver and the complainant sneaked out during that period.

This sounds untruthful, as, according to his evidence, he went to look for the screw driver implying that the police officer remained at the door.

If that was the case, how could the complainant have sneaked out in the presence of the police officer?

It is also inconceivable that a police officer would be so inefficient as to allow the complainant to sneak out of the appellant's bedroom when he had been called to witness that fact and arrest the appellant.

The State did not call the police officer leaving the appellant's word in contestation with James Kwecha's word.

The record reveals that James Kwecha could have had a motive to exaggerate against the appellant.

He, in his own evidence, said he also wanted to take a knobkerrie so that he could kill the appellant. He in fact admits attacking the appellant and wanting to assault the complainant and being restrained by the police. His aggression towards the appellant and the complainant strengthens the appellant's evidence that he was refusing to open his door because he was afraid of him and not because the complainant was in his bedroom.

The State's failure to call the police officer who came with James Kwecha to the appellant's house entitles the appellant to the benefit of the doubt, especially in view of the complainant having initially made a statement in which she denied having had sexual intercourse with the appellant.

The appellant's evidence that he had spoken to the complainant at the gate and had not taken her into his bedroom becomes probable.

It is for these reasons that we upheld the appellant's appeal and set aside his conviction and sentence.

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: CHIKOWERO J

Aggrieved by the Magistrates Court's refusal to admit him to bail pending trial, the appellant has sought that decision reversed.The appeal is made in terms of section 121(1) of the terms of the Criminal Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read with Rule 6(1) of the High ...

Aggrieved by the Magistrates Court's refusal to admit him to bail pending trial, the appellant has sought that decision reversed.

The appeal is made in terms of section 121(1) of the terms of the Criminal Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read with Rule 6(1) of the High Court of Zimbabwe Bail Rules, 1971.

THE BACKGROUND

The appellant, the Human Capital Director and Acting Town Clerk of the City of Harare, was brought before the Magistrates Court at Harare, a Designated Anti-Corruption Court, facing a charge of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”); alternatively, theft of trust property as defined in section 113(2)(b) of the Criminal Law (Codification and Reform) Act.

The appellant was employed as Capital Director by the City of Harare at the time of the alleged commission of the offence. The allegations are that on 30 October 2014 the appellant, working in collusion with other executive employees of the City of Harare, transferred US$130,000 from the traditional Beer Levy Account into his personal bank account.

Thereafter, he used US$119,000 to purchase a Land Cruiser Prado which he registered in his name; he pocketed the difference amounting to US$11,000, which he later refunded to his employer through deductions from his salary.

According to the Traditional Beer Act [Chapter 14:24], the traditional beer levy account is maintained by a local authority on behalf of the Minister of Local Government, Public Works and National Housing. It is an account kept separate from the local authority's general revenue accounts. Withdrawals from that account are, by statutory command, only permissible on Ministerial authority, and, only then, for the benefit of the residents of the local authority in the sense of funding the provision of sanitation, water, and health, among other essential services.

The alleged criminal conduct is that the appellant (in connivance with the other executive employees) abused his duty as a public officer by appropriating the US$130,000 without ministerial authority to the prejudice of the residents of the City of Harare. Alternatively, the simple allegation is that the appellant stole those trust funds.

The Magistrates Court gave two reasons for refusing to admit the appellant to bail;

(i) First, the appellant was likely to abscond.

(ii) Second, he was likely to interfere with investigations and witnesses.

THE GROUNDS OF APPEAL

Five (5) grounds were raised. I quote these verbatim:

“1. The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was likelihood that the appellant would abscond without applying her mind to, and considering, all the mandatory factors provided for in section 117(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The learned Magistrate misdirected herself and improperly exercised her discretion in finding that there was a likelihood that the appellant would interfere with evidence without applying her mind to, and considering, all the mandatory factors provided for in section 117(3)(c) of the Criminal Procedure and Evidence Act [Chapter 9:07].

3. The learned Magistrate misdirected herself in law in failing the find that the State had not discharged the onus of proving 'compelling reasons' for denial of bail within the contemplation of section 50(1)(d) of the Constitution of Zimbabwe 2013, particularly in that:

3.1 There was neither compelling evidence nor any other basis from which it could be said that appellant was likely to abscond.

3.2 There was neither compelling evidence nor any other basis from which it could be said that appellant would interfere with witnesses.

4. The learned Magistrate's decision, to deny bail, on the basis of the two grounds advanced by the State, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

4.1 No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail was opposed and refused.

4.2 No reasonable magistrate could have failed to find that the crux of the State case, namely, appellant's alleged use of his position to benefit himself, fell outside the main charge thereby making the State case so weak that it could not be a reasonable basis for denying bail.

5. The learned magistrate committed an irregularity by writing a ruling that is so brief and generalised as not to be a permissible basis for denying bail.”

THE TEST FOR INTERFERING WITH THE LOWER COURT'S DECISION ON BAIL

The granting or refusal of bail involves the exercise of discretion by the Court before which the bail application is made. An Appellate Court will therefore not interfere with the exercise of discretion by the lower court unless the discretion was wrongly or improperly exercised: see Aitken and Another v AG 1992 (1) ZLR 249 (S); Chimwaiche v State SC18-13.

Interference with a lower Court's exercise of its discretion is thus permissible only in limited circumstances.

In Barros and Another v Chimponda 1999 (1) ZLR 58 (S) GUBBAY CJ, with the concurrence of EBRAHIM JA and MUCHECHETERE JA 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, may only be interfered with on limited grounds: see Farmers Cooperative Society (Reg) v Beffy 1912 AD 343 at 350.

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, or irrelevant matters, to guide or affect it; if it mistakes the facts; if it does not take into account some relevant considerations; then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial Court.”

It is with these principles in mind that I proceed to determine the appeal.

THE ISSUE ARISING FROM THE GROUNDS OF APPEAL

Bail was refused on two grounds, but, five grounds of appeal have been relied upon in attacking the decision of the Magistrates Court. The issues arising from the grounds of appeal are these;

(i) First, the Court below misdirected itself on the law in not considering all the factors laid down in section 117(3)(c) of the Criminal Procedure and Evidence Act in assessing, respectively, whether the likelihood of abscondment and interference with investigations or evidence were established.

(ii) Second, the Magistrates Court misdirected itself in finding, in the absence of evidence, that, the State had established that if released on bail the appellant was likely to abscond and to interfere with the investigations or evidence.

(iii) Third, the magistrate misdirected herself in failing to find that the imposition of bail conditions was enough to allay any fears that the appellant will interfere with investigations and evidence.

To me, ground number 5 is not really a ground of appeal. Rather, it is effectively an argument stemming from the first, second, and third issues I have just spelt out. The argument is simply, that, the brevity of the judgment a quo; evidence that the relevant bail principles were not considered. No analysis of the evidence and submissions was made. The result is that there are no proper reasons for the decision to refuse bail.

ABSCONDMENT

Section 117(3)(b) of the Criminal Procedure and Evidence Act lays out six factors that the Court must consider in assessing whether there is a likelihood of abscondment. These are:

(i) The ties of the accused to the place of trial;

(ii) The existence and location of assets held by the accused;

(iii) The accused's means of travel and his or her possession of, or access to, travel documents;

(iv) The nature and gravity of the offence or the nature and gravity of the likely penalty therefore;

(v) The strength of the case for the prosecution and the corresponding incentive of the accused to flee;

(vi) The efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii) Any other factor which, in the opinion of the Court, should be taken into account.

To begin with, the Court a quo misdirected itself on the law on bail when it said:

“In considering bail application, Court has to weigh factors which are outlined in section 117(2) of the Criminal Procedure and Evidence Act, Chapter 9:07, which, among those factors, include absconding, interfering with evidence, seriousness of the offence, and likely sentence.

Either one or more of them, if established, constitute compelling reasons and justifies accused persons continued detention in custody pending trial.”

The seriousness of the offence and the likely penalty are not two factors. It is one factor.

A serious or grave offence is more likely than not to attract a corresponding penalty. Seriousness of an offence is one of the factors a Court puts into the scales when weighting the risk of abscondment. The seriousness of an offence, or the likely penalty, are not stand alone factors on which bail may be refused.

The court a quo mixed up the bail principles.

The Court a quo misdirected itself in treating the seriousness as two different factors.

It further misdirected itself in considering the maximum sentence for the main charge, 15 years imprisonment, as a factor with an existence separate from the seriousness of the offence.

On the basis of this erroneous view of the law (which was not warranted) the magistrate concluded that the appellant was likely to abscond. This appears in three short paragraphs:

“On the likelihood of absconding trial if granted bail, State averred that accused person is facing a serious offence.

A plethora of case law has ruled seriousness of the offence, per se, is not a bar to deny accused person bail. However, State further indicated that due to the gravity of the offense in question and that the likely sentence is imprisonment not exceeding 15 years, Court rules that the cited cases by State, which include S v Ndlovu 2001 (2) 261, are of paramount importance contrary to what accused person, through his defence counsel, even though they were decided before the enactment of the new 2013 Constitution, for they are in tandem with the factors stipulated in section 117(2) of the Code.

Court rules that the seriousness of the offense, or its gravity, and the likely lengthy imprisonment, would induce accused person to flee the jurisdiction of this Court. This is further coupled with the laxity that our police officers and immigration officers, as was held in William Sithole v State 88-02, that people cross borders easily without requisite travel documents.”…,.

I agree with counsel for the appellant, that, the magistrate found that the respondent had established that the appellant was likely to abscond simply because he was facing a serious offense for which the law giver had prescribed a maximum penalty of 15 years imprisonment. This was denying the appellant bail on the ground that he was facing a serious offence. This is an invalid reason to deny anyone bail: See S v Hussey 1991 (2) ZLR 187 (SC).

The magistrate therefore grossly misdirected herself.

It is true, that, after making this finding, the Court below then went on to recite other reasons to bolster a finding that it had already made. The reasons were placed before the Court when the State counsel was making submissions: but, the learned magistrate did not assess them against competing submissions made on behalf of the appellant.

That is an injudicious exercise of discretion.

A court's duty is to weigh argument from both sides to enable it to arrive at a proper determination of the matter before it.

The submissions, which were uncritically accepted by the court a quo, post its finding that the seriousness of the offense was likely to induce the appellant, were these:

(i) The police and immigration officers were lax in enforcing border controls;

(ii) This country's borders are porous;

(iii) The appellant is a person of means;

(iv) He has travelled to various countries;

(v) He stayed for a considerable period in Zambia;

(vi) The extradition process with neighbouring countries has proven difficult;

(vii) The appellant acted in connivance with others who are still at large;

(viii) The investigating officer is finding it difficult to locate the appellant's accomplices who are still at large.

The court a quo did not consider all the factors germane to an assessment of the likelihood or otherwise of abscondment. These include;

(i) The strength of the case for the prosecution;

(ii) The effectiveness or otherwise of bail conditions to allay any fears of flight;

(iii) The ties of the appellant to the place of trial; and

(iv) The existence and location of assets held by the appellant.

The magistrate thus did not properly exercise her discretion: see Gomba v The State HH557-20.

The error means I am at large to exercise my discretion on the issue of abscondment, using the same materials as before the court a quo. In doing this, I may or may not reach the same conclusion as was reached a quo.

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.

FACTS

The details of this case can be summarised as follows:

The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment in South Africa. Until her arrest, on 4 December 2019, she was receiving treatment from a South African specialist doctor.

On her arrest, she was charged with:

1. Six (6) Counts of contravening section 5(1)(a) of the Exchange Control Act [Chapter 22.05] 'exporting foreign currency.'

2. Six (6) Counts of contravening section 8(2) of the Money Laundering and Proceeds of Crime Act [Chapter 9.24] 'concealing, disguising the true nature, source, location, disposition, movement or ownership of or right's with respect to property, knowing or suspecting that such property is proceeds of crime.'

3. One (1) Count of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (fraud).

She was subsequently charged with the attempted murder of her husband and assault for assaulting their maid.

According to documents attached to Form 242s in the applicant's application for variation, the appellant's charges of 6 (six) counts of contravening section 5(1)(a) of the Exchange Control Act are based on the following facts:

Count One: That she sent her driver Carrington Kazingizi and Terrence Mutandwa to China with US$114,000 without any declaration being made to the authorities.

Count Two: That she instructed Memory Chakuinga to issue a proforma invoice for the supply of event tents and chairs which were sent to CBZ Bank and the appellant. The appellant then applied to CBZ Bank for the transfer of US$201,846-=81 by telegraphic transfer into Falcon Projects Suppliers (Private) Limited's South African FNB bank account no 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the money from the purchase of event tents and chairs to Range Rover Centre Menyln towards the purchase of her personal vehicle, a Range Rover Autobiography, which she registered in South Africa, in her name, bearing registration number HW40JNGP.

Count Three: That she instructed Memory Chakuinga to raise a proforma invoice for the supply of household electric meters which she sent to CBZ Bank and the appellant. The appellant used that proforma invoice to cause CBZ Bank to transfer US$307,545=05 into Falcon Projects Suppliers (Private) Limited's South African FNB Bank account number 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the funds towards purchasing House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa. The house was registered in the name of LaChelle Travel and Tours (Pty) Ltd South Africa of which the appellant is the sole shareholder.

Count Four: That the appellant requested Judith Gamuchirai Goredema to source for three million rands for the purchase of the appellant's two cars, a Range Rover and a Ranger.

Thereafter, the appellant gave Judith Gamuchirai Goredema US$230,769=23. The Range Rover was registered in South Africa in the appellant's names bearing registration number HX61PSGP. The registration details for the Ranger had not been established at the time the charges were preferred.

Count Five: That the appellant externalised US$36,923=08 for the purchase of furniture for her South African House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa.

Count Six: That the appellant instructed Memory Chakuinga to prepare an invoice for the supply of prepaid meters. Thereafter, the appellant used it to cause CBZ Bank to transfer US$142,859=30 into Bonnette Electrical (Pty) Ltd's South African Standard Bank account number 371164540.

Instead of the money being used to purchase prepaid meters, the appellant instructed Memory Chakuinga to divert it towards the purchase of her second house being, Number 149 Valderana Close, Pretoria, South Africa.

The allegations involve the unlawful externalisation of US$1,033,943=10.

The other 6 (six) counts are for money laundering.

The charge of fraud is for misrepresenting to the Judge President and the Acting Chief Magistrate that her husband had consented to the solemnisation of their marriage when he had not, resulting in marriage arrangements and documents being prepared and the Acting Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale Brooke to solemnise the marriage which did not take place.

The attempted murder charge is based on what she is alleged to have done in South Africa when her husband, who was critically ill, had been airlifted to South Africa for treatment.

It is alleged, that, she, instead of taking him to hospital, kept him in a hotel room for more than 24 hours until her husband's security personnel intervened and took him to hospital. Thereafter, the appellant visited her husband who was in a private ward and on life saving Intra Venous Giving Set as well as Central Venous Catheter in order to sustain his life. She requested for privacy with her husband. Her husband's security personnel left the ward after which the appellant removed the life-saving equipment from the complainant who started bleeding profusely. She is alleged to have pushed him off the bed and left the ward. Thereafter, her husband's security personnel, on seeing what had been done to the complainant raised alarm and hospital staff came and reconnected the life saving equipment.

The assault charge is based on allegations that she assaulted their maid who she had met at their children's school.

Her bail applications in the Magistrate's Court were dismissed. She appealed to the High Court which granted her bail for the initial charges, on the following conditions:

1. That she deposits RTGS$50,000 with the Clerk of Court at Harare Magistrate's Court.

2. That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.

3. That the Clerk of Court shall accept as surety the property known as Lot 1 of Lot 343A Highlands Estate measuring 3,642 square metres held by KM Auctions (Private) Limited, under Deed of Transfer 2244/2006 accompanied by the necessary resolution of the directors and shareholders of KM Auctions (Private) Limited, Keni Mubaiwa and Helga Junior Mubaiwa.

4. That applicant shall surrender her diplomatic passport to the Clerk of Court at Harare Magistrate's Court.

5. That the applicant shall report at Borrowdale Police Station once a fortnight on Friday between 6am and 6pm.

6. The applicant shall not interfere with State witnesses.

In respect of the attempted murder charge, the none-monetary conditions imposed in respect of the initial charges were ordered to cover this charge in addition to her being ordered to pay additional bail in the sum of RTGS$10,000. The condition that she resides at No.614 Nick Price Drive, Borrowdale Brooke was varied to No.64 Follyjon Crescent Glen Lorne, Harare.

In respect of the assault charge, the following bail conditions were ordered by the High Court:

1. That she deposits $1,500 with the Clerk of Court, Harare Magistrates Court.

2. She resides at Number 64 Follyjon Crescent, Glen Lorne, Harare until the matter is finalised.

3. She reports at Borrowdale Police Station every fortnight on Friday between 6am and 6pm.

4. She does not interfere with State witnesses, including Delight Munyoro and Batsirai Furukiya. She does not attend at Hellenic Primary School except in connection with consultations with school authorities.

Thereafter, the appellant's initial bail conditions were altered to include the surrendering of her ordinary passport number CN701555 which had not been previously disclosed when bail was granted by the High Court, to the Clerk of Court at Harare Magistrates Court.

Subsequently, the appellant applied to the court a quo for the variation of her bail conditions.

She sought the release to her of her ordinary passport so that she could travel to South Africa for medical treatment by Dr Van Hedeen, a specialist on lymphoedema. She also sought the temporal suspension of the condition that she reports to Borrowdale police every fortnight on Fridays. This was to enable her to travel to South Africa where she was to receive treatment for a period which would result in her not being able to meet the reporting condition.

In her application for variation, the appellant concentrated on the condition of her health. She did not explain how the interests of justice should be balanced with her need for medical treatment if her application was to be granted.

She merely said she would not abscond as she could not risk the forfeiture of her parents' property which was offered as surety when she was granted bail by the High Court.

On the other hand, the first respondent opposed the application alleging that the appellant has strong ties with South Africa and that most of the charges preferred against her involve the externalization of foreign currency to South Africa.

The attempted murder is alleged to have occurred in South Africa.

The first respondent also opposed the application for variation on the basis that the evidence led by the appellant left grey areas on the issue of whether or not there are specialists in Zimbabwe who can treat the appellant's condition.

The court a quo accepted that the appellant needed medical treatment by specialists. It accepted that prior to her arrest she was being attended to by Dr J Van Hedeen, a South African specialist. The court a quo however did not accept the evidence of Dr J Van Hedeen who authoritatively spoke about the appellant's current condition without disclosing how he got that information as the appellant has not travelled out of Zimbabwe since her arrest on 4 December 2019. It also did not accept the evidence of specialist neurologist, Mr Makarawo, on his statement that there are no specialists on lymphoedema in Zimbabwe.

It held that the appellant's application was based on inadequate evidence.

The court a quo gave its reasons for dismissing the appellant's application on pp33 to 34 of the record as follows;

“What I have before me by way of applicant's medical condition is one-sided. It is true that first respondent concedes that she is unwell. It is true also that she needs treatment. But that cannot be the end of the matter.

Indeed, papers from her own doctors contain some grey areas. Mr Makarawo first attended to her on 6 November 2020. He diagnosed her with lymphoedema and recommended that she be treated in South Africa because he believes that there are specialists there. I have already rejected his assertion that there are no lymphoedema specialists in Zimbabwe. I have explained why I have done so.

Dr J Van Heeden may have been treating applicant before the later's arrest on 4 December 2019. But, no evidence was presented before me to prove that he or she has attended to her since then. Applicant concedes that she has not travelled out of the country since her arrest. But, in October and November 2020, Dr J Van Heeden is giving a fairly detailed narration of applicant's medical condition and the specialist care required.

Applicant says she sought medical treatment in Zimbabwe post 4 December 2019. She says those efforts have not alleviated her condition. Instead, her health has deteriorated. She has produced neither medical reports nor other medical records to substantiate her assertion that she has failed to obtain the care that she needs in this country. I only have Mr Makarawo's letter, written on 6 November 2020. So there is that gap in the evidence.

Applicant has placed inadequate information before the court to warrant alteration of her bail conditions.

ORDER

In the result, the application is dismissed.”

It is for these reasons that the court a quo dismissed the appellant's application without considering the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions, and, if so, on what conditions.

Aggrieved by the court a quo's decision, the appellant appealed to this Court on grounds of appeal which raise the following issues:

1. Whether the court a quo misdirected its self when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation.

2. Whether, on the evidence on record, it was established that the alteration of bail conditions sought by the appellant is in the interest of justice.

SUBMISSIONS BY THE PARTIES

In view of the lockdown due to Covid-19, I did not call the parties to appear before me to make oral submissions. I however invited their counsels to file Heads of Arguments as provided by Part III paragraph (4) of the Chief Justice's Practice Direction No.2 of 2021.

Counsel for the appellant submitted that the court a quo erred when it dismissed the appellant's application on the basis that the applicant had given the court inadequate information on whether or not there are lymphoedema specialists in Zimbabwe who could treat her locally.

She submitted that the court a quo erred when it relied on the armchair evidence of Dr Magure while disregarding that of neurologist, Mr Makarawo, who had examined the appellant and formed the opinion that her condition required the attention of specialists on lymphoedema in South Africa as there are no specialists on lymphoedema in Zimbabwe.

Counsel for the appellant further submitted that the court a quo also erred by dismissing the application without deciding the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions.

She also argued that the first respondent had alleged that the appellant will abscond if variation is granted as she has roots in South Africa without leading evidence on that aspect.

She, in conclusion, urged this Court to allow the appeal and grant the appellant's application for variation.

Counsel for the first respondent, in response, submitted, that, the court a quo had correctly held that the evidence led by the appellant left the court with inadequate information on whether or not her condition could not be treated locally. She submitted that the evidence led from neurologist, Mr Makarawo, and Dr J Van Heeden, had gaps which left the court with inadequate information.

On the issue of whether or not the State had led evidence on the likelihood of the appellant absconding because she has ties with South Africa, she submitted that it is not a rule of thumb that evidence has to be led in bail applications in rebuttal of what is placed in issue. The written documents and affidavits sufficed.

She further argued that she had, through her written response and in oral argument, urged the court a quo to strike a delicate balance between the two conflicting interests.

She further submitted that the court a quo considered the totality of the evidence and properly dismissed the application....,.

Whether the court a quo, misdirected itself when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation

In her heads of argument, the appellant's counsel submitted that the court a quo misdirected itself when it disbelieved Mr Makarawo's evidence that there are no specialists on lymphoedema in Zimbabwe.

A reading of the record establishes that the court a quo did not disbelieve Mr Makarawo's evidence on the condition of the appellant and her need for a specialist to treat her condition.

It is a well-known fact that doctors refer their clients to specialists if they cannot treat them themselves. It is a notarious fact courts can take judicial notice of.

The court a quo could therefore only disbelieve Mr Makarawo's evidence on the basis of evidence to the contrary being led that there are indeed specialists on lymphoedema in Zimbabwe.

The court a quo said it relied on the evidence of Dr Tsitsi Mildred Magure.

A reading of her evidence establishes that she did not say there are specialists on lymphoedema in Zimbabwe. She, in her statement, said:

“I cannot therefore commit myself to whether we have expertise locally to manage the condition or not without knowing the underlying cause of the lymphoedema. Determination of which expertise is best placed to manage the case depends on the cause and grade of the lymphoedema. Assessment by a multi-disciplinary team might conclude which expert to lead the management.”…,.

The questions which the Prosecutor General's office had asked were not answered directly.

The Prosecutor General's office had asked the Ministry of Health, which forwarded the question to Dr Magure:

1. Whether medication and the necessary facilities for its cure are readily available in Zimbabwe; and

2. Whether there are any lymphoedema specialists in Zimbabwe.

Dr Magure's response did not address the question whether medication, and the necessary facilities for its cure, are readily available in Zimbabwe. She also refused to commit herself as to whether or not there are specialists on lymphoedema in Zimbabwe.

Her suggestion, that, a “multi-disciplinary team might conclude which expert to lead the management” suggests that an experiment has to be undertaken to establish which expert can lead the management.

This does not prove that there is readily available medication and the necessary facilities for the cure of lymphoedema in Zimbabwe.

The question whether there are specialists on lymphoedema in Zimbabwe could have been answered by simply saying yes and stating the names of the specialists.

I am therefore satisfied that the court a quo misdirected itself when it preferred the evidence of Dr Magure to that of specialist neurologist Mr Makarawo.

The finding by the court a quo, that Dr Van Hedeen's evidence left a grey area as to when he examined the appellant, cannot be faulted.

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

The court a quo correctly observed that the appellant had not left Zimbabwe since her arrest on 4 December 2019. The court a quo therefore correctly questioned how Dr Van Hedeen, who lives in South Africa, could have examined the appellant to enable him to give a detail narration of the appellant's current condition.

The court a quo also correctly held that the appellant had not substantiated her claim that she had sought treatment locally in Zimbabwe without success. It observed that no supporting documents were placed before the court in support of that claim, from doctors who were attending to her.

A reading of the record proves that the appellant did not produce such documents.

I am however of the view that the omission was cured by Mr Makarawo's report to the effect that there was gross swelling of the appellant's arms and legs and the first respondent's concession that the appellant is unwell.

That, on its own, is proof that whatever treatment she might have received after her arrest had failed to cure the lymphoedema.

While the court a quo's observation is correct, it is an irrelevant and unnecessary quest for further evidence in circumstances where the first respondent had made a concession.

It is trite that what is not disputed need not be proved.

I therefore agree with counsel for the appellant, that, the appellant had, through the evidence of Mr Makarawo, proved that her condition required a specialist's attention in South Africa where she was receiving treatment before her arrest.

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

This is an appeal against the refusal of bail (pending trial) in the Magistrates' Court in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the following grounds:

“1. The Magistrate misdirected himself in law in failing to find that 'compelling reasons' demanded by section 50(1)(d) of the Constitution of Zimbabwe, 2013 had not been established by the State, particularly in that:

1.1 There was neither evidence nor any other basis from which it could be said that appellant was likely abscond;

1.2 There was neither evidence nor any other basis from which it could be said that appellant would interfere with witnesses;

1.3 Reference to 'public outcry' is, in itself, never a compelling reason given that it is the people themselves that entrenched a presumption of innocence in the Constitution;

1.4 The State did not address any of the bail conditions offered by the appellant, thereby failing to discharge the onus thrust upon it by law. A compelling reason is one that remains notwithstanding bail conditions.

2. The decision to deny bail, on the basis of the above grounds, is so outrageous in its defiance of logic or common sense that no reasonable magistrate, applying his/her mind to the facts and conscious of the right to liberty, could ever have reached that conclusion, particularly in that:

2.1. No reasonable magistrate could have failed to find that the bail conditions offered by the appellant overwhelmingly addressed and answered each of the grounds upon which bail could be refused;

2.2. No reasonable Magistrate could have failed to find that the appellant, in the circumstances, met all the requirements set out in law for release on bail.”

The appellant is a former Member of Parliament and Cabinet Minister. He was arrested on 15 November 2017 at his home in Mount Pleasant. He stated that on the night in question, he heard an explosion at around midnight of 14 November 2017 but did not wake up until he had heard the sound of a second explosion which shook his house.

His wife had woken up at the sound of the first explosion upon which she had observed certain persons jumping into the property. The appellant got up to investigate whereupon his bedroom door burst open and 5 to 8 men armed with AK47 rifles burst into the room (who he described as being soldiers), pointed the guns at him, and handcuffed him whilst blindfolding him with his T-shirt.

He stated that the men were dressed in 'military uniform (green camouflage) including shoes.'

The appellant stated that he was forced out of his home, barefooted and blindfolded, and placed lying sideways in a lorry with occupants securing his body, head, and middle to prevent him from wiggling out of the vehicle.

He described that after travelling for about an hour he was interrogated with accusations that he had not run his Ministry (Ministry of Home Affairs) well, with one of the assailants or detainers complaining that the appellant had failed to provide him with a Stand when he was Minister.

He was taken to an undisclosed location and detained there for some days.

He told the court that on the second day of his detention, his captors allowed him to write a note so that they could collect his medication from his home. He also stated that he also requested a shirt and trousers and toiletries. At some point, his captors brought his doctor to attend to him whilst he was so detained.

During his time in captivity, over the next few days, he was interrogated by four to six men about decisions he had taken as Minister of Local Government. He said that he was guarded at all times by two to three people.

He told the court that he was never assaulted by his captors and that they made efforts to meet his requests for provisions because he is diabetic with other illnesses.

The day before he was taken to court, they removed his blindfold and drove him to his home. Upon arrival, the appellant noticed policemen sitting in a car which was parked outside the gate of his house. He told the court that the police who were blocking the entrance to his home, complied with an authoritative request made by his captors for them to move their vehicle out of their way.

His captors dropped him off.

At his house, his abductors allowed him to make a request to his wife to bring him his spectacles. His captors left and the police who were at his house took over and basically ferried him away.

He recalled the specific date of his abduction as being 15 November 2017 because he had attended a Cabinet meeting earlier on the same day. The appellant vehemently denied that he had been arrested on 23 November 2017 which is the date of arrest reflected on the charge sheet. His charge sheet shows that he was arrested on three counts for the following crimes as alleged:

“1. Count One - Section 4 of the Prevention of Corruption Act [Chapter 9:16] - 'Does anything that is contrary to or inconsistent with his duty as a Public Officer.'

2. Count Two - Criminal Abuse of Duty as Public Officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

3. Count Three- Fraud.”

Count One pertained to actions allegedly taken by the appellant in 2004 to 2009. Count Two pertained to alleged criminal acts by the appellant on 13 December 2006 and 25 March 2008. Count Three pertained to a fraud allegedly committed by the appellant between 8 December 2005 to 26 January 2006.

The appellant immediately applied for bail. The State opposed his application on the following grounds:

“1. Considering the seriousness of the offence, and the stipulated sentence if convicted, the accused is likely to abscond so as to evade prosecution.

2. Accused is the former Minister of Local Government who had access and control of the personnel hence the accused is likely to interfere with witnesses.

3. The current political situation is not favourable to the accused's safety. It is therefore proper for the accused to be remanded in custody for his safety.”

The reasons given by the State, both in opposing bail in the court a quo, and in opposing bail on appeal, are not founded in fact.

The court a quo was not furnished with reasons or evidence upon which it could make a determination regarding whether or not the interests of justice would be best served by remanding the appellant into custody.

Section 117(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] states as follows:

“117 Entitlement to Bail

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established —

(a) Where there is a likelihood that the accused, if he or she were released on bail, will —

(i) Endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) Not stand his or her trial or appear to receive sentence; or

(iii) Attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) Undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) Where, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.”

No reasons were provided, nor any evidence led in support of the State's grounds for opposing bail. Neither did the court a quo make any enquiry to establish the veracity of the State's reasons for opposing bail, as would have been expected of it, prior to arriving at its determination refusing bail.

The State didn't provide the reason for believing that the appellant would abscond save to just merely allege that the appellant may abscond; neither did it identify which witnesses the appellant was likely interfere with if he was let out on bail.

The court also failed to make an enquiry into the State's allegation that “the current political situation was not favourable to appellant” to the extent that the appellant needed to be remanded in custody.

The State case consisted of mere allegations; and the court misdirected itself in lending credence to those grounds of opposition by simply accepting them without enquiry.

The court a quo grossly misdirected itself in its findings: see Aitken v Attorney-General & Anor v Aitken 1992 (1) ZLR 249 (S); Air Zimbabwe v Phiri 1988 (2) SA 696; S v Ncube 2001 (2) ZLR 556.

The errors and omissions committed by the court a quo, in arriving at its determination to refuse the appellant bail, are so egregious that they warrant me invoking my powers of review in terms of section 27(1)(c) of the High Court Act [Chapter 7:06].

I deem that the proceedings a quo were not in terms of real and substantial justice. The gross errors committed a quo require correcting.

The decision made a quo was unconstitutional to the extent that the court did not observe, as it was obliged to, the provisions of section 50 of the Constitution.

The appellant was subjected to inhumane and undignified treatment at the hands of his captors. He was not informed of the reason for his abduction, at the time that he was arrested in the dead of night at his home, or at any time prior to being brought to court on 23 November 2017.

Contrary to the peremptory provisions of section 50(2)(b) of the Constitution, the appellant was held for far beyond 48 hours in an undisclosed location.

I was troubled by the comments made by the court a quo in remaining complicit with the State's misleading statement that the date of arrest was when the police arrested the appellant, in circumstances where the appellant had been abducted and kept incommunicado by State agents several days before the police 'arrested' the appellant.

It's obvious that the police were in cahoots with the mysterious Sate agents given the fact that they took off where the State agents left off.

The appellant was detained by State agents on 15 November 2017 and only bought before a court of law a whole week later. To that end, the court sanctioned a breach of section 50(5) of the Constitution.

The appellant was kept incommunicado and thus denied his right to remain in communication with family or to consult, in private, with his lawyer or doctor during the period of his detention per section 50(5)(c) of the Constitution:

“(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult, in private, with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material, and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

When looking at the reasoning of the court a quo, in denying the appellant bail, it is my overall view that the court a quo got swept up by the sensationalism of the case and allegations surrounding the appellant's arrest.

The Magistrate lost sight of the fact that she was seized with an ordinary application for bail because she did not deliberate upon the meaning and intention behind section 50(1) of the Constitution which reads:

“50 Rights of arrested and detained persons

(1) Any person who is arrested —

(a) Must be informed, at the time of arrest, of the reason for the arrest;

(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult, in private, with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;

(d) Must be released unconditionally, or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and

(e) Must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.”

The arrest and detention of the appellant were, in my view, illegal.

The unfortunate and illegal actions which preceded the appellant's appearance before the court a quo, and which illustrate the manner by which the appellant was dealt with by State agents and the police, ran afoul to the presumption of innocence weighing in his favour.

However, as appalling as his treatment was, I am mindful of the fact that the charges would still not have been tainted: see Jestina Mukoko v Attorney General 2012 (1) ZLR 117 (SC).

The appeal before me is for bail pending trial.

In my view, this is a proper case for setting aside the decision of the court a quo on the basis that the court a quo grossly erred in denying the appellant bail.

Accordingly, I order as follows:

1. The appeal succeeds.

2. The appellant be and is hereby admitted to bail on the following conditions stated hereunder:

(a) The appellant deposits an amount of US$5,000 with the Clerk of Court, Harare Magistrates' Court.

(b) The appellant to reside at 847 Golden Stairs, Mt Pleasant, Harare.

(c) The appellant to report three times a day one between the hours of 6am to 10am; 1am to 2pm; 4pm–6pm at Marlborough Police Station, Harare.

(d) The appellant to surrender title deeds to his residential property.

(e) The appellant to surrender his passport and any other travel documents he may possess.

(f) The appellant is not to interfere with witnesses or tamper with evidence.

(g) The appellant is not to visit the offices of the Ministry of Local Government and those of the Reserve Bank of Zimbabwe.

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.

The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at House Number 221 Ephraim Blank Street, Chivhu, he unlawfully caused the death of Modester Chikaka by pouring paraffin over her body and setting her on fire causing severe burns all over her body, from which injuries she died on 26 October 2011.

The appellant pleaded not guilty to the charge alleging that the deceased had poured paraffin over her body and set herself alight.

He was convicted after a full trial and sentenced to 13 years imprisonment.

The State's case was based largely on circumstantial evidence.

The State led evidence from three witnesses; Tawanda Miti (Miti), a police officer, his wife, Nyasha Tsopotsa (Tsopotsa), and Sekai Guramatunhu (Guramatunhu), also a police officer.

The evidence of Tawanda Miti was to the effect that his wife and he shared the same residence with the deceased. They lived in adjoining rooms that shared the same veranda. Each room had its own entrance door from the common veranda. The deceased occupied one room at the furthest end. The witness, together with his wife and brother, occupied the next two rooms after the deceased's. The fourth door led into a common washroom and toilet. Behind the toilet was a water tap.

During the night in question, after having retired to bed, he was awoken by the screaming of a person calling out his name. He went out of his room and saw flames of fire inside the deceased's room. He next saw the appellant arriving on the veranda. He instructed the appellant to put out the fire that was burning in the deceased's room. He next saw the deceased coming from behind the residence in the direction of where the water tap was. He observed burn injuries on the deceased's body. The deceased said to the appellant words to the effect: “Why did you not pour paraffin on yourself as well since you said that you wanted both of us to die?”

The deceased kept on saying this and went on to tell the witness that the appellant was in possession of the matches which he had used to set her ablaze after he had poured paraffin on her from a paraffin stove. The witness inquired from the appellant who told him that the deceased had set herself ablaze. The witness gave instructions for the deceased to be wrapped in a cloth. He, in the company of his brother, drove the appellant and the deceased to Chivhu Police Station where the appellant was searched and the matches was found in his pocket. He thereafter drove the deceased to hospital.

The witness was found to be an honest, impressive, and reliable witness in the assessment of the court a quo.

The second witness, Nyasha Tsopotsa's evidence was to the effect, that, as they were asleep during the night of 23 October she heard the deceased screaming “mai wee ndofa” which was translated to mean “mother, I am dying.” Soon thereafter she heard the sound of a door being opened. She heard footsteps going to the backyard at the same time as the deceased yelled “Brandon's father!” a reference to the witness husband. In response, her husband went out with her in tow. She saw the deceased standing by the doorway to the toilet. The half petticoat that the deceased was wearing had been burnt and was stuck to her body. She had burn injuries on her body. The appellant was standing by the deceased's doorway. The deceased accused the appellant of setting her alight and demanded that he finishes her off as he had been ill-treating her for too long. The appellant, on the other hand, was saying that the deceased had burnt herself. The witness also saw smoke coming out of the deceased's room.

The witness was instructed, by her husband, to find something to wrap the deceased with as she was virtually naked. She took a sheet from the deceased's bed and wrapped her with it before her husband instructed the deceased to get into the vehicle so that they could proceed to the hospital. The appellant also boarded the same vehicle and they left.

As with Tawanda Miti, the court a quo was impressed by the witness demeanour. It found that her evidence was largely corroborative of that of Tawanda Miti. The court a quo also noted that the witness evidence, that the deceased accused the appellant of persistent harassment, and further said that the appellant ought to have finished her off, was not disputed or challenged in cross examination. The court thus accepted that the deceased uttered the words testified to by the witness.

Sekai Guramatunhu was the State's third and last witness.

On the night in question, at around 2:00 or 3:00am she was at the police station when Tawanda Miti entered the charge office with the appellant. After Tawanda Miti made a report to her she went outside to where Tawanda Miti's vehicle was. Inside the vehicle was the deceased who was in pain. She observed the injuries that the deceased had sustained and suggested that she be ferried to the hospital. The appellant followed her to the vehicle and told her not to talk to the deceased as she had been burnt. She assumed that the appellant's utterance was because the deceased was in pain.

The defence applied for discharge at the end of the State case in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The State consented to the application.

The court a quo had a different view and it dismissed the application on the basis that the evidence that the State had adduced raised a prima facie case that the appellant had to answer.

In its ruling, the court a quo stated, inter alia:

“In short, the accused does not deny being in the company of the complainant (sic) at the time that this incident took place. The deceased ended up dead in circumstances where there were certain utterances which intended (sic) to lead to an inference that the accused may well have had something to do with this matter. It is only fair that the court is placed in a position to get the whole story of what took place. The accused is the only person who was there who can give such story. That application is dismissed.”

The appellant's evidence was to the following affect:

The deceased was his second wife and had been so for five years. He had no children with her but had four children with his first wife. On 23 October 2011, he arrived at the place where the deceased was staying at about 1:00am. The deceased opened the door for him and they exchanged greetings. She went back to bed and he “sat on a chair which was next to the table and this table is located next to the bed.” He advised her that there were some issues that he wanted to talk to her about. She got out of bed and got dressed in a skirt and a blouse. She went and sat across the table opposite to where the appellant was seated.

When asked what sort of conversation he had with her, he said:

“I then advised her that she was in the habit of going to the bars in my absence. I even went to tell her (sic) the names of the persons who had told me this information. These people were my relatives and were actually known to her….,. They are two of my brother's sons….,.

I then advised her, that, by going to the bars like what she was doing, these young men were actually seeing them (sic), and, as such, was causing a lot of embarrassment….,.

She was silent during the time that I was telling her that.

But, she suddenly got up and said that she was going to set herself alight….,.

During the time that she was making that utterance she was actually making the way to the stove that was located next to the bed….,. It was a pram (primus) stove that normally uses paraffin. I had eventually bought that paraffin stove for use during the time that there will be no electricity….,. She suddenly got up, grabbed the stove, and poured the paraffin on herself….,. She let go the stove and she quickly grabbed the matches.

It was during the time that I quickly grab (sic) (grabbed) her by both hands as I was afraid that she might strike the matches. I then kept a firm grip on the hand holding the matches in order that she will not be able to lit (sic) (light) the matches. I took the matches from her and placed it in my pocket….,.

I then asked her why she wanted to set herself on fire….,.

She did not respond and she went back and sat on the chair and I sat back on my chair.

I then asked her why she wanted to set herself on fire and that I was just reprimand(ing) her not that I no longer loved her….,.

She did not reply.

I then kept on telling her to desist from her behaviour and that I was going to continue maintaining her as I have (sic) been doing before. Thereafter, she first remained silent. I then started to contact her aunt and her sisters; unfortunately I failed to get through to them. I continued sitting down trying to cool her down whilst advising her to desist from her behaviour.

It was after some time had lapsed, whilst I was trying to contact her aunt and her young sister and I was failing to get through. So we sat for quite some time….,. I was afraid to leave as I thought that maybe she might do something.

It was after we had settled for quite some time that she might have noticed that I was dozing as it was during the night that she took advantage because I just suddenly heard the sound of a chair being moved. When I got up she had already stood up and rushed to get another box of matches that I had not noticed.”

The appellant was asked how much time had elapsed between the time that she poured paraffin on herself and the time when she rushed to get another box of matches. His response was: “I think about 30 minutes when I was talking to her.”

He proceeded to state as follows:

“When I heard the sound of the chair and I got up he (sic) (she) was already stood up (sic) and picked up the matches box (sic) and she then struck the matches.

I also assumed, that, because of the time that we had spent after she had poured paraffin on herself that maybe it might have vapoured off. She actually directed the flame of the match on the bottom but it failed to catch and she put it under her arm and she then caught the fire….,.

She then screamed whilst advancing towards me….,. She appeared she actually wanted to grab me by the neck, but she missed; then she grabbed me by one of my hand(s) on the upper arm. During the time, she was now on fire. She actually held me in an indication that she did not want to let me go (sic).

It was then that I also caught the fire such that I also suffered injuries.

I realised that the fire was quite great and that my life was also in danger that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tape (tap) so that I put out the fire. She left hold of me as we were by the door and she was now in front. When we got to the tap, I instructed her to kneel down; I opened the tap and there was now water that was being poured on her head (sic) and all the body.”…,.

It is opportune to briefly digress at this stage and take note that in his confirmed warned and cautioned statement the appellant did not make any mention of having dozed off. He said that after setting herself on fire the deceased embraced him and he opened the door whilst she was so embracing him. He stated, inter alia:

“She went and sat on a chair which she had been sitting on and I also sat on a chair. We spent about ten to fifteen minutes while I was questioning her about the story but she was not responding. Whilst I was sitting, Modester Chikaka got up from where she was seated and picked another matches (sic) and struck a match stick before I got close to where she was and lit herself and embraced me whilst she was screaming. I opened the door while she was still embracing me and she was crying. When I opened the door, the fire burned heavily. She then ran to the tape (sic) where she poured some water on her. (sic) I followed her to the tape, (sic) helped her to extinguish the fire. I then went into the house to extinguish (the) fire which was burning there and that was when Modester Chikaka informed her neighbours that I had burned her. I did not want to dispute with her because it was a waste of time.”

The appellant further stated, in his testimony before the court a quo, that, after putting out the fire, he rushed towards the veranda where Tawanda Miti gave him a bucket which had water in it and told him to put out a fire that was burning inside the deceased's room. Inside the room, he saw something that was burning on the floor. It appeared to be a skirt, and he poured water on it thereby putting out the fire. There was another fire burning at the spot where the deceased had poured paraffin on herself. After putting out the fire in the room he went outside, and, in his words, he found the deceased “telling Miti and others that I had actually poured paraffin on her and set her on fire. But, I actually denied that and advised that she had done that to herself. But, after I had advised her that I am not the one who had poured paraffin on her, she then kept silent on that aspect.”

The appellant was asked how many minutes elapsed between the time that he put out the fire on her at the tap and the time that he found her alleging to Tawanda Miti, and others, that he had set her on fire. His answer was: “I think the incident could have taken about five minutes.”

He stated that when she was making the allegation she was no longer on fire as he had doused it.

It was also the appellant's evidence, that, during the time that the deceased was on fire and was crying out, he could not make out what she was saying.

Under cross-examination, the appellant said that the deceased called out to Tawanda Miti after he had put out the fire that was burning her and as he was putting out the fire in her room. He said that the deceased only screamed out the words “oh mother, I am dying” after he had put out the fire on her.

He further said, that, the deceased was lying about everything that she was saying to Tawanda Miti and the others. He accepted that the deceased did ask him why he had not also burnt himself. He said that she was lying but he thought that it was no use arguing with her considering the state of her injuries at the time and his concern was to seek medical attention for her.

As to why he had not asked or caused the deceased to remove the clothes on which she had poured paraffin, his response was that he did not think of it and that he thought the clothes would dry up.

He also thought that the deceased made the utterances that she made against him in order to “fix” him because he had exposed her infidelity of being seen in bars with other men.

The court a quo convicted the appellant on the basis that the circumstantial evidence placed before it proved beyond reasonable doubt that he had committed the offence. It also found that the State witnesses were credible witnesses.

It concluded, that, the utterances made by the deceased constituted res gestae and were admissible against the appellant.

It was the court a quo's view that the issue was whether it was the appellant who had poured paraffin on the deceased and set her ablaze resulting in the injuries from which she died and that the absence of a post mortem report was not fatal to the State case. It concluded that it was the appellant who had poured paraffin on the deceased and set her ablaze.

The appellant raised the following five grounds of appeal against his conviction and one against sentence:

“1. The Court a quo erred in coming to the conclusion that the State had proved beyond any reasonable doubt the appellant doused Modester Chikaka 'the deceased' with the paraffin and set her alight in the absence of admissible evidence supporting that conclusion.

2. The Court a quo lost its path in concluding that the deceased died from the fire in the absence of a post-mortem report supporting that finding.

3. The trial court erred in mis-applying the doctrine of res gestae by admitting inadmissible hearsay evidence of the deceased in circumstances where the State had not satisfied the pre-requisites of such admissibility.

4. The Court a quo misapplied rules of circumstantial evidence and misdirected itself by making a finding that the appellant committed the actus reus of murder in the absence of any proved facts from which that inference could be drawn.

5. The Court a quo fell into error by summarily rejecting the appellant's defence as inherently improbable that it could not reasonably be said to be true in circumstances where the evidence before it supported such a defence.

AD SENTENCE

6. The Court a quo erred in imposing a disturbingly severe sentence in circumstances where the Court a quo had made (a) finding that appellant's mitigation was considerably weighty.”

ISSUE TO BE DETERMINED

The issue to be determined is whether or not the State proved the appellant's guilt beyond reasonable doubt.

Counsel for the appellant based his oral submissions before us on five points:

(i) The first, which he indicated was not covered in his heads of argument, was that the court a quo proceeded under circumstances of an irregularity; the irregularity being that the summary of the State case contained allegations on which no evidence was led by the State, that such irregularity was designed to undermine the appellant's defence and colour the court's mind and that both these aims were achieved.

(ii) From the other four points that he said were covered in his heads of argument, the second point was that, on the application of the proper legal test, it cannot be said that the defence put forward by the appellant in the court a quo was false, and, consequently, worthy of the rejection by the court.

(iii) The third point was that the cause of death was not established in the court a quo.

(iv) The fourth point was that the court a quo irregularly admitted inadmissible hearsay evidence and went on to found its judgment on such inadmissible evidence.

(v) The fifth and final point was that the requirements for a conviction based on circumstantial evidence were not met a quo.

With regard to the first point, the contention was that the State made damning but false allegations against the appellant on which no evidence was led. Specific reference was made to paragraphs 2, 3 and 4 of the Summary of the State case as reflected at p2 of the record of proceedings.

Counsel for the appellant particularly highlighted paragraph 3 which reads:

“The accused proceeded to take a paraffin stove which was in the room and poured the paraffin onto the deceased. He took a box of matches from his trousers pocket, lit one match stick and threw it on the deceased's body setting her alight.”

It is my view, that, if the court a quo convicted the appellant purely on the basis of what is stated in the State Summary, and not on the basis of the evidence that was placed before it, then it goes without saying that the conviction would be baseless and would not survive this appeal.

If, as alleged, the court's mind was 'coloured' and the appellant's defence 'undermined' by the averments in the State Summary, such should be discernible from a reading of the court's judgment as it would have no cogency on the basis of the evidence that was placed before it. In this regard, I also take it, that, by the use of the word 'coloured' the defence meant that the court a quo was unduly influenced, in a negative manner, to the prejudice of the appellant.

It is trite that an appeal to this Court is based on the record.

It is also trite that an Appellate Court will not interfere with the decision of a trial court or tribunal unless the trial court or tribunal fundamentally misdirected itself in arriving at its decision. It is trite that an Appellate Court will not lightly interfere with a trial court's factual findings.

It is common cause that the appellant's conviction was not based on direct evidence. There was only circumstantial evidence that was adduced before the court a quo....,.

It must not be overlooked that the onus on the respondent was to prove its case against the appellant beyond reasonable doubt.

Counsel for the appellant's second, fourth, and fifth points revolve around the issues of the application of the evidential rules relating to res gestae and to circumstantial evidence.

The circumstantial evidence is made up of different aspects of the events that took place as the incident unfolded. The deceased's utterances, the subject of the conflicting contentions regarding hearsay evidence, with particular reference to res gestae, form one of the weighty aspects, among others, that emerge from the evidence that was placed before the court a quo.

The admissibility of the evidence of those utterances has been hotly contested by the defence.

What clearly emerged from the evidence by the State witnesses, which evidence the trial court accepted, was that during the time that the deceased was on fire she called out: “oh mother, I am dying” and she also called out Tawanda Miti's name.

Soon after the fire that was consuming her had been doused, and as soon as she saw Tawanda Miti, who she had called out to, she told him (Tawanda Miti), and the others who had come out, that the appellant had poured paraffin on her and set her alight.

The defence's contention is that this was hearsay evidence of utterances that did not amount to a spontaneous exclamation of a statement at the time of the relevant event, which would, at common law, constitute res gestae.

The submission was made, that, the deceased had had ample time for cogitation in the five minutes that elapsed from the time that she was burning, attempting to put out the fire, running to the tap, and running back, and then making the allegation, such that whatever she said at that stage could not qualify as part of the res gestae.

The argument was that the spontaneity requirement was not met.

Counsel for the respondent, on the other hand, submitted that the court a quo decided that the deceased's utterances were res gestae because she had screamed out and footsteps were heard by the first and second witnesses and that immediately upon returning from the water tap she had accused the appellant of having doused her with paraffin and set her on fire.

He submitted that the court a quo cannot be faulted for its finding that the failure by the deceased to name the appellant, at the time that she was burning, cannot be held against her if regard is had to the fact that, at the first opportunity, when she was no longer on fire, she named the appellant as the culprit.

Furthermore, that this was in the presence of the appellant at the scene.

Counsel for the respondent cited the case of R v Andrews [1987] 1 All ER 513 in support of his argument as regards spontaneity in cases involving res gestae. In his heads of argument, he gave the following quote, purportedly from the case, but did not give the specific page at which it appears in the Law Report:

“The test used by the courts, in determining spontaneity, is not necessarily one of exact spontaneity that is defined with mathematical precision. It is sufficient to establish approximate or substantial spontaneity.”

It was his submission, that, the court a quo correctly observed that to fault the deceased for not mentioning the appellant's name at the time that she was on fire would be to take an armchair approach.

It was also his submission, that, it is necessary to consider the totality of the evidence adduced and ascertain whether there was a break in the chain of events. He referred specifically to p26 of the record where the following exchange took place between the defence counsel and the witness, Tawanda Miti, during cross examination:

“Q. How many minutes lapsed from the time you heard the scream and the time that you then saw the now deceased coming from the tap direction?

A. Judging from the events, it could be less than a minute.”

I need to point out, that, in my reading of the judgment in R v Andrews [1987] 1 All ER 513, I was unable to locate the quotation cited by counsel for the respondent.

I make note, at this stage, that, counsel for the appellant's comment on this English authority was that its full content was not captured in the excerpt quoted by counsel for the respondent.

He submitted, that, the uncaptured aspects are;

(i) Firstly, that, if a statement is made after the event, it ordinarily falls outside spontaneity.

(ii) Secondly, if the statement is to be received in evidence there is a mandatory procedure to be followed in the Supreme Court of Judicature after which a preliminary ruling must be made by the judge. Thereafter, evidence of the statement can be given.

He likened the procedure to a trial within a trial in which the court must deal with and answer what he referred to as the recurring question: “At what stage did this end?”

In casu, so he submitted, because the statement was said after the deceased had seen a third party, there are dangers that the deceased had had time for reflection.

In my reading of R v Andrews [1987] 1 All ER 513, I was unable to locate the part of the report that specifically stipulated or referred to the procedure that he referred to and which he likened to the procedure of a trial within a trial (if I understood his submission correctly).

The facts in R v Andrews [1987] 1 All ER 513, as summarised in the headnote, are as follows:

“The appellant and another man knocked on the door of the victim's flat and when the victim opened it the appellant stabbed him in the chest and stomach with a knife and the two men then robbed the flat. The victim was found some minutes later. The police and they arrived very soon after. The victim, who was seriously wounded, told the police that he had been attacked by two men, gave the name of the appellant and the name and address of the other before becoming unconscious. He was then taken to hospital where he died two months later. At the trial of the appellant, for murder, the Crown sought to have the victim's statement to the police admitted in evidence. The trial judge ruled the statement was admissible. The appellant was convicted of manslaughter. He appealed to the Court of Appeal, contending that the victim's statement was inadmissible under the rule against the admission of hearsay evidence. The appeal was dismissed and the appellant appealed to the House of Lords.

Held – Hearsay evidence of a statement made to a witness by the victim of an attack describing how he had received his injuries was admissible in evidence, as part of the res gestae, at the trial of the attacker if the statement was made in conditions which were sufficiently spontaneous and sufficiently contemporaneous with the event to preclude the possibility of concoction or distortion. In order for the victim's statement to be sufficiently spontaneous to be admissible it had to be so closely associated with the event which excited the statement that the victim's mind was still dominated by the event. If there was a special feature, eg malice, giving rise to the possibility of concoction or distortion the trial judge had to be satisfied that the circumstances were such that there was no possibility of concoction or distortion.

However, the possibility of error in the facts narrated by the victim went to the weight to be attached to the statement by the jury and not to admissibility. Since the victim's statement to the police was made by a seriously injured man in circumstances which were spontaneous and contemporaneous with the attack and there was no possibility of any concoction or fabrication of identification, the statement had been rightly admitted in evidence. The appeal would accordingly be dismissed….,. Ratten v R [1971] 3 All ER 801 applied. R v Beddington (1879) 14 Cox CC 341 overruled.”…,.

I however found the following useful exposition by LORD WILBERFORCE in Ratten v R [1971] 3 All ER 801…, (a case cited by LORD ACKNER in his speech):

“The person testifying to the words used is liable to cross-examination: the accused person…, can give his own account, if different. There is no such difference in kind or substance between what was said and evidence of what was done (for example, between evidence of what the victim said as to an attack and evidence that he (or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and admission of the other.

The possibility of concoction or fabrication, where it exists, is, on the other hand, an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.

In their Lordships opinion, this should be recognised and applied directly as the relevant test: the test should not be the uncertain one, whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters, as the time which elapses between the events, and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria.

As regards statements made after the event, it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must, in principle, be true of statements made before the event. The test should not be the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But, if the drama leading up to the climax has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The expression 'res gestae' may conveniently sum up these criteria, but, the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges rulings.”…,.

His Lordship also referred to the case of O'Hara v Central SMT Co 1941 SC 363, where, at p381 the Lord President (LORD NORMAND) said that “there must be close association: the words should be, at least, de recenti and not after an interval which would allow time for reflection and concocting a story.” He further quoted LORD FLEMING, who, at p386, said:

“Obviously, statements made after there has been time for deliberation are not likely to be entirely spontaneous, and may, indeed, be made for the express purpose of concealing the truth.”…,.

He further pertinently states, at p808f-g:

“These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”…,.

And, at p809b:

“Facts differ so greatly that it is impossible to lay down any precise general rule: it is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but, whether this is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree that, amongst other things, he may take the statement itself into account.”…,.

Finally, at p808d, he stated as follows:

“…,. In an earlier case in the High Court (Brown v R (1913) 17 CLR 570) where evidence was excluded, ISAACS and POWERS JJ, in their joint judgment (at 597), put the exclusion on the ground that it was a mere narration respecting a concluded event, a narration not naturally or spontaneously emanating from or growing out of the main narration but arising as an independent and additional transaction.”…,.

In Principles of Evidence, 4ed (Juta) the learned authors, SCHWIKKARD and Van DER MERWE, under the heading “Res Gestae Statements” state that the phrase res gestae does not lend itself to any meaningful translation but that the phrase has developed a meaning in the law of evidence and is succinctly stated by CHOO (In Evidence (2012) 292) as follows:

“Evidence of facts may be admissible as part of the res gestae if these facts are so closely connected in time, place, and circumstances with some transaction which is at issue that they can be said to form part of that transaction.”

Under the subheading “Spontaneous Statements” the learned authors state, that, the reasoning behind the admission of spontaneous statements was that despite their hearsay nature, they are the product of an instinctive response and therefore less likely to be an invention or deliberate distortion. Furthermore, for the statement to be regarded as spontaneous it must be so closely linked to the event which gave rise to it that the presiding officer is able to conclude that the “event” dominated the mind of the declarant at the time of uttering the statement.

The learned authors further refer to the case of S v Tuge 1966 (4) SA 565 (A) wherein:

“[T]he court held that the following conditions needed to exist for a res gestae statement to be admitted into evidence:

(a) 'The original speaker must be shown to be unavailable as a witness';

(b) 'There must have been an occurrence which produced a stress of nervous excitement';

(c) 'The statement must have been made whilst the stress was still 'so operative on the speaker that his reflective powers may be assumed to have been in abeyance';

(d) 'The statement must not amount to a reconstruction of a past event.'”

Against the above backdrop of the position of the law relating to res gestae, I am unable to find fault with the manner in which the court a quo dealt with the issue of res gestae when it stated as follows:

“Res gestae should be applied taking into account the circumstances of each case.

In casu, the undisputed evidence was that the deceased screamed out and footsteps were heard proceeding to the tap, and, immediately on returning from the tap, the deceased made the accusation, that, the cause of the fiasco was the accused. To hold, as argued by the defence, that, the deceased should have exclaimed that the accused (by name) had burnt her at the time of the burning would be to adopt an armchair approach. The deceased named the accused at the first opportune time after she was no longer on fire. It cannot be said that there was no spontaneity in the exclamation.”

As with any other matter, each case must be decided on its own merits.

In casu, on a view of the evidence adduced before the trial court, and on a consideration of the manner in which the events unfolded, as well as the time frame within which it all happened, the court a quo cannot be faulted when it stated that:

“(I)t cannot be said that there was no spontaneity in the exclamation.”

As commented by LORD WILBERFORCE, at p806h-j:

“The reason why this is so (that is the application of different standards to the admissibility of the hearsay statement) is that concentration tends to be focused on the opaque or at least imprecise Latin phrase rather than on the basic reason for excluding the type of evidence which this group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that there may be uncertainty as to the exact words used because of their transmission through the evidence of another person than the speaker. The second is because of the risk of concoction of false evidence by persons who have been the victim of assault or accident.”

As to the actual words used by the deceased, the court a quo cannot be faulted for believing the State witnesses.

The appellant did not dispute the evidence of the State witnesses as to what was uttered whilst the witnesses were still in their room. He would naturally not have been able to challenge the witnesses as his evidence was that he could not make out what the deceased was saying as she was screaming. The witnesses said that they were awoken by the deceased's screaming out: “oh mother, I am dying!” as well as calling out to the first witness by the deceased.

Further, the appellant did not dispute that the deceased uttered the words attributed to her by the witnesses after she came back from the tap at the back of the rooms and soon after the fire on her had been extinguished.

The deceased had burn injuries, and, as a result, her undergarment was sticking onto her body.

It is at that stage in the unfolding drama that the deceased said that the appellant had poured paraffin on her and set her alight and that he had the match box on him.

As it turned out, the box of matches was recovered from the appellant when he was subjected to a bodily search by the police - albeit he had a different explanation for his possession of it.

The deceased also asked why the appellant had not also poured paraffin on himself as he had said that he wanted both of them to die.

According to Nyasha Tsopotsa, she also said to the appellant that he should finish her off as he had been tormenting or ill-treating her for a long time.

There is another consideration that buttresses the court a quo's assessment of the evidence that was placed before it.

Notably, it was the appellant's stance, that, all that the deceased said in the presence of the State witnesses were all lies.

By implication, the appellant's contention was that the deceased deliberately concocted a false story to his disadvantage.

It was thus the defence's argument that the said utterances ought not to have been accepted or admitted as part of the res gestae.

On this aspect, the trial court dispelled the risk of concoction on the view, that, to hold otherwise would be to adopt or take an armchair approach.

I find no misdirection by the court a quo in this regard on a view of the evidence that was placed before it.

The citation, by the defence, of the case of Thompson v Trevanion (1693) Skin 402 ER 179 does not, in my view, establish any misdirection by the trial court in this regard. I say so for the reason, as already stated earlier, that, it is trite that each case must be determined on its own merits.

In the appellant's heads of argument the following statement by HOLT CJ, in the cited case, is quoted:

“What the wife said immediate upon the hurt received, and before she had time to devise or contrive anything for her own advantage, might be given in evidence.”

The court was alive to the fact that it was dealing with circumstantial evidence, there being no independent witness to testify as to how the deceased ended up in flames.

It rightly drew the applicable legal principles as espoused in R v Blom 1939 AD 188 and followed in Zacharia Amos Simango v S SC42-14; Abraham Mbovora v S SC75-14.

The two cardinal rules on circumstantial evidence have been stated to be:

“1. The inference to be drawn must be consistent with all the proven facts.

2. The proven facts should be such that they exclude every possible inference from them save the one to be drawn.”

The court isolated the issue that needed to be answered by the circumstantial evidence, viz: “whether or not the deceased poured paraffin upon and burnt herself or it was the accused who set her alight after pouring paraffin on her.”

On the evidence that was placed before the trial court, there are certain baseline facts that stand out.

The appellant was the only person with the deceased in her room when she called out the first witness name and screamed. The deceased did not call for assistance from the appellant, whether on the appellant's evidence or on the evidence of the State witnesses. She called out to Tawanda Miti. The appellant himself, a frequent visitor to the premises, according to the evidence of the State witnesses, did not call out for help from the deceased's neighbours who he must have known to be in their own rooms. Thereafter, the deceased pointed to the appellant as the person who had doused her with paraffin and set her on fire.

Another notable aspect is that the appellant said that the deceased got dressed in a skirt and blouse when he indicated that he wanted to have a discussion with her. But, when the deceased was seen by her neighbours, when they reacted to her distress call, she was observed wearing only a petticoat that was now stuck to her body due to the burning.

There was no explanation by the appellant as to how the skirt that he found burning on the floor after he came back to the room had got there.

In the circumstances, I find no misdirection on the part of the court a quo when it found as follows:

“…,. The complainant was heard screaming and calling out to neighbours. She did not call out to the accused person. If, indeed, the deceased had burnt herself and the accused had nothing to do with it, assuming that she was crying out for help because of pain, she would have been expected to call out to the person who was nearest to and in her presence to assist her or come to her aide (sic). It was most improbable that the deceased would, in the process of seeking assistance, have reached for people far away from her.”

The court a quo correctly noted, that, the appellant came to visit the deceased in the dead of night and that he had a grievance that he wanted to raise with her about her reported behaviour. It was the trial court's finding that the appellant must have been incensed and that his interrogation of the deceased was unlikely to have been amicable as he wanted the court to believe. The trial court found the appellant's narration of events, as regards the deceased's reaction to his questions, to be “illogical and improbable to a point that it can safely be said not to have happened.” The court found it to be improbable, that, after she was asked as to why she went to bars in the absence of the appellant, she responded by pouring paraffin on herself and setting herself alight.

I find no misdirection in this finding by the court a quo.

In assessing the sufficiency of the circumstantial evidence that was placed before it, the court a quo drew guidance from, firstly, the cases of R v Sibanda & Others 1965 (4) SA 241 (R.A.) where…, BEADLE CJ, dealing with circumstantial evidence, stated as follows:

“The degree of certainty with which the individual facts must be proved, in criminal cases, must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt. It is sufficient if there are reasonable grounds for taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond a reasonable doubt.”

It also referred to S v Chabalala 2003 (1) SACR 134 (SCA) in which, at paragraph 15, the following is stated:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides; and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.

The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identification parade) was decisive but that can only be an ex-post facto determination, and, a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it within the context of the full picture presented in evidence.

Once that approach is applied to the evidence in the present matter, the solution becomes clear.”…,.

The findings made by the court a quo must be viewed against the trite position at law, that, as the trial court, it had the advantage of seeing and hearing the witnesses as they testified to the events of the night in question. That is an advantage that an Appellate Court does not have. An Appellate Court hears an appeal on the record and cannot disregard findings made a quo unless a reading of the record patently does not support such findings.

There is no patent misdirection in the findings of the court a quo discernible on a reading of the record.

The court a quo's finding, on the appellant's demeanour as a witness, has an important bearing on the determination of his guilt by the court, particularly in circumstances where the court had found that the State had established a prima facie case against him and that he had to be put on his defence.

Commenting on the appellant's demeanour, the court a quo stated:

“…, he showed some degree of annoyance and irritability when giving evidence and answers in cross-examination. The court got the impression that the accused considered the trial, and his being asked to give an account of events, as an unnecessary bother. He appeared not to be a concerned person with the proceedings - yet the victim was his second wife, as per his testimony.”

The accused's demeanour was adjudged not to be impressive.

This finding, on the appellant's demeanour, by the court a quo, is supported and borne out by a reading of the appellant's confirmed Warned and Cautioned Statement, his Defence Outline, and his testimony in court both in chief and in cross examination.

In the warned and cautioned statement, he said, that, after she had set herself alight, the deceased embraced him and he opened the door while she was still embracing him. When he opened the door, the fire “burned heavily” and she ran to the tap where “she poured some water on her” and he followed her and helped her to extinguish the fire.

In his Defence Outline, he said that after setting herself on fire the deceased “sought to embrace him intending to cause harm to him but he managed to slip away going out of the room.” He said that he also assisted the deceased to put out the fire by pouring some water on her at the water tap.

In his evidence before the court a quo, he said that the deceased wanted to grab him by the neck but she missed and grabbed hold of the upper arm of one hand. He further stated that she got “hold of me in an indication that she did not want to let me go. It was then that I also caught the fire such that I also suffered injuries. I realised that the fire was quite great and that my life was also in danger; that is when I decided to open the door whilst she was still holding me. I then advised her that she had to go to the tap so that I put out the fire. She get hold of me as we were by the door and she was now in front. When we got to the tap I instructed her to kneel down, I opened the tap and there was now water that was being poured on her head and all the body.”

The discrepancies in the extra-curial statement, the Defence Outline, and the evidence in court, in the respect highlighted above, cannot be missed. Significantly, the unexplained discrepancies relate to a stage in the unfolding events that only he could give clear evidence on.

He did not.

In the circumstances, I find no misdirection or error in the court a quo's assessment of the appellant's demeanour.

The issue that has been raised, in relation to the rejection of the appellant's defence by the court a quo must not be considered in isolation.

The court was obliged, as it rightly noted, to consider the totality of the evidence before it. Its reliance on the case of S v Isolano 1985 (2) ZLR 62 (SC), in this regard, cannot be faulted. Therein, LORD DENNING was quoted when he stated as follows in Miller v Minister of Pensions [1947] All ER 372 (KB):

“…, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. The degree is well settled. It need not reach certainty but it must carry a high degree of probability.

Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt - but nothing short of this will suffice.”

The court a quo found, that, on a consideration of the evidence before it, and having derived guidance from the authorities, the State had proved the appellant's guilt beyond reasonable doubt and it therefore convicted him of murder with constructive intent.

In the absence of misdirection by the trial court, there is no basis for this court to interfere with the conviction.

No submissions having been made in relation to sentence, this will be taken as a concession that the appeal against sentence has no merit. No basis has been established for interference with the same.

Consequently, it is thus found that there is no merit in this appeal. It is accordingly ordered as follows:

The appeal be and is hereby dismissed in its entirety.

SC69-21 : NEVERSON MWAMUKA vs THE STATE
Ruled By: MAVANGIRA JA

The appellant faces one count of robbery as defined in section 126(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He and accomplices allegedly conspired to rob a ZB Bank cash in transit truck that was transporting cash amounting to US$2,775,000 to the Bank's branches in Chinhoyi, Kadoma, Gweru, Bulawayo, Gwanda and Zvishavane.

He applied to be admitted to bail by the High Court. His application was dismissed by CHITAPI J on 16 February 2021. He thereafter petitioned the High Court, again, seeking to be admitted to bail on the basis of alleged changed circumstances. The application was dismissed by FOROMA J on 31 March 2021.

Aggrieved, he noted this appeal in terms of Rule 67(1) of the Supreme Court Rules, SI84/18 (the Rules). He prays that this Court admits him to bail.

In dismissing the first application, CHITAPI J found that the appellant was a flight risk as the police arrested him after having been tipped of his intention to leave the country. The appellant was said to have been arrested after being ambushed at a toll gate where he was found in possession of a substantial amount of money in United States dollars. Upon his arrest, he allegedly led to the recovery of US$48,000 which he could not account for and which was alleged to be his share of the crime proceeds.

In his reasons for judgment, CHITAPI J stated, inter alia:

“The second applicant is a demonstrated flight risk who was caught while in the process of leaving Harare. The applicant is not only a flight risk but his release on bail, given the serious uncontroverted allegations which were not challenged upon his remand, will undermine the objective and proper functioning of the criminal justice system and the bail institution.”

In his judgment, FOROMA J stated, inter alia:

“Despite these positive findings against applicant another attempt at getting his freedom was made by applicant on 18 February 2021 which was an application for bail pending appeal based on changed circumstances. That application was argued before me on 25 February. It was opposed by the respondent on the basis that there were no changed circumstances. I did not find any changed circumstances and accordingly dismissed the application.”

Before FOROMA J, the changed circumstances were alleged to be that because the investigating officer had since considered that the appellant's residential address, as indicated to the police by an informant, was incorrect, it therefore followed that the police's failure to locate the appellant at that address could not be support for the contention that the appellant was on the run or that he was a flight risk.

FOROMA J noted in his judgment that the alleged changed circumstance was placed before CHITAPI J and was therefore not indicative of any change in circumstances subsequent to CHITAPI J's judgment.

In Daniel Range v S HB127-04, the following was stated…,:

“In determining changed circumstances, the court must go further and enquire as to whether the changed circumstances have changed to such an extent that they warrant the release of a suspect on bail without compromising the reasons for the initial refusal of the said bail application.”

The court, in S v Brian Makanya HH15-15, had this to say:

“The applicant bears the onus to produce evidence which satisfies me that exceptional circumstances exist, which, in the interest of justice, permit his release. Even if I accept that there are new circumstances or changed circumstances, I am still obliged to consider all the facts before me, new and old, and, on that basis, decide whether the applicant is a good candidate for bail.”

The dismissal of the appellant's application before CHITAPI J was on the basis that he was a flight risk as demonstrated by the circumstances of his arrest. The issue of the wrong residential address was before CHITAPI J and he considered and dealt with it. It was not the reason for the denial of bail. The dismissal of the application was on the basis, primarily, that he had been arrested while in the process of fleeing. That is what swayed CHITAPI J to deny the appellant bail.

This aspect was also found to justify the different treatment that was received by the appellant's co-accused who were admitted to bail. Their circumstances differ materially from the appellant's in this respect.

It is trite that this Court will interfere with a decision of a judge of the High Court in a bail application only if the judge a quo committed an irregularity or misdirection or exercised his or her discretion so unreasonably or so improperly as to vitiate his or her decision: see Remember Moyo & Ors v The State SC106-02, citing with approval S v Chikumbirike 1986 (2) ZLR 145 (S)…,; S v Barber 1979 (4) SA 218 (D)…,.

On the facts related to above, I find no misdirection on the part of the court a quo in its dismissal of the application based on changed circumstances. None has been established. In the circumstances, the appeal has no merit.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed.

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the Private Voluntary Organisations Act [Chapter 17:05].

Aggrieved by the acquittal of both appellants on the first Count the respondent appealed to the High Court (the court a quo).

The court a quo, after full contest, found that the trial court erred and misdirected itself in that it misconstrued the facts in acquitting both accused. On the basis of such finding, it adjudged that the trial court ought to have found both accused guilty as charged. It thus upset the judgment acquitting the appellants and issued the following order:

“Accordingly, the court orders as follows:

1. The appeal against the acquittal of first and second respondents (now appellants) in CRB R856 succeeds.

2. The matter is remitted back to the trial court for sentencing.”...,.

FACTUAL BACKGROUND

The facts giving rise to both charges are hotly contested in the main. What is however not in dispute is that the complainant, Douglas Mamvura, was the owner of a company called Hedgehold Trading (Pvt) Ltd trading as Manna Brands.

On the other hand, the appellants were the owners of an agri-business styled Makonde Industries. The business was in financial distress and consequently under liquidation.

Desirous to revive their agri-business, the appellants approached the complaint with a proposal for Hedgehold Trading (Pvt) Ltd to buy the troubled agri-business and assume its liabilities. It was a term of the agreement that the complainant would allot the appellants shares in the company.

It was further proposed and agreed, that, because the complainant had a clean financial record with the Banks, he would be responsible for obtaining loans from his Bank, and other financiers, to fund the new joint venture agri-business under the style of Hedgehold (Private) Limited.

The complainant bought into the idea and it was agreed, that, as the sole financier of the new joint venture rebranded Hedgehold (Pvt) Ltd, he would be one of the Directors, Executive Chairman, and majority shareholder of the company. The other minority shareholders would be the two appellants and the late Chimbindi Fanuel. Open Tribe Foundation Trust was to be the fifth shareholder.

The initial CR2 allotted the company's shares as follows:

1. Douglas Mamvura (Complainant) 75%
2. Tangwena Israel (1st Appellant) 11%
3. Muocha Tonderai (2nd Appellant) 5%
4. Chimbindi Fanuel (late) 5%
5. Open Tribe Foundation Trust 4%

It is common cause that the fifth shareholder, Open Foundation Trust, was unregistered. Its object was nevertheless to cater for the welfare of underprivileged orphans, widows, HIV and AIDS victims.

This forms the basis of the second allegation against the appellants, which is however not relevant to this appeal.

In pursuit of the agreement, the complainant mortgaged his home and various other properties, including his wife's car, to raise a total of US$350,000 which he ploughed into the agri-business. The business venture kick-started with the complainant closely guarding his investment for fear of losing his mortgaged properties and investment.

The learned judge in the court a quo found that the strict administrative measures adopted by the complainant must have unsettled the other Directors, thereby generating conflict and irreconcilable differences.

The conflict culminated in the minority Directors locking out the complainant.

They eventually filed a new CR2 with the Registrar of Companies in a bid to strip the complainant of all his rights and interest in Hedgehold (Pvt) Ltd.

Despite their concerted endeavour to terminate their business relationship with him, they continued to hold onto his investment to his exclusion and detriment.

In a bid to achieve their fraudulent scheme, the appellants are alleged to have crafted and filed fraudulent CR2, CR11 and CR14 documents with the Registrar of Companies to divest the complainant of his Directorship and shareholding in Hedgehold (Pvt) Ltd.

The appellants denied the allegations of fraud both in the Magistrates Court and in the court a quo on appeal.

THE ISSUES FOR DETERMINATION

The appellants attacked the court a quo's judgment on both procedural and substantive grounds.

The grounds of appeal however raise one crisp issue for determination. The single issue for determination is: whether or not the court a quo correctly found the appellants guilty of fraud as charged.

WHETHER OR NOT THE COURT A QUO CORRECTLY FOUND THE APPELLANTS GUILTY OF FRAUD AS CHARGED

The appellants challenged their conviction on the basis that the respondent failed to discharge the onus of proving the essential elements of fraud beyond reasonable doubt.

Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the definition and essential elements of fraud as follows:

“136 Fraud

Any person who makes a misrepresentation -

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:

(i) A fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or

(ii) Imprisonment for a period not exceeding thirty-five years; or both.”

The Criminal Law (Codification and Reform) Act defines the offence of fraud in simple though somewhat frosty and verbose language, such that it needs further elucidation to give effect to the intention of the lawmaker.

In plain layman's language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person.

The intention of the legislature, in section 136 of the Criminal Law (Codification and Reform) Act, was to proscribe and punish theft by deceitful means.

In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows:

1. Making a misrepresentation to another person.

2. With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.

Section 136 of the Criminal Law (Codification and Reform) Act is couched in broad terms encompassing a situation where the misrepresentation is made to a person other than the subject of the intended prejudice. To constitute fraud, it is sufficient that a misrepresentation is made to any person with the intention of causing any other person actual or potential prejudice.

In casu, it does not therefore matter that the misrepresentation was made to the Registrar of Companies with the intention of causing prejudice to the complainant.

It is plain from the evidence led in the trial court that the appellants completed and submitted the alleged fake fraudulent CR2 document dated 23 January 2013. The alleged fake CR2 form now reflects that all the shares in Hedgehold (Pvt) Ltd were allotted to Open Tribe Foundation Trust on 25 January 2013. The State alleged that the fake CR2 was backed up by an equally fraudulent special resolution of Hedgehold (Pvt) Ltd crafted in the following terms:

“IT WAS RESOLVED THAT:

1. Cancellation of CR2

That the unauthorised CR2 which sought to change the ownership of the company in contravention of paragraph 4 and 5(b) of the company's Articles of Association be amended and replaced.

2. Allotment of shares

That the un-issued shares in the company, being 1,870 (one thousand eight hundred and seventy) shares of 1 (one) dollar each, be allotted in full to Open Foundation Trust Trading and that a form CR2, share allotment form, giving effect to the allotment be lodged with the Registrar within the prescribed time.”

The effect of the amended CR2 form was to deceitfully strip and divest the complainant of his entire shareholding and huge investment in Hedgehold (Pvt) Ltd to the tune of US$350,000 without his consent.

We therefore find no merit in the appellants complaint that the court a quo misdirected itself in substituting its own discretion for that of the trial court. This is because the trial court's acquittal of the accused, in the face of overwhelming evidence, was irrational and grossly unreasonable.

In Chiodza v Siziba SC04-15…, relied upon by the appellants, this Court held that:

“The general rule regarding factual findings made by a trial court is that they will not be upset by an Appellate Court unless there had been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”

In this case, the basis of the court a quo's interference was the failure by the magistrate to appreciate the full extent of the State's case and the evidence on record leading to a failure of justice.

The court a quo found that there was clear, cogent expert evidence establishing, beyond reasonable doubt, that the documents admittedly crafted and presented to the Registrar of Companies by the appellants, to the prejudice of the complainant, were fraudulent.

A perusal of the record of proceedings shows that the learned judge a quo's remarks, at p10 of the cyclostyled judgment, to the effect that the trial magistrate strangely went out of his way to justify the fraudulent acts of the appellants, are beyond reproach.

That being the case, the court a quo cannot be faulted for finding that the trial court misdirected itself in acquitting the appellants in the face of overwhelming evidence establishing the accused's guilt.

DISPOSITION

That the State proved the accused's guilt beyond reasonable doubt is beyond question. For that reason, the appeal can only fail.

It is accordingly ordered that the appeal be dismissed.

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

The appellant and another, who is not a party to this appeal, appeared before the High Court sitting at Harare, charged with one count of murder.

After a contested trial, they were found guilty of murder with actual intent and were sentenced each to 25 years imprisonment.

It was the finding of the court a quo, that, on 11 March 2011, they had unlawfully and intentionally caused the death of one Alneshto Bayeta by pushing him down a steep slope into Marongora Game Park which is infested with wild animals.

This is an appeal against both the conviction and the sentence.

Background Facts

The appellant, then aged 20, and his co-accused, not much older, were working in Chirundu, digging trenches for a telecommunications corporation. When the contract ended, the two survived on odd jobs for some time thereafter. They soon ran out of money and planned to steal a vehicle.

On 11 March 2011, they approached the deceased, who was working as a taxi driver, driving a vehicle belonging to one Leonard Mhundwa, and purported to hire the vehicle to Chirundu Heights. This was around 9:00pm.

On the way to Chirundu Heights, they robbed the deceased of the vehicle and tied him up before placing him in the back of the vehicle. They then drove along the Harare-Chirundu Road, and, at a certain spot where the Marongora Game Park slopes steeply from the road, stopped the vehicle and there left the deceased.

When the deceased did not return with the vehicle at the appointed time, Leonard Mhundwa, the owner of the vehicle, lodged a report with the police. Investigations led to the arrest of the appellant and his co-accused who were found in possession of the motor vehicle.

After the arrest of the appellant and his co-accused, a search for the body of the deceased was conducted around the spot at which the appellant and his co-accused had left the deceased. The search was conducted with the assistance of armed Rangers from the Department of Parks and Wildlife who know the area to be infested with wild animals.

Some 20 metres down the slope, a spoor showing that something had been dragged along was observed going down the slope. Along the spoor, torn and blood-stained clothes and sandals belonging to the deceased were recovered.

The body of the deceased was not.

Presuming the death of the deceased, at the time of the trial, as the only reasonable inference that could be drawn from the facts, the court a quo found the appellant and his co-accused guilty of murder and sentenced them as stated above.

The Appeal

Aggrieved by the conviction and the sentence, the appellant noted this appeal raising five grounds of appeal.

In the first three grounds, he challenged the admissibility into evidence of a warned and cautioned statement that he made to the police upon his arrest.

It was his argument that the court a quo erred in admitting the statement into evidence in the face of clear evidence that he had not made the statement but that he was given the statement by the police to sign.

He further argued, that, the statement was irregular as it was “re-taken” on the orders of the confirming court after that court had declined to confirm the first statement.

In his view, apart from the confession in the statement, there was no evidence implicating him in the commission of the crime.

As against the conviction proper, the appellant challenged the sufficiency of the evidence against him arguing that the court a quo drew improper inferences that he had committed the crime.

Finally, he argued that the sentence imposed upon him was severe and induced a sense of shock.

From the above grounds, three issues arise for determination in this appeal. These are;

(i) Firstly, whether the appellant's warned and cautioned statement was correctly admitted into evidence;

(ii) Secondly, whether the appellant was properly convicted of murder; and

(iii) Finally, whether the sentence imposed on the appellant is severe and induces a sense of shock....,.

Whether the confirmed warned and cautioned statement by the appellant was admissible evidence

The appellant and his co-accused were arrested on 1 April 2011. Four days later, on 5 April 2011, the investigating officer recorded a statement from the appellant after duly warning and cautioning him on his rights.

On 12 April 2011, the appellant was taken before a magistrate for the confirmation of the statement. He successfully challenged the confirmation of the statement on the basis that the statement was not his and that he had not made it voluntarily.

The confirming magistrate correctly declined to confirm the statement.

However, without citing any law for his decision, the magistrate thereafter ordered the appellant and the investigating officer to record a second statement.

The second statement was recorded the following day and was confirmed on the same date.

In challenging the second statement during the trial a quo, the appellant alleged, that, he had been threatened by the investigating officer with assault if the second statement was once again not confirmed. He thus did not inform the confirming magistrate that the statement was not his but that it was merely presented to him for signing.

It appears that the court a quo was not quite clear on the steps to take in dealing with the challenge.

The admissibility of the statement was challenged in the Defence Outline and orally in court when the prosecution tendered the statement with the other exhibits at the commencement of the trial.

In a terse, but correct ruling, the court a quo provisionally admitted the statement into evidence with the other exhibits and placed an onus on the appellant to rebut the admissibility of the statement.

The court was correct in provisionally admitting the statement into evidence, as, on its face, there was nothing irregular.

During the State case, the investigating officer gave evidence on how he had recorded the statements from the appellant, and, during his evidence-in-chief, the appellant in turn gave evidence on how the statement was taken.

He maintained his stance that the statement was not his as certain portions of it were insertions by the police.

In the main judgment, the court a quo held, that, the appellant, through his counsel, had withdrawn his objection to the admission of the statement into evidence.

This was contrary to the evidence on record.

And, to confirm the uncertainty that the court a quo appears to have been operating under regarding what to do with the challenge to the statements, it initially held that it was unnecessary for it to establish whether or not the second statement had been voluntarily made by the appellant as the appellant had withdrawn his objection to the admission of the statement.

Moments later, it observed that:

“Although the warned and cautioned statements were produced by consent after the accused had withdrawn their objections, it is in my view necessary to deal with the accused's evidence of the alleged duress because of the continued reference to the statements by the accused persons. Mr Mushonga submitted that the accused were not challenging the confirmation of the statements per se but the decision by the magistrate to confirm a new set of statements.”

The court then proceeded to find that the appellant had not been unduly influenced in making the statement.

The law on the admissibility of confirmed statements is codified. It is settled.

Section 256(2) of the Criminal Evidence Act [Chapter 9:07] provides that a confession or statement made by an accused person and confirmed before a magistrate following the procedures laid down in section 113(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is admissible in evidence before any court upon its mere production by the prosecutor without further proof.

However, the confession or statement shall not be used as evidence against the accused if he proves that the statement was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto.

In a long line of decided cases, the steps that a court must take where an accused person challenges a confirmed warned and cautioned statement is settled. It is this:

Where the accused raises a potentially sustainable challenge to the propriety of the confirmation proceedings, the court is obliged to determine the validity of that challenge as a separate issue of fact.

The onus is on the State to prove the absence of any irregularity.

If the State discharges the onus, the statement is provisionally admissible and the onus shifts to the accused to rebut the presumption that the statement is admissible.

The onus of proof, on the accused, is to prove, on a balance of probabilities, that, the statements are inadmissible.

If the accused's challenge is upheld, the onus remains on the State to prove, beyond a reasonable doubt, that the accused made the statement and that he made it freely and voluntarily: see S v Woods 1993 (2) ZLR 258 (SC); S v Slatter and Others 1983 (2) ZLR 144; S v Manukwa and Others 1982 ZLR 30 (SC); and S v Gwaze & Anor 1978 RLR 13…,..

Against the yardstick set by the above authorities, the court a quo erred in many respects which I will not fully go into.

Primarily, as this was its ratio decidendi, the court a quo erred in holding that the appellant had withdrawn his challenge to the statement.

The record indicates that the appellant consistently denied having made the statement which he alleged was a confession to the offence.

The court a quo was aware, that, right up to the end, the appellant challenged the statement attributed to him. He thus “continued to make reference” to the irregularity of the statements throughout the trial as rightfully observed by the court a quo in its judgment.

In the absence of consent to the admission of the statement, the court a quo had to make a finding of fact on whether or not the statement was admissible evidence.

This it did not do.

I must make the point, that, contrary to the finding by the court a quo, that the confirming magistrate did not err in directing the police to record a statement from the appellant afresh, the recording of the second statement from the appellant was irregular and must be set aside.

The court a quo was of the view, that, since the appellant had not advanced any law that precluded the recording of the statements afresh, the order by the magistrate was proper.

Such a law is easy to find and ought to have presented itself to the court a quo.

The recording of extra curial statements from the accused is part of the investigation of the alleged crime. It is an exercise that falls wholly within the domain and discretion of the police. They, and not the court, elect whether or not to record a statement from the accused.

In our legal system, which is adversarial, and the magistrate or judge is a neutral umpire, the magistrate, or judge, has no role or place in the investigation of matters that come before the court.

Therefore, he or she cannot direct the investigation of the alleged crime at any stage.

It matters not that he or she will not tell the accused person on what to say in the statement as was contended by the court a quo. The bottom line is that the court has no power, whatsoever, to direct the police to record a statement from the accused person at any stage of the investigations or of the trial.

It is thus over-reaching of grave proportions for confirming magistrates to direct the police to record second statements from accused persons after declining to confirm the first statement.

Even if the statement that is eventually recorded from the accused is exculpatory, the bottom line is that a directive by the court, to the police, to record a statement from the accused is grossly irregular and so is the statement that is recorded pursuant to such a directive.

I note, in passing, and for the benefit of the Chief Magistrate, that, the directive to the police by the confirming magistrate in casu appears similar to one that was issued by the confirming magistrate in Mangoma v S SC36-20 in which this Court also set aside the statement.

The police may feel obliged to comply with such directives which not only have no basis in law but may violate the rights of an accused person to a fair trial.

I do not think that it is necessary to burden this judgment with a discussion on whether or not there is a law that precludes the police from recording a second set of statements from an accused person after the confirmation of the first has been declined.

It however presents itself clearly to me that the recording of a statement from an accused person by the police, whether first or subsequent, at the instance of, and in fulfilment of a directive of the court, is grossly irregular.

It is therefore my finding that the court a quo erred in admitting into evidence the statement by the appellant on the basis that it was adduced by consent.

There was no such consent.

Had the court a quo followed the approach laid out in the authorities cited above, it would have found, as I do, that the recording of the statement was irregular as it was at the instance of the court.

The confirmed statement by the appellant, dated 13 March 2011, must be struck off the record, and, any reference to its contents be expunged from the evidence.

The finding that I make above must apply with equal force to the statement made by the appellant's co-accused on the same date. This is so notwithstanding that he is not a party to this appeal. His statement was recorded in similar irregular circumstances.

I now turn to the second issue.

This is whether, after expunging from the record the evidence that was in the statements by the appellant and his co-accused, there remains sufficient evidence implicating the appellant in the murder of the deceased.

Whether the appellant was properly convicted of murder

The appellant and his co-accused were charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The section defines murder in the following terms:

“47 Murder

(1) Any person who causes the death of another person -

(a) Intending to kill the other person; or

(b) Realising that there is a real risk or possibility that his or her conduct may cause death; and continues to engage in that conduct despite the risk or possibility, shall be guilty of murder.”

Thus, under the section, it is not necessary, as was the position under the common law, to find the accused guilty of murder with either actual intent or with constructive intent. Put differently, it is not necessary under the Criminal Law (Codification and Reform) Act (the Code) to specify that the accused has been convicted under section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act.

Killing or causing the death of another person with either of the two intentions is murder as defined by the section.

It further appears to me, that, the distinction between a conviction of murder with actual intent and murder with constructive intent, which, under the common law, greatly influenced the court in assessing sentence, is no longer as significant or material as it was.

The sentence to be imposed for murder committed with the intent, specified in section 47(1)(a) or (b) of the Criminal Law (Codification and Reform) Act, has also been codified as I shall show below.

In framing his fourth ground of appeal, which gives rise to the issue under discussion, the appellant had this to say:

“4. The court erred in adopting an armchair approach in adopting and applying the circumstantial evidence doctrine and make unsubstantiated inferences which are not supported by evidence that the appellant killed the now deceased. The appellant had no intention to kill or to cause whatever harm to the now deceased. The now deceased drop off (sic) alive and unharmed at Marogoro (G)ame (P)ark after the boom gate.”

I temper down my criticism of the inelegant manner in which the ground was framed in recognition of the fact that the appellant noted this appeal in person and counsel took over the matter at a later stage.

Before the hearing of the appeal, counsel could, however, have amended the ground to make it conform to the rules of this Court in terms of clarity and precision.

Nothing, however, turns on this.

I understood the ground to be an attack on the finding a quo that the appellant and his co-accused had killed the deceased with actual intent.

During the hearing of the appeal, counsel for the appellant made two concessions which have a direct bearing on the second issue in this appeal.

(i) Firstly, he conceded, that, the court a quo properly found, on the evidence that was before it, that notwithstanding that his remains were never found, Alneshto Bayeta was dead at the time of the trial.

(ii) Secondly, he conceded, that, the only reasonable inference that could be drawn from the facts of this appeal is that the deceased died after being left by the appellant and his co-accused in the game park.

He thus conceded that the deceased died at the hands of the appellant and his co-accused.

He however urged us to find the appellant guilty of murder with constructive intent at most or guilty of culpable homicide, instead of guilty of murder with actual intent as was found by the court a quo.

Both concessions were properly made.

The facts that are common cause in this appeal, and which I captured in the background to this appeal above, come largely from the appellant and his co-accused.

In explaining their possession of Leonard Mhundwa's motor vehicle, the appellant and his co–accused gave the only account that is before the court of what happened from the time they purported to hire the deceased's vehicle in Chirundu to the point where they left him, 42 kilometres away, on the Harare-Chirundu Road in the middle of the game park.

It is common cause, that, when they hired him, Alneshto Bayeta was alive.

He has not been seen since.

His torn and blood stained clothes were recovered along a spoor down a slope in an animal-infested game park.

The only reasonable inference, in part, to be drawn from these facts, is that Alneshto Bayeta is dead.

It is on the above basis that I accept the first concession by the appellant's counsel as having been properly made.

Alneshto Bayeta is dead.

It is further common cause that the remains of Alneshto Bayeta were never recovered. The precise cause of his death will remain unknown.

What is common cause, however, as indicated above, is that he was alive at the time the appellant and his co-accused robbed him of the vehicle that he was driving.

He died thereafter.

The appellant and his co-accused admit to setting in motion a series of events that caused the death of Alneshto Bayeta.

There was direct evidence before the court a quo that the deceased's blood-stained and torn clothes were found along a spoor that started 20 metres down the slope where the appellant and his co-accused admit leaving the deceased.

The inference by the court a quo, that it was the body of the deceased that was dragged along the spoor, cannot be faulted.

The fact that the spoor started some 20 metres down the slope has exercised my mind to a large extent.

What reasonable inference is to be drawn from this fact other than that the deceased, or his body, was thrown 20 metres down the slope?

The possibility that the deceased may have wandered down the slope in the darkness after being ejected from the car is not only fanciful but is also born of my own imagination as the appellants did not so argue.

I reject it.

The only reasonable inference that one draws from the starting point of the spoor down the slope is that the deceased, or his remains, were thrown 20 metres down the slope.

It is therefore my finding, that, beyond reasonable doubt, the deceased, or his remains, were thrown 20 metres down the steep slope.

Quite apart from the finding that I make above, and in addition thereto, there is no disputing the fact, that, in all that they did on the night in question, the appellant and his co-accused must have realised that there was a real risk or possibility that their conduct might cause the death of the deceased, and, notwithstanding that risk or possibility, continued with such conduct.

The appellant's counsel has submitted that the appellant acted “recklessly.”

The appellant's conduct went beyond “recklessness” or gross carelessness.

He must have realized and foreseen the real risk or possibility of death arising from his conduct right from the time he and his co-accused robbed the deceased of the motor vehicle. He did not desist from such conduct at any stage.

It is on the basis of the above that the concession by the appellant's counsel, that the appellant and his co-accused be found guilty of murder “with constructive intent”, inapplicable as that verdict may be, was properly made.

By the same token, having accepted that the appellant acted recklessly in causing the death of the deceased, the submission that the appellant be found guilty of culpable homicide becomes untenable and must be rejected.

It is therefore my finding, that, on the evidence that was common cause, and without in any way relying on the appellant's warned and cautioned statement, the appellant and his co-accused were properly convicted of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

I now turn to the final ground of appeal in this matter.

It is the challenge to the severity of the sentence that was imposed on the appellant.

Whether the sentence imposed on the appellant was severe and induces a sense of shock

The ground of appeal attacking the severity of the sentence is framed as follows:

“Ad Sentence

The court a quo erred by imposing a sentence which was so manifestly severe as to induce a sense of shock considering the following:

(a) The learned judge erred in paying lip service to the vast mitigating factors proffered by the appellant.

(b) The learned judge erred by not discounting sentence after making a finding that the appellant was a youthful first offender.

(c) The learned judge erred in passing a sentence, which, instead of rehabilitating the accused persons, it breaks them.

(d) The learned judge erred by failing to consider that the accused person were youthful offenders who still need to explore vast opportunities in life if given proper rehabilitation, can be integrated into the society.”

The sentence that a court convicting an accused person of murder under section 47(1) of the Criminal Law (Codification and Reform) Act (the Code) has also been codified under subsection (4) which provides that:

“(4) A person convicted of murder shall be liable -

(a) Subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9.07], to death, imprisonment for life, or imprisonment for a period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3)….,.”

Sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] provide for sentences following a conviction of murder and the persons upon which the death penalty may not be imposed respectively.

They are of no direct application in this appeal.

I note that no attempt was made to link the challenge to the sentence imposed on the appellant to the above provisions of the Criminal Law (Codification and Reform) Act (the Code).

Instead, the ground of appeal, and the oral argument, proceeded as if the sentencing discretion of the court a quo was at common law.

Thus, there was no argument before us that the murder of the deceased in this appeal was not committed in aggravating circumstances to warrant the sentence that the court a quo imposed.

Indeed, this would have been an untenable submission to make in the circumstances of this case where it is common cause that the murder was committed in the course of and to facilitate a robbery.

The law takes a very dim view of a murder committed during the course of a robbery.

In addition to the numerous case decisions on the matter, the Criminal Law (Codification and Reform) Act (the Code) lists murder committed during a robbery as murder committed in aggravating circumstances.

We thus have no basis for interfering with the sentence imposed by the court a quo as it falls within the provisions of section 47(4) of the Criminal Law (Codification and Reform) Act (the Code) for a murder committed in aggravating circumstances.

Disposition

The appellant has been successful in challenging the admissibility of his warned and cautioned statement and in setting aside the finding by the court a quo that the murder of the deceased was committed with actual intent. He has not, however, succeeded in setting aside his conviction and the sentence that was imposed on him.

The net result is that his appeal, being an appeal against conviction and sentence, must be dismissed.

In the result, I make the following order:

The appeal against conviction and sentence is dismissed.

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

It is trite that an Appellate Court is slow to interfere with the factual findings of a lower tribunal.

The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC47-09 as follows:

“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

See also Zvokusekwa v Bikita Rural District Council SC44-15.

In Zimre Property Investments Ltd v Saintcor (Pvt) Ltd t/a vTrack & Anor SC59-16…, it was held that:

“The position is now settled, that, an Appellate Court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the Appeal Court will not interfere. This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At 670, KORSAH JA remarked:

'The general rule of 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…,.'”

It is also an established principle that an Appellate Court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of Gumbura v The State SC78-14…, where the Court remarked as follows:

“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.”...,.

The test for the proper use of circumstantial evidence was laid down in R v Blom 1939 AD 188…, (quoted with approval in Moyo v The State SC65-13) where it was stated:

“In reasoning by inference, there are two cardinal rules of logic which cannot be ignored:

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

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

A court intending to rely on such evidence must ask itself a few questions:

The first one is what the proved facts are....,.

The point was made in Minister of Safety and Security and Others v Craig & Others NO 2011 (1) SACR 469 (SCA)…, where the following was stated:

“Although courts of appeal are slow to disturb findings of credibility, they generally have greater liberty to do so where a finding of fact does not essentially depend on the personal impression made by a witness demeanour, but predominantly upon inferences and other facts, and upon probabilities. In such a case, a court of appeal, with the benefit of the full record, may often be in a better position to draw inferences.”

SC75-14 : ABRAHAM MBOVORA vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

In S v Woods Ors 1993 (2) ZLR 258 (S)…, the following was stated:“In deciding whether or not extenuating circumstances exist which allow of the imposition of a sentence other than death, the trial court exercises what is essentially a moral judgment. On appeal, this Court cannot substitute ...

SC114-21 : TONGAI JINDU vs THE STATE
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018.At the conclusion of hearing of the appeal we dismissed the ...

This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018.

At the conclusion of hearing of the appeal we dismissed the appeal against both conviction and sentence. We indicated that reasons will follow in due course. These are our reasons.

FACTUAL BACKGROUND

The appellant was arraigned before the High Court (court a quo) sitting at Bulawayo facing two counts of murder committed in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the Code) in aggravating circumstances.

The allegations were, that, in January 2017, on two separate dates, the appellant shot and killed Mboneli Joko Ncube and Cyprian Kadzurunga who were his friends.

In the first Count, on 12 January 2017, the appellant picked up his neighbour Mboneli Joko Ncube and one Terence Kajese outside Alasko Supermarket at the corner of Robert Mugabe Way and 11th Avenue in Bulawayo. The appellant was driving his Nissan Gloria motor vehicle registration number ACV 8914. The appellant drove with the two to Burnside where he dropped off Terence after which he drove to Hillside Shopping Centre with Mboneli. The two thereafter drove to number 13 West Mount Road, Burnside, Bulawayo, where, upon arrival, the appellant drew an Optima shotgun serial number 13752 from his motor vehicle and shot Mboneli Joko Ncube twice on the chest.

The deceased died on the spot

After gunning down the deceased, the appellant mutilated his body into various parts before burying some of the dismembered parts in four different shallow graves at that property. He took some of the parts away.

On the second Count, the allegations were that, on 29 January 2017, in the afternoon, the appellant visited the deceased at his home in Queenspark, Bulawayo. The two then left that home on a walk as friends. As the two were walking along a footpath linking Glengary and Queenspark East in Bulawayo, the appellant, again, armed with the same Optima shotgun which he used to shoot Mboneli Joko Ncube, shot Cyprian Kadzurunga twice on the head and abdomen causing his death.

Thereafter, the appellant robbed the deceased of his LG cell phone and Asus laptop which items he later tasked another individual to sell.

The appellant then ferried the body of the deceased in a wheelbarrow to his motor vehicle where he bundled the body into the boot of his motor vehicle before driving to number 13 West Mount Road, Burnside, Bulawayo. When he arrived there, he again buried the body at that address after hiring two individuals to dig a shallow grave which he misled them to believe was for other innocuous purposes. The appellant also took some body parts before burying the body in the shallow grave.

The appellant's defence was to the effect, that, when he killed both deceased persons, he was drinking alcohol, injecting himself with heroine, and also taking crystal meth. It was his defence that he was intoxicated during the commission of the offences.

In the first Count, as he was in the company of the deceased he felt an urge to kill someone and he was of the belief that if he did so he would get crazy. He also indicated, that, after committing the second offence, under the alleged intoxication, he later became sad and regretful for what he had done.

In its detailed analysis of the evidence, the court a quo found, that, the appellant had given contradictory testimony.

In respect of the first Count, the account given in his Defence Outline differed materially from the one he gave in his evidence in chief.

In his evidence in chief, he stated, that, he went to the shops to meet a drug dealer from whom he got heroine and crystal meth. He wanted a convenient, discreet place to take the drugs and the deceased advised him to go to Number 13 West Mount Road, Burnside, Bulawayo where he claimed he then took the drugs and got high.

He claimed, that, after taking the drugs, he started seeing “Lucifer” who then instructed him to kill the deceased, cut up the body, and consume the liver.

He went on to say, that, he did a number of things upon Lucifer's command. It was no longer his own desire to get crazy upon killing someone - per his Defence Outline.

Similar contradictions were noted in respect of the second Count.

He now said he was working under the command of Lucifer - yet this was not in his Defence Outline.

The court a quo also noted, that, under cross examination, the appellant refused to answer critical questions alleging that he had made a pact with Lucifer never to tell anyone.

The court a quo also noted, that, it was not in dispute that the appellant shot and killed the two deceased persons. His only defence was that he did it upon the devil's instruction and he was under the influence of drugs hence his claim that he was mentally unstable at the material time.

The insanity defence was thrown out on the basis, that, the appellant was examined, on 16 November 2017, at the instance of the court itself, and the medical practitioners who examined him concluded that he was fully alert and oriented in all aspects; and that he was mentally stable and fit to stand trial.

The court a quo threw out the appellant's defence and found him guilty of murder with actual intent.

It found, that, the murders were committed in aggravating circumstances that immensely outweighed the mitigatory circumstances. It sentenced him to death in terms of section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as read with section 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07].

As regards his mental state at the time of the commission of the offences, the court a quo held, that, the meticulous planning and execution of the crimes by the appellant pointed to a person who was in full control of his mental faculties.

Aggrieved by the findings of the court a quo, the appellant lodged the present appeal on a single ground alleging that the court a quo erred and seriously misdirected itself in convicting him on two Counts of murder when there was cogent evidence that he was mentally incapacitated to appreciate the implications of his actions at the material time of committing the said offences.

THE ISSUE FOR DETERMINATION

Whether or not the court a quo erred and misdirected itself in not finding that the appellant was mentally incapacitated at the time of commission of the offences.

APPLICATION OF THE LAW TO THE FACTS

The issue of the appellant's mental capacity to stand trial was determined by the court a quo after ordering that he be examined. Both medical practitioners determined that he was of sound mind.

However, it was the appellant's submission, on appeal, that, the court a quo should have assessed whether he was mentally sound at the time of commission of the offences and not whether he was mentally stable to stand trial.

Counsel for the appellant submitted, that, the circumstances in which the appellant caused the death of the two deceased persons were out of the ordinary or expected human behaviour, and, as such, show that he suffered from mental incapacity at the time of commission of the crimes.

Per contra, counsel for the respondent submitted, that, the essential elements for the offences were proven.

Counsel further submitted, that, where one relies on the defence of insanity, the burden rests on him/her to prove that he/she suffered from mental incapacity at the relevant time in terms of the proviso to section 18(4) of the Criminal Law (Codification and Reform) Act (the Code).

In casu, counsel submitted, that, the appellant failed to place such evidence before the court a quo.

Counsel contended, that, a mere say so of one's lack of mental capacity does not suffice, and that, in terms of the proviso to section 225 of the Criminal Law (Codification and Reform) Act (the Code), a verdict that a person was mentally disordered will not be returned if the person's mind was only temporarily disordered or disabled by the effects of alcohol or a drug.

The record of proceedings shows, that, the court a quo ordered that the appellant's mental capacity be examined which resulted in the two medical reports that were placed before it. The reports confirmed that the appellant was of sound mind and fit to stand trial.

Further to the medical reports, the court a quo made factual findings which supported the position that the appellant was of sound mind when he committed the said crimes.

It found, that, after killing the first deceased, the appellant hid the body at the property after which he drove about 15 kilometres to Glengary suburb, Bulawayo. He also went to the deceased's home to look for him so that he could throw off suspicion. He then sent an sms (text message) to the deceased's relative using the deceased's mobile phone number, pretending to be the deceased, informing them that he was fleeing from the police to South Africa. He did this, again, to distance himself from the crime. He dug graves to hide the dismembered body parts showing that he was fully aware of his actions.

On Count Two, after killing his victim, the appellant drove all the way to town to pick up two people to assist him to dig the grave and lied to them, that, he needed a dump pit. Later, the appellant hired another person to fill up the pit and lied to him that the pit was abandoned by plumbers who were working there. He then asked this individual to sell the deceased's laptop instead of selling it himself in order to distance himself from the offence. He again sent an sms (text message) to the second deceased's mother, pretending to be the second deceased, informing her that he was fleeing from members of the army who wanted to kill him because of some sensitive information he had hence he was going to South Africa.

The act of sending messages to his victims relatives was aimed at ensuring that the families of the deceased persons would not look for the deceased believing that they had fled to South Africa.

The appellant also lied to the police and misled them about his contact with the second deceased.

Before being charged with the crimes, the appellant attempted to escape from police custody upon realising that his cover was about to be blown.

The above sequence of events shows that the appellant had planned to commit the offences.

He carefully chose his victims, led them to isolated places where he killed them and buried parts of their remains that he had no use for at the same property where he was the caretaker.

He cannot be taken to have been mentally incapacitated in the circumstances. His mental faculties were fully functional.

What is more condemnatory or damning is the fact that the appellant executed the offences and cover-ups over a number of days. He could not have been under the influence of drugs at all material times.

Assessed cumulatively, the appellant's actions point to the fact that he executed the offences with craftiness and precision.

From taking the gun from his mother's place, hiding the bodies, hiring help, looking for the first deceased after killing him, to sending messages to the deceased's relatives pretending to be the deceased persons all point to meticulous planning by someone of sound mind.

I am of the view, that, this illustrates the point that the appellant was in full control of his senses when he executed the crimes. In that light, the court a quo cannot be faulted for finding, in the face of such overwhelming evidence before it, that the appellant was mentally stable at the time of committing the crimes.

It is a settled position of the law that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense, that, no reasonable tribunal, applying its mind to the same facts, would have arrived at the same conclusion; or the lower court had taken leave of its senses; or the decision is so outrageous in its defiance of logic that no sensible person, having applied his or her mind to the question to be decided could have arrived at the decision: see ZINWA v Mwoyounotsva SC28-15.

In casu, there was no such misdirection.

The appellant's appeal also related to the sentence imposed by the court a quo.

The court a quo sentenced the appellant to death after considering the manner in which he executed the crimes.

In terms of section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), it is an aggravating circumstance in terms of which a court convicting an accused person may impose capital punishment, if the murder was committed in the course of or in connection with or as a result of the commission of a robbery.

In the second Count, the victim was robbed of his property thus aggravating his case.

Further, it is an aggravating circumstance if the murder was one of a series of two or more murders committed by the accused over any period of time.

In terms of section 47(3) of the Criminal Law (Codification and Reform) Act (the Code), a court may also regard it as an aggravating circumstance, with the same effect on sentence, if the murder was pre-meditated.

In the Court's view, all these circumstances exist in the manner in which the two victims were killed underscoring the very serious nature of the offences.

Two people were killed and their remains disposed of in similar circumstances within a period of only seventeen days in January 2017 pointing to propensity to commit murder. In fact, some of the victims body parts were carted away to an unknown place and the appellant was not willing to disclose where the missing parts were taken to.

Though the appellant claimed to have consumed some of the parts, this was a bare assertion, and, in any case, there were still some parts he refused to account for.

He showed no remorse by refusing to explain what he did with those other missing parts, stating that he had made a vow to “Lucifer” not to speak about what happened.

This bordered on arrogance, as the medical practitioners determined that he was of sound mind to stand trial.

The appellant may have killed the deceased for any other motives, including harvesting of parts for nefarious ritual purposes.

In Muhomba v The State SC57-13…, MALABA DCJ…, reiterated that:

“On the question of sentence, it has been said, time and again, that, sentencing is a matter for the exercise of discretion by the trial court. The Appellate Court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the Appellate Court to interfere with the sentence and assess it afresh. The allegation, in this case, is that the sentence imposed is unduly harsh and induces a sense of shock.”

It is not enough for the appellant to argue, that, the sentence imposed is too severe because that alone is not misdirection and the Appellate Court would not interfere with a sentence merely because it would have come up with a different sentence.

In S v Nhumwa SC40-88 (unreported)…, this court stated that:

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is more severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.”

In casu, the appellant has not shown that the court a quo did not exercise its discretion judiciously.

The court considered, that, the manner in which the appellant executed the murders, and covered them up, pointed to someone who was in control of his mental faculties. As such, the penalty imposed upon him was proper in the circumstances.

There is no evidence of mental incapacity to warrant a special verdict.

One does not create mental incapacity by blaming the heinous crimes on 'Lucifer' and refusing to shed more light to critical questions on how the crimes were committed and motives thereof.

The court a quo cannot be faulted for the sentence it imposed.

A point of concern is, that, upon finding the appellant guilty of murder with actual intent on both Counts of murder the court a quo passed one sentence of death.

This is an improper method of sentencing an offender with two or more counts of murder.

A complication would arise if, for instance, the appellant's appeal was to succeed on one Count and fail on the other Count.

Where it is intended to impose a death sentence, the proper approach is to impose the death sentence on each count separately: see S v Dube 1992 (1) ZLR 234 (S).

In as far as the appeal as a whole has no merit, no complication will arise warranting re-sentencing the appellant.

The conviction and sentence, in respect of both Counts, are hereby confirmed.

DISPOSITION

It was for the above reasons that we found that the appeal against both convictions and sentence had no merit and dismissed the appeal.

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.

The appellant was convicted after a protracted trial in which evidence was led from several witnesses.

As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court....,.

The events leading to the allegations were narrated in court by several key witnesses among them the following:

1. Tinashe Taruvinga (“Tinashe”) the complainant in respect of the indecent assault charge. Although the appellant was acquitted on her allegations of indecent assault, he argues that the court's treatment of her evidence ought to have applied in respect of the rape Count.

2. Nicole Tariro Taruvinga (“Nicole”) the complainant in the rape charge. The conviction was based on her evidence.

3. Sally Ndanatseyi Maramwidze (Sally”) the aunt to the two children. She received the initial report on the allegations from Nicole.

4. Francis Maramwidze (“Maramwidze”) the complainant's maternal grandfather and legal guardian of the two children. He took the initiative to make a police report and took up private prosecution when the Prosecutor-General declined it.

5. Edwin Tafadzwa Chanakira, the medical doctor who examined the complainant following upon the allegations.

6. Gresham Muradzikwa (“Muradzikwa”) the Director of Security at the RBZ.

7. Mirirai Chiremba (“Chiremba”) the Director of Financial Intelligence Unit at the RBZ.

8. Monica Kativhu, the investigating officer who was based at ZRP Borrowdale.

The defence, for which the appellant was the main witness, led evidence from the following other witnesses:

1. Patience Muswapadare Taruvinga (“Patience”) the aunt of the two complainants and the wife of the appellant. It was at her residence that the events subject of the trial took place.

2. Alpheus Njodzi Chinhamo or Chief Mukangamwi, to confirm a political plot;

3. Cletos Kereke, a brother to the appellant, to confirm the alibi;

4. Taurai Bwanaisa, a security guard, to confirm the alibi;

5. Norest Ndoro, another security guard, to confirm the alibi;

6. Anna Muswapadare, a step-mother of the complainant's father to deny the rape.

The court called Chiratidzo Lorraine Jeyacheya (“Dr Jeyacheya”) a medical director at Parirenyatwa Hospital, to clarify the authenticity of the hospital duty roster.

The Regional Magistrate analyzed the evidence of the sixteen witnesses. He first isolated the facts which were not in dispute, and then identified the issues for determination.

I will summarize the facts which were not in dispute at the trial.

Factual Findings of the Trial Court

Patience Muswapadare was, at the time, customarily married to the appellant. She testified on his behalf. She is the paternal aunt of the two complainants, Tinashe and Nicole. These two are the daughters to Patience Muswapadare's brother.

Between 20 and 27 August 2010, Nichole was at Patience's house at 11 Tovey Road, Vainona. Tinashe joined her there from 20 August 2010 till the 27th of August 2010.

There is a period during which the two girls were excluded from school over school fees which were in arrears.

On the night of 31 October 2010, Francis Maramwidze (“Maramwidze”) made a telephone call to Patience in which he summoned her to his residence. She indicated, that, as she had no transport, she could only come over the following day. On the following day, Patience went to the Maramwidze's residence. At this point, she was informed of the allegations by the minor children against her husband, the appellant.

It is not in dispute, that, between 20 and 21 August 2010 Anna Muswapadare, Calvin Muswapadare, and one Munyaradzi were present at 11 Tovey Road, Vainona.

During that time, it is agreed that Nicole shared bed and board with Anna Muswapadare.

On 22 August 2010, Nicole was aged 11 years.

The court a quo summarized the evidence of the two complainants in the following manner:

In August 2010, Tinashe and Nicole Taruvinga visited 11 Tovey Road, Vainona, to see their paternal aunt, Patience. On 20 August 2010, Tinashe left Nicole home when she went away for a prayer meeting. She returned on 23 August 2010.

Upon her return, Nicole gave her a report in which she claimed the appellant had raped her on a Saturday.

Nicole pleaded with her not to tell anyone as she feared that the appellant would harm her.

It was only after Nicole had made another report to Sally, in Avondale, that a family meeting was called in October 2010.

In that meeting, Sally had confirmed, that, in fact, Nicole had made a report of rape against the appellant to her a few days before.

On her part, Nicole told the court, that, on Saturday, around 03:00 she had been woken up by her aunt, Patience, who asked her to take care of the baby. She was preparing food for the appellant. She saw the appellant in the lounge and greeted him. She proceeded to the bedroom where she laid the baby on the bed. She sat on the couch.

The appellant followed her into the bedroom.

He said something that she did not understand. He proceeded to fondle her breasts and vagina. He then reached for her pants whilst at the same time producing a pistol. He then told her to comply with whatever he was saying. He pulled down her pants to knee-level and thereafter inserted his male organ into hers.

Only when he heard footsteps did he stop.

She managed to break free and rushed into her bedroom. Although her paternal grandmother was asleep in her bedroom, she did not report to her. Instead, she wept quietly. She did not want anyone to know about this incident.

The next morning, Sunday, she woke up and attended church and came back home.

On Monday, her older sister, Tinashe, came back from the prayer meeting. She confided in her about the Saturday night's event in which the appellant had raped her. She however pleaded with her not to tell anyone. It was later, on 30 October 2010, when she had visited her aunt, Sally, in Avondale, Harare that she reported to an adult member of the family. She asked Sally to advise her mother of the event. Instead, Sally asked her if she could inform other members of the family in Harare. Her mother was in London. The complainant agreed and Sally communicated this information to her sister-in-law, Philippa Maramwidze (“Philippa”).

The information was passed to the patriarch, Francis Maramwidze (Maramwidze). He later on made a telephone call to Patience.

On that same night, the matter was reported at Highlands Police Station, Harare. The complainant was medically examined immediately that night.

Sally Ndanatseyi Maramwidze (Sally) told the court that the two, Tinashe and Nicole, came to her place in Avondale on 30 October 2010. During the night, Nicole narrated to her how the appellant had, in August 2010, sexually molested her at 11 Tovey Road, Vainona. Nicole asked her to inform her mother about it.

She, in turn, asked the complainant if she could share the report with other family members. When the complainant agreed, she told her husband, and, the following day, the parties went to Greendale where the girls maternal grandfather stayed.

She gave this report to Philippa, her sister-in-law. The report was passed on to the patriarch, Maramwidze, her father-in-law.

When the matter was discussed, she told the court how emotional everyone became. The matter was eventually reported to the police at Highlands.

When Nicole repeated her story to Philippa, in Sally's presence, the complainant told Philippa not to tell her sister-in-law or their grandparents or anyone else as she feared that the appellant would use a gun on them.

At this point, Philippa asked Tinashe if she had suffered the same fate at the appellant's hands. Only then did Tinashe relate to other members of the family the inappropriate sexual advances to her which had taken place in March 2012.

Tinashe told them that the appellant had fondled her breast and buttocks and had kissed her against her will.

According to Sally, the complainant had not described to her the details of the rape until the following day in Greendale, because, as she was narrating her story, her husband had walked into the room. She asked him to excuse them. She went out briefly with the husband, and, when she came back, she found the complainant crying. She consoled her.

Given the complainant's emotional state, she was unable to probe her for further details.

By the time the report was made to Mr and Mrs Maramwidze, the rape details were, however, clear.

Maramwidze, the maternal grandfather of the two girls, is also the legal guardian. He confirmed that he had received a report concerning the rape allegations by Nicolle, against the appellant, on 31 October 2010. He had called Patience that same night but Patience could not come as she had no transport. That same night, he made a report to police at Highlands against the appellant.

The court a quo took note of the fact, that, in his evidence, Maramwidze indicated that he did not know the appellant prior to this matter. He therefore denied that he had sent the two girls to ask for school fees from the appellant; or that he personally asked for money from the appellant following upon the report to the police.

It was his evidence, that, the appellant had, on several occasions, visited his residence in order to discuss this matter but he had, on each occasion, refused to discuss the matter with him.

Patience had also brought her mother who wanted to negotiate with Maramwidze on behalf of the appellant. Anna Muswapadare also wanted to talk to the two complainants but Maramwidze denied her access to the children.

The witness gave evidence of how, as a family, they tried to get the appellant prosecuted from 2010 to 2015 - without success. Only after a court order did the private prosecution take off in 2016.

Edwin Chanakira, the medical doctor who examined the complainant, testified that he had reported for duty on 31 October towards midnight. His shift ran from midnight to 08h00. He had, upon examination, noticed a healed hymeneal tear. This indicated that the complainant had been sexually penetrated.

He disputed the contention that he was not on duty on 1 November 2010.

Gresham Muradzikwa, a Director of Security at the Reserve Bank of Zimbabwe (“the RBZ”), testified to events at the Bank.

The appellant was his superior when they were both at the Reserve Bank of Zimbabwe (RBZ).

In 2005, the appellant was issued with a CZ pistol for his personal protection. This firearm belonged to the Bank. When an officer is issued with a firearm, that officer makes an entry in a firearms register for accounting purposes. This would have been done in respect of the pistol issued to the appellant.

Sometime in 2010, the witness was called by his Divisional Head, Mirirai Chiremba. Upon attending at his superior's officers, he was asked if it was possible for him to accept back the CZ pistol previously issued to the appellant and also to backdate the receipt of the pistol beyond a certain date.

He refused.

He explained that such an anomaly would clearly be picked up by an audit inspection. That would create serious problems for him. Mirirai Chiremba (Chiremba) had the pistol with him. He refused to accept it. When he left, Chiremba was still holding the pistol in his hands.

Mirirai Chiremba, the Director of Financial Services Unit at the Reserve Bank of Zimbabwe (RBZ) worked under the supervision of the appellant during the appellant's time at the institution. The appellant was the advisor of the then RBZ Governor.

His evidence was, that, in the morning of 22 August 2010, he had woken up to find a missed call from his superior, the appellant. As would be expected, he returned the call. The appellant asked that they meet outside Bon Marche, Chisipite. They duly met around 06:45 that morning. In that meeting, the appellant, produced a pistol and its magazine as well as the cleaning kit. He handed these items to him with instruction that they be returned to the Security Department. When the witness asked why he was in a hurry to return them, the appellant informed him that there were people who were alleging that he had used the same to commit a crime. He also asked if an earlier date of return could be entered in the firearms registry.

The witness asked the appellant if he had robbed or murdered someone. The appellant told him that he had not done anything of that sort but that it was a minor dispute. The appellant looked worried. He took the pistol and its accessories.

This meeting occurred on a Sunday morning.

He then took the items to his office at the RBZ the following day. On the next day, the appellant came into his office with a memorandum on the rationalization of firearms at RBZ. He asked the witness to sign but the witness refused. The reason why he refused to sign was that the memo bore a back-dated date and required him to acknowledge receipt of the memo using that back dated date stamp.

The appellant was furious.

He threatened him with unspecified consequences if he did not sign and backdate the date stamp. Out of fear of these threats, the witness told the court a quo that he had signed the memorandum. The appellant took his signed copy and left.

At that time, the witness told the court that the appellant wielded a lot of power at the Bank before he resigned.

As soon as the appellant left, he called Muradzikwa, head of security in charge of the firearms registry. He explained to him what the appellant wanted done in respect of the fire-arm and its accessories which the appellant had returned. He specifically told Muradzikwa that the appellant wanted the date of return backdated.

Muradzikwa flatly refused.

He went out leaving him with the pistol which he kept in his safe until this day.

When it was put to him that his evidence was a fabrication meant to fix the appellant in order to conceal some alleged fraudulent activities in which he and Governor Gideon Gono were involved, he dismissed the suggestion out of hand.

Monica Kativhu, the investigating officer, explained that she had not compiled the scene report. She had received the docket with that report inside from police at Highlands. She had recorded statements from the complainant.

According to her, initially, Nicole had not mentioned anything about the gun until after she had given the statement to her guardian, Maramwidze, for him to peruse.

He had pointed out that the reference to the gun had been left out.

When she asked Nicole about a gun, Nicole confirmed that she had indeed omitted to make reference to the gun.

Another statement in which there was reference to the gun was then compiled.

The evidence led by the appellant was that he was away in the USA for the whole month of March 2010. He came back on 4 June 2010.

He denied that he had molested either Tinashe or Nicole. He disputed the evidence of fondling of breast and buttocks given by Tinashe and that of rape given by Nicole.

Instead, he raised the defence of an alibi in both Counts.

He told the court, that, on 20 August as well as 21 August 2010 he had left 11 Tovey Road, Vainona at 20:00pm proceeding to his other residence at 75 Wallis Road, Mandara. He arrived at this address at 21:00. His guards, Norest Ndoro and Taurai Bwanaisa, recorded in their log book his time of arrival as they were duty bound to do. His other wife and children were away at the farm for the week ending 22 August 2010. His brother, Cletos Kereke, had visited him from around 20 August 2010 until around 22:00 on 22 August 2010. From the time Cletos arrived, they were in each other's company till he left.

On the night of 20th and 21st August 2010, he had retired to bed at 21:00 and got up the following at 10:00.

He disputed visiting the Maramwidze residence on any occasion besides the only occasion when, on 1 November 2010, he went there to pick up his wife, Patience Muswapadare. On that occasion, these allegations were raised.

He denied that he has dispatched his mother-in- law, Anna Muswapadare, to plead with the Maramwidze's for an out of court settlement of the issues raised by the two girls.

Similarly, he disputed the truthfulness of the evidence given by the two Reserve Bank of Zimbabwe (RBZ) officials regarding the circumstances surrounding the return of the CZ pistol to his workplace. He denied forcing Chiremba to sign or demanding that the return date entry in the firearms registry be backdated. He maintained that he had returned the pistol on 14 June 2010 as acknowledged by Chiremba. He denied the encounter with Chiremba at Chisipite Shopping Centre or that he had handed over the pistol to Chiremba in that encounter.

Although he acknowledged that he had originated the memorandum in respect of the firearms, exhibit 6B, he denied that he had forced Chiremba to sign it. He denied that he had called Chiremba, and that, as a result of that phone call, they had met around 06:45 on 22 August 2010.

He claimed, that, at that time, he was sound asleep at his Mandara residence.

He told the court that these allegations are an attempt to extort money by the Maramwidzes. They had, before these allegations were raised, sent the two girls to ask him to pay for their school fees which were in arrears in the amount of $8,000. He had refused to give them. For that refusal, they were out to fix him.

He also drew the court's attention to the fact that he had made political enemies who were behind the framing of the allegations because he had exposed their fraudulent activities. These enemies ranged from his immediate boss, Gideon Gono, the head of the Central Intelligence Organisation, one Happyton Bonyongwe, and an officer in that organization, one Jimias Madzingira. The three want to silence him for exposing their fraudulent activities at the Reserve Bank of Zimbabwe (RBZ).

The other political enemies, former Vice President Joyce Mujuru, former Minister Webster Shamu, and David Butau were bent on tarnishing his political career through these allegations.

The trial court took note of the fact that the appellant had developed a new defence. It was this:

The former Member of Parliament, David Butau, was romantically involved with Chipo Maramwidze, the mother of the two complainants. Through Chipo Maramwidze, the complainants, and their grandparents, had concocted these allegations in order to fix him politically.

David Butau allegedly confessed to the plot.

To confirm this plot, and Butau's subsequent confession, the appellant read to court a text message sent by Butau.

Patience Muswapadare Taruvinga (Patience) testified, that, between 20 and 27 August 2010, Tinashe and Nicole were at 11 Tovey Road, Borrowdale, her residence. She, however, disputed the claim, that, in March 2010 Tinashe and Nicole had visited her. Therefore, any claims of sexual harassment by Tinashe against her husband could not be true.

Regarding the events of the period from 21 August 2010 to 23 August 2010 she told the court, that, she had come home around 20:00 on 21 August 2010. She had left some thirty minutes later and did not come back that night. Therefore, she could not have woken up in the early hours of 22 August 2010 to cook for the appellant.

Put differently, her evidence was that Nicole lied to the court in this regard.

She indicated that the two girls had previously asked her to approach her husband with a request that he pays their school fees as well as arrange for their travel to the United Kingdom to visit their mother. Should he fail to do this, they warned, they would fix him.

She believed, then, that this was said in jest but later realized that this was the genesis of her husband's woes.

She confirmed the phone call from Maramwidze on 31 October 2010. She only managed to go there on the next day. There, she learnt of these allegations for the first time.

When the appellant came to pick her up, she noticed that Maramwidze did not respond to her husband's greeting.

The reason she and her mother paid a subsequent visit to the Maramwidzes was to get the full details of the issues involved on her father's instruction.

She disputed the claim that Nicole was raped during the early hours of 22 August 2010.

Alphious Njodzi Chinhamo, the current Chief Mukangamwi, told the court, that, in 2013, they had approached the Vice President Mujuru with a request that the appellant be allowed to stand as a candidate for Bikita West Constituency. When they got to the Vice President's Office they met up with Francis Maramwidze. They were later advised by the Vice President that the appellant was facing rape allegations and therefore not suitable to contest on their party ticket.

Cletos Kereke's evidence was that he visited the appellant at his hospital in Mount Pleasant on 20 August 2010. From the hospital they had gone to 11 Tovey Road, Borrowdale. Since Patience had not yet arrived home, they did not spend time there. They proceeded to 75 Wallis Road, Mandara where they slept. To his knowledge, the appellant did not get out of the house the whole night. The next day, they had both gone to the hospital in Mount Pleasant and spent the whole day there. They had then gone to Borrowdale before proceeding to Mandara where they both spent the night. Accordingly, it is improbable, on his evidence, for appellant to have raped the complainant around 03:00 on 22 August 2010.

The evidence of the two guards was led to establish, as fact, that both the appellant and his brother would arrive at 75 Wallis Road, Mandara, at 21:00 and only left the following morning at 10:00. They said police had taken their Occurrence Book during investigations. This book would have confirmed their evidence....,.

Counsel for the appellant urged this court to find, that, in assessing the complainant, Nicole, as a reliable and credible witness, the court a quo erred in light of the objective reality of her story.

He argued that the court erred in convicting the appellant “on the basis of a story whose actus reus is incapable of performance or implausible on the circumstance alleged.”

He, in essence, invited this court to find, that, penetration of an eleven year old virgin, by an adult person, whilst seated on a couch, was not possible, nor was it conceivable that she could be penetrated without screaming.

In the second ground of appeal, the appellant argued, that, the court erred and misdirected itself in law by convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence.

These inconsistencies, he said, resided in the different versions given by the complainant; first to the police, then the statements she gave in court, and between the general evidence given and the scene report.

In the third ground, the appellant decries the failure to consider the effect of the substantially similar but failed charge of indecent assault on the assessment it had to make of the complainant. Put in another way, the appellant avers, that, the court a quo ought to have assessed the credibility of Nicole in the same way that it had assessed that on Tinashe.

The fourth ground of appeal attacked the manner in which the court a quo dealt with the appellant's conduct which it found to be suspicious without considering whether there were other possible reasons why he behaved in the manner he did.

Finally, the appellant submitted, that, the court a quo erred in disbelieving his alibi when there was no evidence tendered by the State to rebut it.

It seems to me, that, where an appellant recites the grounds of appeal cited above, the court must, ultimately, be satisfied, that, having regard to all the facts and circumstances, either there is or there is no proof beyond a reasonable doubt that the accused is guilty.

Whilst it is certainly true that the evidence of children should not be approached on the basis of assumptions that all children make false allegations, have poor memories, and are highly suggestible, it is equally true that a court ought not convict unless it is safe to do so; that is, unless there is proof beyond reasonable doubt.

The circumstances of and the issues as raised in a particular case, might inevitably require that a court considers the age of the child witness and her mental ability and development.

Each case must be considered on its own merits. This might involve a finding on whether the evidence of the child witness concerned is such that it can, for purposes of a conviction, safely be relied upon.

In my view, the issues raised in the first ground, i.e. that it is inconceivable that an eleven year old virgin could be penetrated by an adult and fail to scream thereby alerting the other occupants of the house, were fairly and adequately explored and dealt with by the learned trial magistrate.

In S v Nyirenda 2003 (2) ZLR 64 (H) this court observed, that, it does not follow that every rape situation should be characterized by the screaming of the victim; tearing of the victim's garments; immediate report to a relative or someone close to the victim; crying after the rape; preservation of the evidence of rape, etc.

Each case has to be considered on its own merits: see Compare: Commonwealth v Berkowitz 641 F 2d 1161 (1994). This case was discussed in LYNN HECHT SCHAFRAN, Criminal Law: What is Forcible Compulsion? THE JUDGES JOURNAL, Winter 1995 at 43.

The language in which the first ground of appeal is couched reminds one of the wise words by the eloquent Justice L'HEUREUX DUBE, in her acknowledgement of criminal justice system failures in relation to crimes of sexual assault and the fact that legal decision-making about sexual law has too often been shaped by sexist biases and myths. She said:

“Complainants should be able to rely on a system free of myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The [Criminal] Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.”

See R v Ewanchuk 1999 1 S.C.R 330.

I find that the appellant's grounds of appeal reveals an embeddedness of the male viewpoint of sex in the law of sexual assault which pervades our society.

The problem is that the injury of rape lies in the meaning of the act to its victim, but the standard for its criminality lies in the meaning of the act to the assailant.

I am unable to accept that male lawyers should import their chauvinistic views about sexual assaults on women in such serious issues as an appeal against a conviction of rape.

This, in my view, is what counsel for the appellant has done.

Even assuming, in his favor, that he was articulating his client's viewpoint, his duty, as an officer of the court, is to ameliorate that language to avoid a clearly misogynistic opinion that coloured the grounds of appeal.

What a court of law must consider is whether the threshold of the standard of proof required in a criminal case has been breached.

I am of the view that it has. I reach that decision on the following basis:

The complainant explained, that, due to her immaturity at the time, she felt that she was responsible for what had happened to her. All she wanted was for her mother to know.

The learned magistrate was satisfied, that, by the nature of the graphic details which she gave, the complainant told the truth. He contrasted her evidence with that of the complainant in the indecent assault charge which lacked detail. It was on that basis that he had found that there was no proof beyond a reasonable doubt in respect of the first Count.

This is different from stating that the complainant had not told the truth.

The evidence on that Count did not reach the required threshold of proof beyond a reasonable doubt.

Therefore, I do not find that there was any misdirection in the manner which the credibility of the complainant, on the rape Count, was assessed as opposed to that of the complainant on the indecent assault charge.

The court a quo also considered whether or not the evidence given by the complainant in the rape Count could have been a result of suggestibility.

He was unable to find that she could have been influenced to give that quality of evidence regard being had to the fact that she had no prior sexual experience.

The court also paid due regard to the evidence by Dr Chanakira who testified that there was indeed evidence of penetration.

The appellant's counsel dwelt on the circumstances in this testimony given by complainant in court as compared to her earlier statements to police and to the many people she narrated her ordeal.

The court a quo held, that, although there are variations in regard to certain minute detail, it did not find any material inconsistencies with regard to how the offence was committed.

It gave the example of her initial statement to her sister in which she did not say she was raped. The court reasoned, that, her explanation, in court, that she was confused and embarrassed by the whole experience should account for her indecision on whether to report or not, or, if she were to tell, what detail to tell, to who, and how.

In my assessment, where a child is subjected to sexual abuse, a trial court ought not to nitpick and bear such scrutiny on immaterial detail with a view to cast doubt on the credibility of a witness evidence.

The proper approach always is to assess the merits as well as the demerits of a witness evidence and decide whether, as a whole, the truth has been told.

In this assessment of credibility, it must not be lost to a trier of fact, that, the witness does rarely make a report of abuse with a view to meticulously record it for the purpose of future use in a court of law.

Usually, a witness realizes that she may be required to recall all the minute details when she is called upon to give a statement to police. Even then, that statement may be taken in vernacular and translated by another officer who may or may not have the opportunity to clarify certain of the testimony at the time.

The witness is only required to do so in court when she has had to repeat her statement to many people.

In this situation, a court is entitled to require that credibility be tested against the realm of what the probabilities of the case maybe.

Each case will have to be assessed on its own merits.

The court a quo considered the question of the authenticity of the medical examination report by Dr Chanakira. It correctly concluded that the doctor's findings provide irrefutable corroboration of sexual penetration. The complainant's evidence in this respect is therefore corroborated.

Counsel for the appellant urged this court to conclude that penetration of an eleven year old virgin was a virtual impossibility given the fact that this was said to have happened when she sat in a couch. His argument implies, that, because the appellant is an adult he could not possibly effect penetration on an eleven year old in that situation.

Impossibility as a defence is only available in situations where an accused has a positive duty to act.

The argument of impossibility of the actus reus, in my view, is not sustainable as it is not premised on any evidence of the physiology of either the complainant's or appellant's anatomy. It makes an assumption of what, in reality, constitutes some of the myths of rape to be fact. Such an argument cannot possibly avail the appellant.

As I pointed out, it is based on a wrong premises. I reject it accordingly.

Counsel for the appellant urged the court to disregard the evidence of the circumstances surrounding the return by the appellant of his pistol.

This issue was extensively debated in the court a quo and dismissed in the judgment by that court. The court, correctly in our view, rejected the evidence tendered by the appellant and accepted that given by the State witness, Mirirai Chiremba.

Critically, this evidence was obtained by the prosecution and not by the police.

The evidence of the documents certifying the return of the pistol, according to Chiremba, were falsified by the appellant to reflect a date in June 2010, when, in fact, the appellant gave Chiremba the pistol on 22 August 2010.

Coincidentally, it was the morning after the rape.

Chiremba's evidence was that the appellant asked him to backdate the date of return since some people were alleging that he had committed an offence. When asked by Chiremba if he had killed or robbed someone the appellant retorted that he had not but he looked worried.

The court preferred this version of events rather than the one proffered by the appellant.

In his version, he had returned the pistol, not by handing it to Chiremba at Chisipite Shopping Centre on a weekend, but, by completing a form during the week at the RBZ. The evidence by Chiremba was the work of his enemies bent on ruining him politically.

The court rejected this claim.

It is easy to understand, in the context of the facts of this case, why the court, fairly in our view, rejected this version. The appellant's claim was only corroborated by a document which he had completed and coerced Chiremba to co-sign. Chiremba's evidence was corroborated by Muradzikwa, the security officer at RBZ, who refused to take back the pistol on the condition that he falsifies the firearms register.

That evidence, on its own, is innocuous.

However, if it is taken in its proper context, which is that the return of the pistol the day following the rape confirms the complainant's testimony that the appellant produced a firearm with which he threatened her.

When she says that she was raped the night before the return of this firearm, this episode, in a way, corroborates her otherwise singular evidence of what happened in the bedroom involving her and the appellant.

Circumstantial evidence is sometimes stronger than direct evidence.

The return of the firearm, the morning after the incident from which the allegations of rape arose, and his conversation with his subordinate at the time, in my view, betrays a behaviour of someone who anticipated the events which later unfolded.

When asked if he had robbed or killed someone, the appellant explained that he had not done that but that there was a “minor dispute.”

The court a quo considered the defence witnesses evidence.

It concluded, after a careful and detailed analysis, that no weight can be attached to this evidence as these witnesses were apparently coached on what to say by the appellant.

The court pointed out the anomaly surrounding the fact that the witnesses statements were in affidavit form, were commissioned by one lawyer, and were given on the same date.

He ruled that these witnesses were lying and they were lying at the behest of the appellant who faced serious charges.

Where a court rejects the evidence of an alibi testimony, it follows that the court would have, by implication, found that the defence of alibi had been disproved.

Therefore, in my view, the court correctly adverted to the appellant's defence and rejected it as false.

It found, that, the appellant had been untruthful on not just the issue of the alibi defence but the pistol and his presence at Tovey Road, Borrowdale on 22 August 2010.

The relevant page of the Occurrence Book was certified by the police. The two witnesses disowned it. The court also determined that their evidence was a direct effort by the appellant to adduce favourable evidence by influencing them on what to tell the court.

In our view, the court a quo properly assessed the evidence and correctly found that the State had found the guilt of the appellant proven beyond a reasonable doubt.

Consequently, the appeal against conviction stands to be dismissed.

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

It is settled law in our jurisdiction that an Appeal Court will not easily interfere with factual findings made by a lower court. To that extent, case law has set the test for discrediting and upsetting factual findings by a lower court so high that they cannot easily be overturned ...

HB61-15 : MICHAEL NDIWENI vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

After hearing the appellant and counsel for the respondent, we dismissed the appeal in its entirety and indicated that our full reasons would follow in due course. These are they.

The appellant appeared in the Regional Court facing four counts of armed robbery to which he pleaded not guilty.

The appellant had been jointly charged with three others who were discharged at the close of the State case. The appellant was, however, found guilty as charged in respect of all the four counts.

He was then sentenced as follows:

Count 1-7 years imprisonment.

Count 2 to 4-7 years imprisonment.

Two years imprisonment was suspended for a period of four years on condition of future good behaviour leaving an effective sentence of 12 years imprisonment.

Counts 2 to 4 were treated as one for sentence as the three robberies were committed at the same place at the same time against different complainants.

The robberies took place under cover of darkness at around 21:00 hours at Macy-Line Lodge on 1 May 2012.

The appellant and an unknown colleague of his went to Macy-Line Lodge and pretended to be prospective guests, but, surprisingly, the appellant drew out a firearm and ordered the witnesses to lie down, searched them, and robbed them of cash and mobile phones.

The accused's pistol was a star pistol serial number 63609.

The witness told the trial court, that, they had spent considerable time with the appellant during the ordeal. The place was well lit and they could see the appellant clearly. Two of the three witnesses had no difficulty in identifying him at an identification parade nine (9) days later.

The evidence of the witnesses reads well and the trial court cannot be faulted for holding that they were credible witnesses who were worth to be believed.

In respect of the first count, the accused was betrayed by his star pistol, serial number 63609, whose spent cartridge case was found at T.Z. Supermarket, the scene of a robbery committed on 27 April 2012. It was established, that, the spent cartridge had been fired from the appellant's star pistol serial number 63609.

The appellant sought to make two submissions about the pistol:

(i) Firstly, he suggested he did not know anything about the Star pistol serial number 63609 and went on to state, that, he only knew something about a different firearm all altogether, a CZ pistol.

When asked why he had not put that in his written Defence Outline and why he never raised it during the entire proceedings of the trial; his reply was that he was confused at that time.

(ii) His second submission was that the firearm, in any event, did not belong to him. It was his sister's firearm.

When asked, again, why he did not mention that at his trial: he sought to blame the trial court for not recording such a material fact.

He was clearly being untruthful.

He did not challenge the forensic ballistics reports in court which ended up being produced as evidence by his consent.

The appellant's suggestions, on appeal, were clear after thoughts which were without merit.

When asked if he wished to say anything about the sentence since he had appealed against it also, his reply was, that, since he had not committed the robberies he saw no need to talk about the sentence.

He then pleaded for mercy and leniency from this court.

It was for the foregoing reasons that we arrived at the conclusion, that, the appeal was devoid of any merit and dismissed it in its entirety.

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

An integral part of the adjudication process is the exercise of discretion. It is done judiciously.Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role.There are many instances when the court is called upon to exercise its discretion. But, it ...

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.This is an appeal against that order.BackgroundThe ...

Background

The appellant and another champion of women and children's causes and rights approached the High Court seeking, in the public interest, an order the main thrust of which was to declare the criminal law which governs the age of consent to sexual activities unconstitutional.

The second applicant a quo did not apply for condonation for the late filing of this appeal, which the appellant successfully did. Whilst the second applicant a quo is not before us, where relevant and unavoidable, reference shall be made to the averments that she made.

Further and for convenience, where reference is made to the proceedings a quo, the parties thereto shall be referred to as “the applicants” and “the respondents” respectively.

The locus standi of the applicants to bring the application a quo was not in dispute.

It was accepted by all the respondents, and the court a quo, that, the applicants could bring, in the public interest, a challenge to the constitutionality of sections of Part III of Chapter V of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Creating criminal offences punishable at law, the Criminal Law (Codification and Reform) Act, in its language, prohibits extra-marital sexual intercourse and the performing of indecent acts with a young person, who it defines, in section 61(1), as a boy or girl under the age of sixteen years.

This, of course, must be read in the context of the decision of this Court in the matter of Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) in which child marriages were outlawed.

I return to this point in detail later.

The Criminal Law (Codification and Reform) Act also penalizes owners or occupiers of property who knowingly permit another person or persons to commit the offences on their property or detain a young person with the intention that such offences be committed against the young person. The Criminal Law (Codification and Reform) Act further prohibits the procuring of young persons for the purposes of prostitution in addition to prohibiting property owners from allowing young persons to remain on one's property for the purposes of sexual activities.

The above constitutes the content of the impugned law.

Whilst bringing the application a quo in the public interest and therefore not alleging that the impugned law infringes their personal rights, both applicants, now adults, narrated, in their founding affidavits, their personal experiences which they argued could have been avoided had the protection afforded to children under sixteen years of age been extended to all children. They were both child-brides and the second applicant was a mother of two by the age of nineteen.

Having noted the disparity between the definition of a “young person” in the impugned law and of a “child” in the Constitution, the applicants approached the court a quo seeking an order in the following terms –

“It is declared that –

1. The definition of 'young person' and reference to 'below the age of sixteen years' in the below sections of the Criminal Code [Chapter 9:23] are unconstitutional to the extent that they do not include all children under the age of 18 in violation of section 81 of the Constitution.

2. The sections of the Criminal Code [Chapter 9:23] which fail to protect all children under the age of 18, are inconsistent with section 81 of the Constitution and are thus unconstitutional to the extent of the inconsistency.

3. The current age of sexual consent, set at 16 by section 70 of the Criminal Code [Chapter 9:23] is inconsistent with section 81(1)(e) of the Constitution of Zimbabwe.

4. The current age of consent, set at 16 years old, violates the rights and protection for girls including human dignity under section 51, equality and non-discrimination under section 53, right to education under section 81(1)(c), healthcare under section 81(1)(f) and best interests under section 81(2) of the Constitution of Zimbabwe.

5. The respondents pay the costs of suit.”

In seeking the above order, the applicants relied on the findings of this Court in Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) on the harmful effects of marriage on children - especially on girls. They incorporated into their application these findings and the scientific evidence referred to in that judgment.

The application a quo was opposed.

In addition to placing his views before the court in an opposing affidavit, the second respondent was content to abide by the decision of the court.

The parties made lengthy and detailed arguments a quo. It is not necessary that I burden this judgment with these.

Despite the lengthy and detailed arguments that the parties advanced a quo, the sole issue that fell for determination before that court was whether the impugned law is unconstitutional on any one or more of the grounds advanced by the applicants.

With respect, the issue was not, as consumed by the court a quo, a determination of the age at which children should have their first sexual experiences.

The Decision a quo

As indicated above, the court a quo dismissed the application with costs. In dismissing the application, the court made a number of findings. It is necessary that I set out some of these in detail.

Right from the outset, the court a quo set out –

“to examine trends (world-wide) on age of sexual consent, age of marriage, child development, and the effect of raising to 18 years the age on sexual consent on child protection and whether section 70 (of the Code) and related sections are unconstitutional.”

Whilst there was nothing intrinsically wrong in setting the inquiry this wide, the court a quo thereafter disproportionately devoted its time and industry to the introductory issues at the expense of the primary issue that was before it.

It thereafter largely focused on whether the age of consent in Zimbabwe should be raised from sixteen to eighteen; in itself an important debate, but, one that was not before it.

Scant regard it paid to the question whether or not the impugned law is inconsistent with the Constitution.

For instance, citing a report by UNICEF, UNESCO, UNWOMEN, UNPFA and UNDP 2019, on Adolescent Consent to Marriages and Sexual Activity and Access to Sexual Reproductive Health Services in Light of the Zimbabwe Marriages Bill 2019, the court found, that, it is a notorious fact that children in Zimbabwe are indulging in sexual activities from an early age. Forty per cent of girls and twenty-four percent of boys are sexually active before they reach the age of eighteen.

In view of the issue that was before the court, the finding by the court, in this regard, did not add any colour or flavour to the constitutional question that was before it.

Further, this finding was made on evidence procured through the court's own industry. The various United Nations Agencies reports that the court relied upon in making this finding were not tendered as evidence by any of the parties.

I return to this point later in the judgment.

It appears, that, the court a quo made the finding that children are engaging in sexual activities from early ages to buttress its next finding, that, although children need to be protected from sexual abuse and exploitation, it needs to be equally acknowledged that adolescents naturally start exploring their sexuality and engaging in consensual sexual activity with their peers.

The court then accepted, wholesale, the arguments of the first and third respondents, that, raising the age of consent from sixteen to eighteen does not per se prevent adolescents from engaging in sexual activity with their peers but leads to the criminalization of adolescents as sex offenders. This, in turn, creates barriers for the adolescents against accessing sexual and reproductive health care services.

It was thus the conclusion of the court a quo, that, laws, on their own, cannot prevent children from engaging in sexual activities, and, in particular, that raising the age of consent from sixteen to eighteen cannot per se prevent children from having sexual intercourse.

Quite clearly, the court a quo was concerned with the need to allow children, particularly adolescents, “legal” space within which to explore their sexuality with their peers.

With respect, this was not the constitutional issue that the applicants had raised.

As indicated above, the application before the court did not require the court to make a finding on the appropriate age at which children should be allowed to have their first sexual experiences.

The application challenged the constitutional validity of the law that seeks to protect children from sexual exploitation....,.

In finding that the raising of the age of consent to afford protection to all children will create barriers for the adolescents in accessing sexual and reproductive health services, the court a quo was persuaded by the observations by the UN Agencies reports, that, setting the age of sexual consent for children higher than the impugned law allows would result in caregivers and institutions being dis-empowered from responding to adolescents sexual and reproductive health issues because they would fear being in conflict with the law that criminalizes such behaviour.

It accepted this observation as the basis of its decision....,.

The need to enable and allow adolescents to make choices as to when and with whom to have sexual relations dominated the reasoning of the court a quo to the exclusion of the real issue.

As indicated above, and respectfully so, the court a quo set its inquiry too widely, and, in the process, its compass would, most of the time, veer from directing it to the real issue that was before it. Because it had set out to examine worldwide trends in settling the age of marriage, an issue that was clearly not before it, the court a quo saw the applicants case as seeking to conflate the age of marriage with the age of consent to sexual activities and held thus –

“…, efforts to conflate the age of marriage with the age of sexual consent can be particularly harmful for girls as they can deny them the right to make decisions about whether, when, and with whom to have sex. They can also stigmatize as criminals individuals who have sex before marriage and increase barriers to accessing sexual and reproductive health services.”

The court a quo however accepted that “there should be penal provisions in our statutes to deal with adults who have consensual sexual activity with children aged between 16 and 18 years.”

This finding by the court a quo was apparently made oblivious to the fact that this, in essence, was at the heart of the application which the court went on to dismiss.

In answer to the question whether the impugned law was in violation of the Constitution or ultra vires the Constitution, as the court a quo put it, the court referred to the many findings it had made and which I have detailed above.

It specifically found, that, the Criminal Law (Codification and Reform) Act (the Code) does not in any way violate children's rights to dignity and that the relevant law was meant to fulfil children's rights to health care as guaranteed in the Constitution.

As its ratio decidendi perhaps, and in dismissing the application, the court a quo expressed itself thus –

“In this case, the applicants are targeting the provisions of the Criminal Law (Codification and Reform) Act as being unconstitutional in its interpretation of child or young person. They forget that there are a plethora of other Acts that define child that is a boy/girl and young person in the same manner that is not consistent with the definition given in the Constitution. Even if this court is to declare the definition in section 61 or 70 of the Code unconstitutional, what is going to happen to the definitions in other statutes?…,.

Therefore, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional. It will only amount to a patching exercise. A wholesome approach is required. The solution lies in harmonizing the current statutes with the Constitution. Even after harmonization, it is my considered view, that, this will not per se protect the adolescents.

What is required is a strong multi-sectorial approach in educating the girl or boy child of the evils of indulging in early sexual activities without the necessary precaution. For the above reasons I will dismiss the application with costs.”

It thus found, that, the impugned law was not unconstitutional because it was not the only law that violated the Constitution. It also found, that, the impugned law was not unconstitutional as declaring it so would not, in itself, afford effective protection to children against the risks of indulging early in sexual activities.

Being seized with a constitutional issue, the court a quo did not, at any point in its judgment, attempt to interpret the relevant constitutional provisions and establish what the law on the rights of children provides....,.

The court a quo did not seek to interpret section 81(1) of the Constitution to give it its true meaning before upholding the constitutional validity of the impugned law.

Thus, there was no debate in the judgment of the content of the fundamental right or freedom that was allegedly infringed and the extent of the infringement, if any.

How the court, in the circumstances, proceeded to uphold the constitutional validity of the impugned law without first interpreting the Constitution becomes incomprehensible.

As this court stated in Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC18-18:

“The Constitution is properly interpreted first to get its true meaning. Only thereafter is the challenged legislation held against the properly constructed provision of the Constitution to test its validity.”

Having erroneously overlooked the supremacy of the Constitution and the need to interpret it first in the matter that was before it, the court a quo, somewhat convolutedly, reasoned in the concluding paragraph of its judgment –

“…, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional.”

It erroneously gave supremacy to the provisions of the Code and the object and subject matter of the impugned law.

The court thus shied away from its primary role, of declaring itself on the constitutionality or otherwise of the impugned law. This was the sole issue that was squarely before it, and, by deliberately avoiding it, the court a quo fell into a grave error. It ended up on a frolic of its own, deciding on whether or not laws alone can stop adolescents from engaging in sexual activities.

Thereafter, the court sought to justify the continued sufferance of the impugned law on the basis that the solution to the many issues raised in the application was to be found possibly in harmonizing with the Constitution all the current statutes that defined a child as a boy or girl under the age of sixteen.

In holding that the impugned law was justifiable, the court a quo did not go anywhere near invoking the provisions of section 86(2) of the Constitution or the common law principles enunciated in the long list of cases that I have referred to above.

Section 86(2) of the Constitution, which embodies the common law, provides for the limitation of fundamental rights in terms of laws of general application and to the extent that the limitation is fair, reasonable, and necessary in a democratic society.

In the absence of a prior finding that the impugned law did in fact infringe children's fundamental rights, as alleged by the applicants, a justification of the impugned law, on any basis, was idle.

Curiously, the court a quo justified the current law on the basis that it was similar to other laws that also contradicted the Constitution and held that a wholesale alignment of all such laws was the answer to the mischief that the applicants sought to cure.

The court a quo even doubted the efficacy of the constitutional alignment exercise as, in its view, this would not stop adolescents from engaging in sexual conduct.

On the basis of the above, the decision a quo cannot stand. I accordingly set it aside.

Having set aside the decision of the court a quo, it remains for me to determine the matter in accordance with the settled approach...,.

In attacking the correctness of the decision a quo, counsel for the appellant pointed out, that, the court made findings of fact in favour of the respondents on evidence that the respondents had not placed before it.

I have referred to this observation above, expressing my view, that, the findings of fact, even if they had been made on evidence properly before the court, did not colour or flavour the issue that was before the court one way or the other.

For the avoidance of doubt, however, I do not place any weight on such findings as they were made in an irregular fashion.

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

This is an appeal in respect of both the conviction and sentence.

The appellant was convicted, after a protracted trial, by the Magistrate sitting at Chivi on 1 July 2019 and he was represented by counsel for the appellant.

The appellant was convicted of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced to 4 years imprisonment of which 1 year imprisonment was conditionally suspended for 5 years on the usual conditions of good behaviour. A further 1 year was suspended on condition the appellant paid restitution in the sum of US$471 and RTGS133=21 through the Clerk of Court at Chivi on or before 31 August 2019.

The appellant has to serve an effect sentence of 2 years imprisonment.

At the time of the hearing of the appeal, counsel for the appellant submitted, that, the appellant, who has been in prison for about 4 months, has already paid the restitution in the sum of US$471 and RTGS133=21.

The facts of this matter, which give rise to this appeal, are largely common cause save for the appellant's role in the commission of the offence.

The appellant was jointly charged with three other accomplices Cordination Magavhe, aged 28 years, residing at Chivi Growth Point; Babra Masvosvere, aged 20 years, residing in Beitbridge; and Shelter Ezra, aged 28 years, residing at Chivi Growth Point.

The other three accomplices, Cordination Magavhe, Babra Masvosvere and Shelter Ezra pleaded guilty to the charge and each was sentenced in the same manner as the appellant.

The appellant is the only one who denied the charge hence the matter proceeded to trial.

The offence of fraud in this matter was committed with surgical precision.

The three accomplices, Cordination Magavhe (Cordination), Barbra Masvosvere (Babra), and Shelter Ezra (Shelter) together with the appellant are said to have hatched a plan to defraud Mukuru.Com Money Transfer Company branch situate inside N. Richards Wholesale at Chivi Growth Point.

As already said, the only disputed fact is the appellant's role or involvement in this criminal enterprise as the appellant denied any role or knowledge of the commission of the offence.

Cordination Magavhe, as his name denotes, was the co-ordinator of this whole criminal enterprise as he was an ex-employee of Mukuru.Com Money Transfer Company at Chivi Growth Point. He provided a clipboard, counterfeit audit papers titled Mukuru.Com, 2 T-shirts inscribed 'Mukuru Send Money Home' and some cash box keys which he had stolen while employed at Mukuru.Com Transfer Company branch situate at Chivi Growth Point. It is Cordination Magavhe who briefed the other accomplices of the tactics to be employed in committing the fraud.

Barbra Masvosvere was assigned the prominent role of executing the fraud and stealing of the money at Mukuru.Com Transfer Company branch at Chivi Growth Point. This is probably because she was the only one who was not a resident at Chivi Growth Point as she resides in Beitbridge and was therefore not known at Chivi Growth Point.

The appellant's role, which he disputes, is that he provided a laptop from which the counterfeit Mukuru.Com fraudulent documents were generated and acted as a sentinel during the execution of the offence by Barbra Masvosvere.

Shelter Ezra, again, as her name denotes, provided shelter for the culprits as the plan to commit this fraud was polished up at her residence at Chivi Growth Point; she offered accommodation to Babra and provided a handbag Babra used.

The fraudulent plan was executed in the following manner:

On 11 January 2019, Babra proceeded to the Mukuru.Com Company branch at Chivi Growth Point inside N. Richards Wholesale where she posed as an auditor from Mukuru.Com Company who had come to carry out official duties at the branch. She was wearing the t-shirt inscribed “Mukuru Send Money Home”; was carrying a handbag and a clipboard attached with the fake or counterfeit Mukuru.Com Company documents.

Babra carried herself as an auditor from Mukuru.Com Company Head Office in Harare who had come to perform her duties at the Mukuru.Com Company branch at Chivi. She approached the complainant, Raviro Chirape, a cashier employed at the Mukuru.Com Company branch at Chivi Growth Point. Babra then proceeded to carry out 'an audit' inside the booth at Mukuru.Com branch at Chivi Growth Point and Raviro Chirape believed Babra was an auditor. Babra proceeded to check the financial books and cash on hand in order to carry out the reconciliation.

At the material time, there was US$5,475 and $533 bond notes which Barbra counted with Raviro Chirape.

After about an hour, Barbra asked the cashier, Raviro Chirape, to go and buy for her some water to drink. When the cashier went to buy the water, Babra simply took the money at the Mukuru.Com Company branch. After the cashier returned, Babra later left with the cash and caused the cashier to complete fake audit forms which showed that Babra had carried out audit duties unaware that Babra had stolen the money in her absence.

The culprits then regrouped at Shelter's house and proceeded to Zvishavane to share the loot.

The matter came to light the same day when Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi Growth Point, later realised that all the money in her possession had been stolen.

The CID details from Mashava later on investigated the matter, and, on the same day, arrested Cordination and the appellant with the help of CCTV at N. Richards Wholesale at Chivi Growth Point.

Upon their arrest, CID details recovered United States dollars from Cordination and the appellant.

Further, an HP laptop bearing serial numbers of counterfeit documents used by Babra when she misrepresented herself to Raviro Chirape the cashier at Mukuru.Com Company Branch at Chivi Growth Point as an auditor, were recovered.

Thereafter, Cordination led to the arrest of Babra, who had returned to Beitbridge, and also accused Shelter.

The amount of US$760, $67 bond notes was recovered from Babra and US$1,800 from Shelter. Both the appellant and Cordination were found with some cash.

Further, the t-shirt inscribed 'Mukuru Send Money Home'; the clipboard; a purse; the attire Babra was wearing posing as an auditor were recovered at Shelter's residence thrown inside a blair toilet.

The total cash stolen is US$5,475 cash and $533 bond cash. The amount recovered is US$3,589 cash and $75 bond cash.

The appellant gave a very lengthy Defence Outline covering 23 paragraphs.

In brief, the appellant denied conniving to commit the fraud with Cordination, Babra and Shelter. The appellant said the only person he knew was Cordination and he was not known to Babra and Shelter. The appellant denied taking any part in the commission of the offence. He denied playing any role in the commission of the offence or getting any share of the loot.

The appellant, however, admitted to the following facts, which are;

(a) That, he is a very close friend of Cordination Magavhe, an ex-employee of Mukuru.Com Company branch at Chivi.

(b) That, he is well known to the cashier, Raviro Chirape, at Mukuru.Com Company branch at Chivi Growth Point as he frequents N. Richards Wholesale or transacting at the said Mukuru.Com Company branch.

(c) That, on the day in question, on 11 January 2019, he indeed was at N. Richards Wholesale Chivi Growth Point where the Mukuru.Com Company Branch is situated hence his images were captured on CCTV. However, the appellant said his mission at those premises was not to carry out any surveillance in furtherance of any criminal conduct but to meet a female friend, Eustina Mbaradze, and for shopping purposes inside N. Richards Wholesale.

(d) That, on the way into N. Richards Wholesale he passed by the Mukuru.Com booth which is by the entrance and greeted the cashier who is the complainant, Raviro Chirape.

(e) That, the fraudulent documents used by Babra to commit the fraud were generated from his HP laptop. The appellant, however, said this was done by his friend Cordination Magavhe who had unfettered access to his laptop which had no password and that this was done without the appellant's knowledge or approval.

(f) That, he was found in possession of money stolen from Mukuru.Com Company branch at Chivi Growth Point, being United States Dollars. The appellant, however, said he had been given this money by his friend, Cordination Magavhe, who owed the appellant some money and that it was not the appellant's share of the loot.

After hearing evidence from the complainant, Raviro Chirape, the cashier at Mukuru.Com Company branch at Chivi, Barbra Masvosvere, a convicted accomplice who had been properly warned, and the investigating officer, Nxumalo Mxolisi, all for the State; and from the appellant and his defence witness, Cordination Magavhe, also a convicted accomplice, the court a quo found in favour of the State and dismissed the appellant's version of events or evidence as false.

Irked by this decision, the appellant approached this court, on appeal, and the grounds of appeal, in respect of both conviction and sentence, are as follows:

“GROUNDS OF APPEAL

1. RE: CONVICTION

1.1 The learned Magistrate erred in law when he convicted the appellant of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the absence of proof beyond reasonable doubt, particularly in that;

(a) He wrongfully made inferences from circumstantial evidence, which inferences were not the only reasonable inferences which could be made in the circumstances.

(b) He wrongfully relied on evidence of an accomplice in circumstances where the risk of false incrimination was very high and had not been eliminated.

(c) He wrongfully rejected the appellant's explanation in his defence which was probable in the circumstances.

1.2 WHEREFORE, appellant prays for the success of the appeal and for the setting aside of the decision of the court a quo convicting the appellant of the offence and substitution of the same with a verdict of Not Guilty.”

In relation to sentence, the appellant is of the view, that, community service should have been imposed in light of the mitigating factors which include, inter alia, the delay of 5 months in finalising the matter; that the appellant is a first offender; that half of the stolen money was recovered; that the amount stolen was not substantial; that the sentence imposed was within the threshold of 24 months effective sentence and that the appellant is a suitable candidate for community service.

I should commend counsel for the appellant, Mr Chivasa, for his detailed and well researched heads of argument. Equally so, I need to commend the learned trial magistrate for a very lucid judgment and a clear appreciation of not only the facts in issue but the law involved.

The simple task for this court is to assess, as regards conviction, if the court a quo properly applied the principles of circumstantial evidence and/or the liability of co-perpetrators.

The liability of co-perpetrators is provided for in section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

This provision simply reinforces the common law principle or doctrine of common purpose which entails, that, for the doctrine of common purpose to apply in any case, it has to be proved that the accused did something to associate himself with the actions of the person who actually committed the offence knowing that the other person intended to commit the said offence or foreseeing that possibility; see State v Mubaiwa & Anor 1992 (2) ZLR 362 (S); State v Chauke & Anor 2000 (2) ZLR 494 (S)…,.

This position is well articulated by the esteemed author BURCHELL in South African Criminal Law and Procedure Volume 1, 3rd Edition…, wherein the learned author said;

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within the common design.”

In casu, if it is proved that the appellant indeed connived with Cordination Magavhe or Barbra Masvosvere or Shelter Ezra, or all of them, in perpetrating this fraud, the appellant's criminal liability, irrespective of his actual role, may be inferred on the basis of the doctrine of common purpose.

In specific terms, it is said the appellant agreed to commit this offence; that he provided the laptop used to generate the fraudulent documents; that he acted as a sentinel during the commission of the offence; and that he got the spoils of the loot.

This is however denied by the appellant, but the court a quo disbelieved him.

Babra's evidence is that Cordination, who was the brains behind this fraud, briefed her that the appellant would be engaging in surveillance during the execution of the actual fraud by Babra, as a sentinel, to ensure Babra's safety.

Indeed, Babra was given, by Cordination, and actually used, the fraudulent documents generated from the appellant's laptop.

In her evidence, Babra said that although she personally had not met the appellant, some person Cordination told her was the appellant would call her while she was executing the fraud giving her real time information of what was happening around the crime scene at Mukuru.Com Company premises at Chivi Growth Point.

Babra said after successfully executing the fraud, she met Cordination and Shelter after which they proceeded to Zvishavane to share the loot.

She said the other person she was told was the appellant was constantly calling them updating them on what was happening at Mukuru.Com Company branch at Chivi Growth Point in the aftermath of the commission of this offence. She said this person was identified by Cordination as the appellant and that the appellant had therefore not joined them specifically for that reason.

Lastly, Babra said as they shared the money, Cordination reserved another share for the appellant and returned to Chivi to ostensibly give the appellant his share.

Indeed, when police detectives first sighted Cordination, later that day, he was in the company of the appellant at Chivi Growth Point and the appellant was later found with part of the money stolen from Mukuru.Com Company that very day.

The assessment of the credibility of witnesses is within the domain or province of the court a quo.

Babra's evidence was that although she had not physically met the appellant at any stage, she was briefed that the appellant's role was to provide surveillance or act as a sentinel and that some other person indeed appraised her on the telephone on what was happening.

Indeed, it would have been desirable for the police to have checked the telephone records for all persons involved to verify Babra's evidence.

Nonetheless, such an omission, in my view, is not fatal to Babra's evidence. Babra was not known to the appellant. She is a convicted accomplice. She had nothing to gain by falsely incriminating the appellant.

The question which arises, therefore, is why would she go out of her way to fabricate the existence and role of a fourth player in the execution of this offence.

The court a quo found none and there is no such reason, in my view.

On that basis, she was found to be a credible witness and the danger of false incrimination was found to be none existent.

On the other hand, the same cannot be said for Cordination.

Despite later pleading guilty to this offence, Cordination, upon his arrest, in the early hours of 12 January 2019, denied any role in the commission of the offence - even after some US$307 had been found under his bed.

This can be gleaned from a copy of the police running diary log produced through the investigating officer.

Cordination denied ever being involved in this matter and said the money found in his possession was money given to him by his parents (see the version of page 52 recorded in Shona).

Apparently, he only admitted to the offence when police's evidence became overwhelming as investigations progressed.

When Cordination testified, he sought to exonerate the appellant alleging that the appellant played no role. He denied ever telling Babra that the appellant was involved and that the money he gave the appellant, stolen from Mukuru.Com, was to pay a debt owed to the appellant. He further said that he used the appellant's laptop to generate fraudulent documents without the appellant's knowledge.

In my respectful view, Cordination's evidence was properly rejected.

He is the appellant's friend and the two were very close. He admitted, under cross-examination, that he would naturally protect the appellant (see page 46 of the record). Most importantly, he initially lied to the police.

The court a quo was correct to reject his evidence and assess him as an incredible witness.

It is for the said reasons that the appellant's criminal liability was based on the doctrine of common purpose or a co-perpetrator.

The court a quo thus found, that, the appellant was at the scene of crime at N. Richards Wholesale; that he had knowledge of the offence or criminal act; that he worked in cahoots with the other accomplices, including Babra, by manifesting a sharing of common purpose in providing his laptop, acting as a sentinel, providing surveillance, and getting a share of the criminal proceeds.

The appellant, on that basis, has the necessary mens rea to commit the fraud; see S v Mgedezi & Ors 1989 (1) SA 687 (A).

The next issue to consider is the question of circumstantial evidence.

The celebrated case of R v Blom 1939 AD 188…, outlines how circumstantial evidence should be treated by the trial court in criminal matters. The cardinal principles are that;

(i) That, the inference sought to be drawn must be consistent with all proved facts. If not, the inference cannot be drawn.

(ii) That, 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 doubt whether the inference sought to be drawn is the correct one; see also S v Tambo 2007 (2) ZLR 33 H; S v Marange & Others 1991 (1) ZLR 244 (S).

It is competent for a court to return a verdict of guilty solely on circumstantial evidence; see S v Shonhiwa 1987 (1) ZLR 215 (S); S v Vhera 2003 (1) ZLR 668 (H)…,.

The court a quo applied these principles to the circumstances of this case. The proved facts were juxtaposed with the appellant's explanation and the trial court concluded, that, the appellant's explanation cannot possibly be true.

The relevant facts which were considered are not in issue and are as follows:

(a) Cordination, who was the brains behind this fraud, is the appellant's close friend. This is admitted by the appellant. In fact, the appellant and Cordination were later seen together that very same day by the police.

(b) The appellant was present at the crime scene at the material time. This is confirmed not only by the CCTV but by the appellant himself. The appellant's explanation is that N. Richards Wholesale is a public place and that he wanted to see a friend there and to do some shopping. Indeed, that may be so. The appellant actually passed by the complainant's booth and greeted her.

(c) The appellant was found in possession of some of the stolen cash, in United States dollars, identified by the serial numbers, the very day the money had been stolen. Upon his arrest, the appellant, as per the investigating officer, said he had been given the money by his relatives. However, later, after the money had been matched with the serial numbers, he changed the story and said he was given the money by Cordination as payment for money he was owed by Cordination.

It is therefore clear the appellant was not consistent in explaining how he became in possession of the stolen money and had therefore told a lie on a material issue.

(d) The fraudulent documents used to commit the fraud were generated from the appellant's laptop. The appellant's explanation is that Cordination is the one who generated the fraudulent documents using the appellant's laptop as he had unlimited access to it and it had no password.

No further explanation is given as to why Cordination chose to use the appellant's laptop.

Indeed, each of those facts proven or not in issue, taken in isolation may, on their own, not lead to any adverse inference. However, when they are considered conjunctively, together with the accused's own explanation, a proper adverse inference. in my view, was made.

The close friendship the appellant had with Cordination is admitted.

Is it plausible that the appellant would be paid his debt with the stolen money the very day it was stolen?

Why would the appellant lie to the police about the source of this money initially?

One would raise eyebrows as to why Cordination would choose to use a dear friend's laptop to generate fraudulent documents and why the appellant did not know about it. The appellant's presence at the crime scene dovetails with Babra's evidence as regards the appellant's role.

In my view, the court a quo assessed the credibility of all the witnesses and made findings of fact.

The appellant's evidence, or version of events, was rightly rejected.

The principles of law applicable to the facts of co-perpetrators or acting in common purpose, together with circumstantial evidence, are not only well articulated but properly applied to the facts of this case. I find no misdirection at all on the part of the court a quo. The threshold or degree of proof required in criminal matters was achieved.

The appellant's conviction is unassailable in the circumstances. Consequently, the appeal against conviction cannot succeed.

In relation to sentence, the court a quo gave very cogent reasons as why an effective custodial sentence was appropriate.

I share the same view, that, the option of community service is wholly inappropriate in this case.

All the four culprits were given similar sentences in line with the principle of uniformity in treating accomplices in the absence of any objective factors to distinguish their sentences or to treat them differently.

The moral blameworthiness of the appellant is very high in this case and deserves severe censure.

This was a well-planned and executed criminal act of fraud. There was an element of planning and premeditation. A number of people were involved who played different roles to ensure success of the criminal enterprise. It was a gang offence, involving team work. The appellant derived benefit from his criminal conduct and was properly degorged of such benefit by being ordered to pay restitution.

As a first offender, part of his sentence was suspended on condition of good behaviour.

Even after deciding to exercise his rights, by pleading not guilty to the charge, unlike his accomplices, he was not treated differently.

The company from which the appellant and his colleagues stole from provides an invaluable service to the general public and well-being of our economy.

At the end of the day, a proper balance of the mitigatory and aggravating factors shows, that, the sentence of community service was wholly inappropriate. It would send wrongful and harmful signals to persons of like mind and put the whole criminal justice system into disrepute.

Clearly, the appeal against sentence lacks merit.

Accordingly, it is ordered that the appeal, in respect of both conviction and sentence, be and is hereby dismissed.

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellants lodged the present appeal against sentence imposed by the court a quo.

The appellants were both convicted of two counts of assault as defined in section 189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; and, secondly, convicted of indicating a witch or wizard as defined in section 99 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

For assault, the accused were each sentenced to 12 months imprisonment of which 3 months were suspended on usual conditions of good behaviour.

The salient facts of the State case were that the appellants and other relatives at a funeral resisted the traditional way of passing condolences by shaking hands. The complainant stretched her hand to console the appellants at a funeral and was rebuffed; following which, the appellants labelled the complainant a witch responsible for causing the death of their niece.

After indicating the complainant a witch, the appellants went outside and retrieved a log with which to assault the complainant.

The complainant escaped to a nearby bush but was followed by the appellants. The first appellant struck the complainant with an iron bar on the brow bone causing injuries and bleeding from the eye, nose, and mouth. The second appellant also struck the complainant on the back collarbone. The two then dragged the appellant back to the yard where there was a crowd and they wanted to throw the complainant in the fire. The complainant was rescued by other women and made good her escape.

The appellants were further charged and convicted of assaulting Christopher Magaya, the husband of the complainant in Count 1 and 2, when he sought to intervene and rescue his wife.

For imputation as a wizard or witch, in contravention of section 99 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the appellants were each sentenced to pay a fine of $200, or, in default of payment, 30 days.

They did not raise any qualms.

For the two counts for which an effective prison term was imposed, the appellants raised two (2) grounds of appeal as follows:

“1. The trial magistrate erred and misdirected herself in exercise of her sentencing discretion by failing to conduct an inquiry into the appropriateness of community service in circumstances where she settled for a prison term of less than 24 months.

2. The court a quo erred and misdirected itself in its approach to the issue of community service, a real and substantial form of punishment. The trial court misdirected itself by sentencing the appellants to a custodial sentence.”

A perusal of the record of proceedings from the court a quo reveal the trial court did consider community service but discarded it as inappropriate given the nature of assault.

To the extent that community service and a fine were not viewed as appropriate, the trial court cannot be said to have erred in not considering the other sentencing options.

The first ground of appeal seems to suggest, that, the court had to carry out the community service placement enquiry because the sentence imposed is less than 24 months.

That the sentences fall within the community service grid should not be misconstrued to take away the court's sentencing discretion.

The trial court is, however, expected to judiciously exercise its sentencing discretion and come up with an appropriate sentence.

It is not for the Community Service's Officer to come up with the final decision of whether or not community service is appropriate in the circumstances. The Community Service Officer may recommend the suitability or otherwise of a probationer, but remains his opinion, and, it's not binding on the sentencing court.

What is important, though, is that, in the exercise of the sentencing discretion, the trial court, upon considering an appropriate sentence, must, and shall, give reasons for discarding one form of sentence given the circumstances.

The court a quo cannot be faulted for not requesting the carrying out of a community service enquiry for it did not consider community service as appropriate given the nature of the assault visited on an elderly woman by the two appellants - who used an iron bar and log interchangeably.

However, the trial court's failure to outline reasons for not imposing community service is an anomaly which amounts to a misdirection.

The second ground of appeal speaks to improper exercise of sentencing discretion, whereby, the court a quo is said to have misdirected itself by imposing an effective prison custodial sentence where circumstances warranted imposition of other sentencing options, like a fine and/or community service.

The penalty provisions for the offence of assault provides for the option of a fine.

It is settled, that, where the penalty provisions provides for the option of a fine, then, imprisonment should only be considered as a last resort for the very bad cases.

It would be a misdirection to start off at the deep end and impose imprisonment without giving due weight to the sentencing option so provided by statute.

There has to be clear, compelling reasons justifying imprisonment.

MATHONSI J, in S v Mulauzi HB159-16 emphasised, that, where a statute provides for a fine or imprisonment, it is a misdirection on the part of the sentencing court to impose imprisonment without giving serious consideration first and foremost to a fine.

See also S v Ncube 1989 (2) ZLR 232 in which it was held that:

“Whenever possible ,and more particularly, where the imposition of a fine is a permissible penalty, a fine should be considered before imprisonment. Only when the facts are such that a fine is inappropriate should imprisonment be considered. First offenders, in particular, should be kept out of prison as much as possible…,.”

See also S v Dzotizei HH126-14.

In this case, both accused are first offenders who pleaded guilty to an offence of assault, in which, according to the penalty provisions, a fine is permissible.

The complainant, an old woman, was seriously injured, but, the medical evidence is clear that there was no potential danger to life and there was no permanent injuries or disabilities occasioned.

The nature of injuries occasioned, when viewed together with the plea of guilty and the motive or reasons behind the commission of the offences, in this case, ought to have exercised the mind of the court a quo in considering the appropriate sentence.

In this case, the court a quo did not give regard to the circumstances surrounding the commission of the offence; whereas, it is not a defence to have a strong belief in witchcraft, the mitigatory nature of such deep rooted belief, especially amongst the rural folk, cannot be whisked away as it goes to the centre of the motive to commit the crime.

The belief in witchcraft, in the circumstances, although not reducing criminal liability, in that the belief is not a defence, it certainly qualifies as mitigatory and as a factor reducing the moral blameworthiness of the appellants.

The belief in witchcraft is what motivated the appellants to commit the crime, and, given the rural set-up, such belief is not foreign and would appropriately weigh in as mitigatory: see S v Techu and Others HH271-15 and S v Misimo and Others HH358-17.

Cultural beliefs can motivate commission of offences, and, where such is the case, the sentencing court should not ignore the impact on reduction of the moral blameworthiness of the appellants.

Such reduction of moral blameworthiness, brought about by the belief in witchcraft, ought to have been considered as mitigatory, together with the plea of guilty and the fact that the appellants are first offenders ,cumulatively considered, ought to have weighed heavily in favour of upholding the option of a fine as provided for by the penalty provision.

On belief in witchcraft being mitigatory, section 101 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is instructive. It states:

“It shall not be a defence to murder, assault, or any other crime, that, the accused was actuated by a genuine belief that the victim was a witch or wizard, but, a court convicting such person may take such belief into account when imposing sentence upon him or her for the crime.”

See also S v Hamunakwadi ZLR (1) 2015 392 and S v Musimo and Others HH358-17.

In my view, the underpinning principle in considering the belief in witchcraft as mitigatory emanates from the general trend, that, witchcraft accusations are almost always preceded by tension and conflict within the family, village, and on community at large. Emotions and tempers flare in communities in which witchcraft beliefs are deep rooted.

In my view, it would not be proper to ignore the background while at the same time not condoning the criminal infringement.

The belief tends to minimise the moral blameworthiness – albeit, not reducing the criminal liability.

In the present case, therefore, the sentencing court, in exercising its sentencing discretion, misdirected itself by not giving regard to the sentencing provision which is clear.

Section 189(1)(a) of the Criminal Law (Codification and Reform) Act reads:

“Any person who commits an assault upon another person intends to cause that other person bodily harm, or realising there is a real risk or possibility that bodily harm may result, shall be guilty of assault and liable to a fine up to exceeding level fourteen (14) or imprisonment for a period not exceeding ten years or both.”

That sentencing provision, when considered together with the circumstances of the commission of the offence, and all the other mitigatory factors, speaks loudly of the need to explore other sentencing options and not imprisonment.

The sentencing discretion was not properly exercised thus warranting interference by this court.

It is accordingly ordered that:

1. The appeal against sentence in respect of Count 2 and 3 be and is hereby upheld.

2. The custodial sentence imposed by the court a quo is set aside and substituted as follows:

Both counts as one for sentence. Each accused is to pay RTGS$500 or in default of payment 3 months imprisonment.

In addition, 6 months imprisonment wholly suspended for 5 years on condition accused does not within that period commit any offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

HMT05-20 : TELLMORE MANWERE and SEBASTINE TANAKA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellants were convicted and sentenced for contravention of section 78(1) of the Forest Act [Chapter 19:05]. The appellants were convicted of having removed 32 gum trees by cutting them down unlawfully and without authority from the Forestry Commission of Zimbabwe.

The appellants were sentenced to 24 months imprisonment of which 4 months imprisonment were suspended on condition of restitution of the complainant.

Aggrieved by both conviction and sentence both the appellants lodged the present appeal with this court.

The respondent partly opposed the appeal in that it conceded the sentence imposed was unduly harsh, whilst it opposed the appeal against conviction.

The appellants raised grounds of appeal as follows:

“Add Conviction

1. The trial Court erred in disregarding the fact that there was no evidence linking the accused person to the cutting of the trees.

2. The trial Court erred in disregarding the fact that there was no evidence showing any transport system to ferry the logs from the alleged crime scene.

3. The trial Court erred in placing credence in witness evidence of Artwell who had a peculiar interest to safeguard his job by ensuring that anyone was charged and convicted as the trees has been cut under his watch.

4. The trial Court erred in accepting that the Appellants were the persons who cut down the trees whilst not giving due weight to the fact that no tool, cart, or any material was discovered that had been used in the commission of the alleged crime.

5. The trial Court erred by finding the accused persons guilty based only on circumstantial evidence.

6. The trial Magistrate erred by ignoring evidence which tended to be in favour of the accused person.

Add Sentence

7. The trial Court erred by failing to give due weight to the following mitigatory factors which would have resulted in a lessor sentence…,.”

The brief facts informing the charge are that both accused persons, on 10 February 2019, cut down gum trees and hid the poles in their village. The appellants were seen by Artwell Mushowe who then laid an ambush for the appellants. The accused later came to collect the poles, and, as they tied the poles for collection, they were intercepted and then arrested.

It is clear from the grounds of appeal against conviction that the appellants are questioning the finding of the court and its reliance on the witness evidence.

It is apparent in this case, that, gum poles were removed from the forest and that both appellants were apprehended at/or close to the pile while tying the poles.

The court a quo had to decide on whether or not, from the evidence adduced, the State had discharged the required onus of proving the case beyond reasonable doubt.

The court a quo did not hold the appellants explanations to be probable and reasonably possibly true given the evidence adduced by the State.

The first appellant denied all allegations, pointing out his attention was drawn to the scene by people talking. The second appellant denied saying the poles were not at his residence and that on the day in question he was with his wife.

The findings of the court a quo were based on credibility.

The court was impressed by the State witnesses and not the appellants.

It is settled that credibility or otherwise of witnesses is a domain of the trial court. The findings of fact are not lightly interfered with. It is only when the factual findings are at variance with the facts on record that the Appellate Court can interfere with the findings of the trier of fact, who, for the obvious reasons, has the opportunity to hear, observe, and assess the witnesses.

The main witness, Artwell Mushowe, gave clear evidence of how the appellants were found in the vicinity of the stolen poles securing same for purposes of ferrying the poles away.

The appellants themselves do not dispute being in the vicinity of the stolen poles.

The witness was well known to both appellants, and, as such, no question of mistaken identity.

In fact, at the time of arrest, the witness conversed with the appellants who were apologetic.

It is also on record, that, the witness and the appellants enjoyed cordial relations hence the trial court found no reason why the witness would have falsely incriminated the appellants.

That the witness, Artwell Mushowe, was a security guard, cannot be held against him given the totality of the evidence.

The bare denials by the appellants, and the fact that they were found bundling the poles for purposes of later ferrying, supports the finding of the court a quo.

The conviction was therefore well-founded on evidence anchored on the record. The findings of the court a quo, on both facts and law, can therefore not be faulted.

Turning to the sentence imposed, it is apparent the court a quo did not give due weight to the circumstances of the commission of the offence, mitigatory and aggravatory factors.

Lip service was paid to the laid out sentencing principles of seeking to strike a balance between the offence and the offender while at the same time tempering justice with mercy.

A reading of the penalty provision of the relevant charge provides for the option of a fine.

It has been said, on countless times by this court, that, to consider imprisonment where the penalty provision gives the option of a fine, without cogent reasons, is a misdirection.

Imprisonment is a preserve for the very bad and serious cases - not minor infractions.

In casu, both appellants were first offenders, family men with dependants. The value of the poles forming the subject of the offence was given as $320 most of which were recovered. The court opted for imprisonment of which no portion was suspended on conditions of good behaviour.

There are no reasons recorded why first offenders were not granted the opportunity to have a suspended prison term act as a deterring factor.

Punishment is not meant to break the individual but should be appropriately considered so as to have the positive effects of rehabilitating the offender.

The reasons for sentence are devoid of the thought process of how the trial court discarded the other sentencing options, namely, a fine and/or community service.

To this end, therefore, the court a quo did not properly exercise its sentencing discretion. We are at large to interfere with the sentence which, in the circumstances, is viewed as unduly harsh.

In the result, the appeal against conviction is dismissed and the appeal against sentence is upheld.

Accordingly it is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence succeeds. The sentence imposed by the court a quo is set aside and substituted as follows:

Each accused is to pay a fine of RTGS$500, or, in default of payment, 3 months imprisonment. In addition, 3 months imprisonment is suspended for 3 years on condition accused does not within that period commit any offence involving dishonesty for that he is sentenced to imprisonment without the option of a fine.

HMT07-20 : FIBIAN MUNYUKI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 7 June 2019, the appellant was arraigned at Mutare Magistrates Court facing a charge of “unlawful dealing in or possession of precious stones” in contravention of section 3(1) of the Precious Stones Act [Chapter 21:06].

The State alleged, that, on 25 December 2018, and at Sakubva Bus Terminus, Birchnough–Mutare Road, the appellant, and one Kumbirai Karani, unlawfully dealt in or possessed 5 pieces of diamonds weighing 14,80 carats and valued at $1,267=17 without being exempted in terms of the Precious Stones Act.

At the close of the State case, Kumbirai Karani was discharged, the appellant was put on his defence.

He was subsequently convicted and sentenced to 5 years imprisonment.

The 5 pieces of diamonds were forfeited to the State and were to be handed over to the Ministry of Mines.

On 3 September 2019, the appellant noted an appeal against both conviction and sentence and spelt out the grounds of appeal as follows:

“1.0 Ad Conviction

1.1 The learned Provincial Magistrate grossly erred to convict the appellant when there were gross inconsistencies in the evidence of the witnesses. The two State witnesses conflicted each other on where the diamonds were allegedly recovered from as one indicated that the diamonds were recovered from the appellant's right hand, whilst the other one indicated that the diamonds were recovered from appellant's right trousers pocket.

1.2 The court a quo erred grossly when it made a finding that the appellant had implicated the other co-accused as the owner of the diamonds, hence was the one who was in possession of diamonds. That finding by the court is both factually and legally faulty.

2.0 Ad Sentence

The sentence that was imposed by the learned Provincial Magistrate is disturbingly harsh in its excessiveness as to induce a sense of shock and the High Court is going to interfere with it, in that:

(i) The court a quo erred when it did not make a finding that the reasons that were proffered by the appellant amounted to special circumstances.

(ii) The court a quo did not give reasons why it reflected the reasons proffered by the appellant were really special reasons.”

BACKGROUND

According to the State precis, the appellant was employed as a police detail by the Ministry of Home Affairs and resided at 2914 Crescent, Warren Park, Harare. On 25 December 2018, at around 1800 hours, Detective Assistant Inspector Dhliwe Mpofu received information that the appellant was in possession of diamonds and had boarded a vehicle travelling from Chiadzwa to Mutare.

The detective then teamed up with Detective Assistant Inspector Mashizha, Detective Sergeant Major Manhivi, and Detective Constable Chidhakwa and proceeded to intercept the appellant at Sakubva bus stop along Birchnough–Mutare road.

The detectives identified themselves to the appellant by producing their police identity cards. Detective Assistant Inspector D. Mpofu searched the appellant, and the appellant was found with five pieces of diamonds in his right hand. The other members of the team were witnessing the search being conducted.

The appellant implicated his co-accused as the owner of the recovered diamonds.

The appellant did not have a permit authorising him to deal or possess diamonds.

The five pieces of diamonds weighed 14.80 carats and were valued at $1,267=17.

On the date of hearing of the appeal, we allowed counsel for the appellant to amend the appellant's defective Notice of Appeal on the portion of the relief or prayer sought. That amendment was done by consent of the State counsel.

In his submissions, the appellant's counsel contended, that, the record exhibits material discrepancies between what is contained in the State Outline, and also what is said by Detective Assistant Inspector Mpofu.

In his own oral submissions, counsel for the appellant repeated that “there are also minute variations which are apparent from the evidence he gave, which, if holistically considered” should have put Detective Assistant Inspector Mpofu's credibility to question and create a reasonable, if not an actual doubt in the State case entitling the appellant to an acquittal.

Counsel for the appellant attacked the evidence of Detective Assistant Inspector Mpofu stretching from the nature of the report the police detail got, to the number of people who were alleged to have possessed diamonds, and, more particularly, as to where Detective Assistant Inspector Mpofu recovered the diamonds from.

He urged the court to conclude, that, the detective's narration of what transpired glittered with glaring inconsistencies.

On p24 of the record of the proceedings, the evidence of Detective Assistant Inspector Mpofu is captured as follows:

“Accused was seated inside the motor vehicle on the front passenger seat. I observed accused putting his right hand, whilst it was still in his pocket, a struggle ensued eventually I recovered 5 pieces of diamonds clasped in his palm.”

Detective Assistant Inspector Mpofu was consistent on this aspect and we fail to see the alleged inconsistencies being relied upon by the appellant; in any event, not every inconsistency affects the credibility of a witness: see S v Lawrence & Ors 1989 (1) ZLR 29 (S); S v Dube SC225-92.

On p41 of the record of proceedings, Detective Constable Collen Chidhakwa told the court that:

“Detective Assistant Inspector Mpofu then searched accused and he recovered 5 pieces of diamonds from the accused (appellant).”

And on p52 the police detective added:

“I saw Detective Assistant Inspector Mpofu putting his hand into the pocket and accused's hand was also in the pocket.”

It is apparent the mere comparison of the two State witnesses evidence on record shows clearly what happened on the day in question.

Upon search of the appellant by detectives, the appellant reacted by trying to secure the 5 pieces of diamonds contained in his trousers pocket by clasping them with his right hand, the detective saw the appellant's movement and placed his hand in the appellant's pocket, thereby recovering the diamonds from the appellant's hand.

We fail to see the nature of inconsistencies nor discrepancies that can affect the witnesses credibility.

All in all, the evidence of the police details shows a smooth flow of their narrations of the events and we see no basis of interfering with the founding of credibility by the trial court.

The appeal against conviction has no merit and it is dismissed.

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

On 27 November 2019, we dismissed this appeal in its entirety and indicated that our reasons for dismissal would follow. These are they.

On 10 April 2019, the appellant appeared on charges of contravening section 131(1)(a) as read with section 131(2)(e) of the Criminal Code for unlawful entry into premises in aggravating circumstances; he was convicted after a full trial and sentenced to 36 months imprisonment with 6 months imprisonment being suspended for 5 years on the usual conditions of future good behaviour; a further 12 months were further suspended on conditions of restitution.

When the appellant appeared for trial he was unrepresented.

The appellant noted an appeal against both conviction and sentence outlining the following grounds:

“AD CONVICTION

1. The Honourable Court a quo erred in convicting the appellant based on circumstantial evidence when in fact the guilt of the appellant was not the only reasonable inference to be drawn from the circumstances of the case.

2. The Honourable Court a quo erred in disregarding the defence raised by the appellant when in fact the defence was reasonably probably true vis-a-vis the fact that the defence withstood the rigors of cross-examination.

AD SENTENCE

The Honourable Court a quo erred in sentencing the appellant to restitute the sum of $2,500 to the complainant when in fact no proper assessment or evaluations of the unrecovered goods had been made.”

BACKGROUND

The State alleged, that, on the period extending from 15 July 2018 to 27 January 2019, at Tom Homestead, Gwama Village, Chief Mutema, Chipinge, the appellant unlawfully, and intentionally entered Otilia Chiyangwa's bedroom through breaking the window which was closed and then stole various clothing, a solar panel, and two black Omega speakers belonging to the complainant.

On 27 January 2019, the complainant arrived from South Africa and discovered that her house had been broken into.

On 29 January 2019, the complainant reported the matter to the police, leading to the recovery of some of the property stolen. The complainant also managed to recover some of the stolen property from people who had bought from the appellant.

The appellant pleaded not guilty to the charges, and, in his defence, stated that, he shifted clothes and property of his young brother and son from their homes due to incessant burglaries which were taking place.

He did not know part of the property he shifted to his home belonged to the complainant.

He then called his son, Kenneth Sithole, to inform him what he had done and the reason for doing so. He denied ever going to the complainant's residence at all.

It is not disputed by the defence, that, the complainant left for South Africa in 2018 leaving her property secured in her house; when she returned, in January 2019, she discovered that her house had been broken into and property stolen.

Some of the stolen property was recovered from the appellant by the police during investigations; the other property was recovered by the complainant from third parties who had bought that property from the appellant.

In assessing evidence adduced by the State, the learned magistrate, properly, in our view, applied circumstantial evidence and convicted the appellant.

The law regarding circumstantial evidence is settled:

“(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion, that, within all human probability, the crime was committed by the accused and no one else; and

(iv) The circumstantial evidence, in order to sustain conviction, must be complete and inescapable of explanation by any other hypothesis than that of guilt of the accused, but, should be inconsistent with his innocence:”

See R v Bloom 1939 AD 188…,.; S v Makunyanga HH179-13; S v Shomwa 1987 (1) ZLR 215; R v Sibanda 1965 RLR 363.

The record of proceedings, clearly, in our view, shows that the complainant's house was broken into through a closed window and property was stolen. That is not in dispute.

The stolen property was recovered from the appellant's place and other from people who had bought such property from the appellant.

The property so recovered belongs to the complainant.

We do not accept the argument by the State which submitted, in its heads, that, it is not clear as to how the complainant's property was broken into, and that the complainant's relatives might have taken the property.

That inference is far-fetched in our view;

(i) First, the appellant does not say he got the property from the complainant's contacts;

(ii) Secondly, in its own papers, the State contends, that, the complainant's house was broken into and that various properties were stolen; some of which was found in the appellant's possession and others from those who had bought from the appellant.

It is true, that, an accused has no onus to prove his innocence, but, in this case, surely he has a duty to prove his possession as an innocent one.

He ought to have, at least, called his brother and son to come and explain how they came to possess the complainant's property which was found in the appellant's possession or sold by the appellant.

The appellant did not challenge much of the State's evidence and could not allege that the same property which the complainant claimed to be hers belonged to the appellant's brother and son.

He stated that he was willing to compensate the complainant; why would the appellant offer to compensate the complainant if his possession or acquisition of that property was innocent?

Further, if the appellant's intention was to safeguard the property, why would he sell that property to third parties?

It is because of the foregoing analysis that we felt the concession made by the State was not proper, in our view, and we did not accept it.

We see no fault in the approach used by the trial court and are satisfied that the conviction of the appellant is unassailable.

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

Pursuant to the conviction and sentence for Attempted Murder as defined in section 189(1) as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] the appellant lodged the present appeal with this court.

The appellant, a girlfriend to the complainant, was convicted of unlawfully stabbing the complainant, one Josam Mapinge, in circumstances where there was realisation that there was a real risk or possibility that murder may be committed.

The appellant, who stabbed the complainant, Josam Mapinge, with a knife once in the abdomen, was convicted of attempted murder and sentenced to 6 years imprisonment of which 2 years imprisonment was suspended on the usual conditions of good behaviour.

The brief circumstances informing the charge, as discerned from the record, are as follows:

The appellant visited the complainant, the boyfriend. She requested for his cell phone to read some text messages. The complainant gave her the cell phone, and, when he requested the phone back, the complainant resisted and locked herself inside while the complainant was outside. Later, the complainant gained entry into the room and asked for his phone. The appellant was not forthcoming and she then picked the knife from the kitchen and stabbed the complainant.

Dissatisfied with both conviction and sentence, the appellant lodged seven (7) grounds of appeal against conviction and four (4) grounds of appeal against sentence.

The grounds, as discerned from the Notice of Appeal, are as follows:

“Conviction

1. The learned Magistrate erred and misdirected herself at law and fact when she convicted the appellant of attempted murder.

2. The learned Magistrate further erred and misdirected herself at law and fact when she used an armchair approach and stereotyped victims of sexual assault by the complainant.

3. The learned Magistrate further erred and misdirected herself when she rejected the appellant's defence and explanation that she was a victim of sexual assault.

4. The learned Magistrate further erred and misdirected herself when she rejected the appellant's contention that she was acting in self defence.

5. The Trial Magistrate further failed to apply her mind to the inherent dangers of accepting the complainant's testimony (without corroboration) as a single witness to the incident. Ultimately, she failed to apply caution to that evidence.

6. The Trial Magistrate further grossly erred and misdirected herself when she rejected the evidence of the Appellant's witness(es).

7. The Trial Magistrate further erred and misdirected herself when she placed an onus on the appellant to prove her innocence of the charge.

Sentence

1. The sentence that was imposed by the Trial Court induces a grave sense of shock and disbelief and is not in tandem with other decided cases.

2. The Trial Magistrate erred and misdirected herself in her approach to sentence when she paid lip service to the highly mitigatory features in favour of the appellant.

3. The learned Magistrate further erred and misdirected herself when she injudiciously criticized and immortalized the appellant for engaging in an adulterous relationship with the complainant.

4. The learned Magistrate further erred and misdirected herself by sensationally refusing to impose community service or a hefty fine on the appellant.”

The grounds of appeal in respect of conviction are clearly repetitive.

In summary, the appellant took offence with the rejection of the defence proffered by the appellant.

Further, the appellant took issues with the court accepting the evidence of the complainant while rejecting that of the accused and her witnesses.

The appellant thus attacked the factual and legal finding by the court a quo.

What falls for consideration here is whether or not the trial court properly rejected the accused's defence of self-defence.

It is common cause the defence is provided for in section 253 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In order for one to succeed in relying on the defence, one must prove that:

(i) He or she did or omitted to do the thing, the unlawful attack had commenced or was imminent;
(ii) His or her conduct was necessary to avert the unlawful attack or that he or she could not escape from or avert the attack;
(iii) The means used were reasonable in all the circumstances; and
(iv) That any harm or injury caused by his or her conduct was caused to the attacker.

Clearly, the defence is only available if the requirements are all met.

Only when there is an unlawful or imminent unlawful attack can one motivate the defence of self-defence.

The trial court had to look at the circumstances presented before it and analyse the evidence to deduce if the appellant qualified for the defence.

The court a quo believed the State witnesses and decided that the appellant did not satisfy the requirements of the defence and thus found her guilty as charged.

A close look at the record of proceedings reveals the following common cause aspects:

1. That the appellant and complainant were lovers and were together on the night in question.

2. That they parted ways after having a misunderstanding over a text message on the complainant's phone.

3. That the complainant followed the accused to her house and that he forced his way in using the back door after failing to be granted access through the front door.

4. That a misunderstanding ensued which culminated in the complainant being stabbed by the appellant.

The complainant was the only witness in the State case.

There was need to be cautious of his evidence so as to eliminate the danger of false incriminations; moreso, given the common cause aspect that the complainant forced himself into the appellant's house when the latter had denied him access over the disagreement about the text message.

Given the manner in which the complainant entered, and the disagreement that existed, there was need to consider the sufficiency of the evidence upon which the court convicted.

The complainant's evidence, and the accused's evidence, and probabilities ought to be weighed in such a manner as to eliminate the dangers of false incrimination.

It is settled, that, the accused in a criminal matter does not have to prove his innocence, but, that the State has to prove the accused's guilt beyond reasonable doubt: see S v Shack 2001 (2) SA CR 185 SC 17 and S v Ndlovu & Others HB81-06.

See also S v Kuiper 2000 (1) ZLR 113.

Once the accused's story is reasonably possibly true, that, the accused ought to be granted the benefit of doubt and be acquitted.

In S v Makanyanga 1996 (2) ZLR 231 GILLESPIE J stated that:

“Proof beyond reasonable doubt demands more than that a complainant should be believed and the accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true….,.”

The accused, in this case, raised the defence of self-defence and the accused was to prove that she was under attack, and that when she engaged in an altercation on the attacker it was to avert the unlawful attack in a reasonable manner: see S v Tafirei Runesu HMA37-17; S v Mabvume HH39-16; and S v Manzanza HMA02-16.

In S v Manzanza HMA02-16 MAWADZE J made the following pertinent remarks on assessment of what is “reasonable” when he remarked:

“In deciding what is reasonable in the circumstances of each case, the court, as already alluded to, should place itself in the shoes of the accused person and not expect the accused person to behave or act like a movie star novo, a super human with papal infallibility or an agent.”

In the present case, the court was faced with the complainant's evidence and the appellant's evidence.

The court a quo, in its judgment, pointed out it had to juxtapose the complainant and the appellant's version and determine which one was true.

Such approach, in the absence of demonstration of reasoning of elimination of the danger of false incrimination, would be faulty.

It is permissible to convict on a single witness evidence, but, the evidence has to be properly weighed with the totality of circumstances and not just balance the evidence of the witnesses in the abstract ignoring the obvious requirement on the State to prove its case beyond reasonable doubt.

It is appreciated the court a quo had the benefit of assessing credibility of the witness.

Given the evidence of the complainant and the appellant, the court a quo ought to have considered that evidence against the defence raised.

The key factor being, that, the accused has no onus to prove his or her innocence; once his defence is reasonably possibly true, then, he ought to be granted the benefit of doubt.

The court a quo, in rejecting the appellant's defence, made inferences while at the same time disregarding other possibilities without justification.

The court a quo had its own reconstruction of what it expected the appellant to have behaved like.

This then leads to the dismissal of the defence of self without considering whether or not it was reasonable in the circumstances the appellant found herself in as enunciated in S v Manzanza HMA02-16 and S v Ntuli 1975 (1) SA 429.

The court was dismissive of the defence of self defence as it made a finding, that, the appellant was aggrieved by the fact that the complainant, whom she had been in an adulterous affair with for 5 years, was seeing another woman and that she was incensed with jealousy since she anticipated marriage.

This appeared to be an inference drawn by the court despite the common cause aspects that the complainant is the one who pursued the appellant at the house, and, despite being denied entry, forced his way into the complainant's house.

This intrusion is what the appellant sought to wade off.

The appellant's defence was that the complainant used the back door to enter and he sought to sexually impose himself on her.

It is in the context of that attack that the self-defence was motivated, and, of course, the issue of whether the means used were reasonable in the circumstances arises.

The court a quo rejected the defence version on the basis that there were two (2) other people in the house and assumed the complainant would not have made sexual overtures.

Further, in its judgment, the court a quo further remarked:

“It was impossible for the complainant to raise his chest whilst his hand was propping her private parts and the other taking out his penis….,. If it happened in that manner, it could not be true for the accused to say the complainant was pressing her down and could not have freed herself. What it means is that if the upper part of the complainant's body was not in contact with accused's body she could easily have managed to sit down and free herself from complainant's grip. There was no way complainant could have entered her private parts whilst seated.”

This is clearly indicative of the court entertaining the appellant being under attack but then falling into the error of seeking to measure, with nice intellectual callipers, the precise bounds of the legitimate defence.

The court a quo proceeded to draw inferences on the occurrences and discounted other possibility in circumstances where there is no justification for such findings.

The appellant was under attack from the lover, who forced his way into the house on the background of a misunderstanding over a cell phone message.

That the appellant sought to impose himself on her is reasonably possibly true given forced entry into the house and the use of a knife. The use of a knife to stab him, in face of a potential sexual abuse, cannot be said to be disproportionate to the harm that would have been caused by the non-consensual intimacy or rape.

That the appellant and complainant used to be intimate, consensually, in the past, should not be held against the appellant's defence given the background of disagreement.

In any event, prior consent to intimacy in the past would not mean consent on that day.

The forced entry into the appellant's house, given the affair, could have been most likely actuated by the beliefs that he was entitled to special privileges. This, on its own, gives credence to the appellant's defence of self-defence, and, in the face of sexual imposition, the limits of the defence were not exceeded.

The appellant's story was reasonably possibly true and she ought to have been acquitted.

The appellant had also appealed against sentence and the respondent conceded. I will not dwell much on the aspect of sentence as it does not arise given our finding on conviction.

Suffices, however, to point out, that, pursuant to a proper conviction for attempted murder, the sentence of 6 years imprisonment with 2 years suspended on condition of good behaviour is in sync with sentences imposed for similar offences.

There would have been no reason for interfering with the properly exercised sentencing discretion.

In the present case, the conviction cannot stand, and, consequently, the sentence falls off.

Accordingly, it is ordered that:

1. The appeal be and is hereby upheld.

2. The decision of the court a quo is set aside and substituted as follows:

The accused is found not guilty and acquitted.

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The two appellants were charged with allegations of obstructing or endangering the free movement of persons or traffic in contravention of section 38(C) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by placing and burning tyres and grass along the Harare-Mutare Road in Rusape.

They were convicted after a full trial and sentenced to 3 years imprisonment each of which 1 year imprisonment was suspended for 5 years on the usual conditions of good behaviour.

The appellants noted an appeal against both conviction and sentence on the following grounds:

“AS AGAINST CONVICTION

1. The Learned Magistrate erred in convicting appellants despite the fact that the State failed to prove its case beyond reasonable doubt due to the following:

(a)(i) The appellants clearly stated in their Defence Outline, that, they were not part of the crowd and were going to Ridgemont Park Suburb for some family assignment and that fact was not refuted by the State.

(ii) That, the reason they ran away was because they feared for their lives in view of the events of August 2018. Again, this assertion was not refuted.

(iii) That, they never participated in the blocking of the road as alleged or at all.

(b) The Learned Magistrate misdirected himself in failing to analyse the credibility of the three State witnesses in view of the following:

(i) That, the self-recorded statements, together with statements, were similar word for word save for personal information therefore connivance was apparent.

(ii) That, they all departed from their statements materially.

(iii) That, they never gave any details implicating appellant in their statements and that the attempt to do so, while giving evidence, clearly indicated that something happened between the receiving of statements and the time of testifying in court.

(iv) That, despite the clear challenge that they never arrested appellants and that they were not present when the appellants were arrested by soldiers, they all failed to identify, let alone, record statements of the alleged six soldiers, or at least mention their brigade. It is therefore clear that the witnesses were not present at the time appellants were arrested and assaulted, therefore could not have possibly witnessed the alleged participation by appellants.

(v) The Learned Magistrate misdirected himself on points of law and fact by failing to recognise the contradictions by the three State witnesses on the reasons why they did not self record the alleged participation of appellants which Sergeant Ngangu saying they were busy and Constable Chingonze saying they felt it was not necessary. Further, the Learned Magistrate failed to consider the improbable testimony of Sergeant Ngangu that it took them up to ten minutes to drive for a distance of 50 metres.

AS AGAINST SENTENCE

The sentence imposed by the Learned Magistrate is so severe as to induce a sense of shock in view of the following:

(i) That, appellants are young first offenders.

(ii) That, no one was injured as a result of the alleged action.

(iii) That, there are other available sentence of a fine or community service which the Learned Magistrate misdirected himself by failing to consider.”

The State alleged, in the State Outline, that, on 15 January 2019, at around 1030 hours, the appellants and outstanding four accomplices connived and proceeded to the 174km peg along the Harare-Mutare road where they placed some burning tyres on the road.

They were seen committing the offence by the Rusape reaction team which comprises of the members of the Zimbabwe Republic Police and the Zimbabwe National Army.

On noticing the reaction team approaching, the appellants ran away into different directions.

The reaction team chased after the appellants and managed to arrest them.

A partly burnt tyre was recovered by the police at the scene.

Although the grounds of appeal against conviction are clustered and heavily laden, the outstanding issues for appeal are:

(i) Whether the State failed to prove its case against the appellants.

(ii) Whether the court a quo failed to analyse the credibility of State witnesses.

Finally, on the issue of sentence, whether the sentence imposed by the court a quo was so severe as to induce a sense of shock.

As against conviction, the appellants submitted, that, there is no onus on them to prove their innocence.

They pointed out in their defence, that, they were not part of the crowd and they were on their way to Ridgemont Park for some family assignment. They ran away because they feared for their lives in view of the events of August 2018. The failure by the Trial Magistrate to accept this, to the appellants, was a misdirection. The State failed to prove its case beyond reasonable doubt.

The appellants went on to add to their submissions, that, the court a quo failed to analyse the credibility of the State witnesses.

According to the appellants, the witnesses for the State departed from their statements materially.

The appellants attacked the uniform format of the police's witnesses recorded statements and alleged connivance. The appellants further submitted, that, the witnesses testimony lacked credibility since the police were not present at the time the appellants were apprehended by members of the armed forces, the soldiers. The witnesses failed to accurately identify the appellants from a distance; maybe, the actual perpetrators fled from the scene unnoticed, argues the appellants.

On the other hand, the State submitted the following on the aspect of conviction:

The court a quo did not err nor misdirect itself in assessing the evidence adduced before it for it to come up with the verdict of guilty against the appellants.

The State went on to submit, further, that, the trial court correctly analysed the evidence and found the witnesses to be credible hence the verdict of the trial court was reasonable and justified by the evidence. The trial court accepted and relied on the evidence of the three police details who testified.

The appellants notable substantive point, observable from the appeal, is centralised on the evidence of the police details.

According to the record of proceedings, police received information about the conduct of the appellants and their partners. They reacted by coming to the scene, but, in the company of the members of the army.

Upon arrival at the scene, those responsible for barricading the road fled.

Constable Tichaona Merica pursued and managed to apprehend Leonard Rebanewako, the second appellant, whom he positively identified through the dreadlocks. Luke Ngangu chased after the first appellant and arrested him.

Both officers testified seeing each of the appellants actively involved in activities that perpetuated something to do with the barricading of the road.

The first appellant was placing a tyre on the road, the second appellant was holding some dry grass which he threw in the burning tyre; he was also seen placing a log on burning tyres.

Tichaona Merica was seated in front of the reaction team vehicle when he saw the events happening.

When the second appellant was arrested he admitted (see p19 of the record of proceedings).

Sergeant Ngangu was also seated in the front when he saw the first appellant throwing a tyre on the fire which was burning.

Constable Yvonne Chingonzo told the trial court a quo, that, the first appellant, upon arrest, admitted to barricading the road and asked for forgiveness for what he had done.

This evidence, found on pp36 and 59, is actually corroborated by the second appellant, and, the effect is that Constable Chingonzo is placed at the scene of the arrest contrary to the averments by the appellants, that, they were arrested by the soldiers and handed over to the police at a later stage.

As a general observation of the record of proceedings, most of his evidence was barely challenged by the defence.

The defence spent most of its time pointing out the similarities of the witness's written statements, and ignored the evidence which directly placed the appellants at the scene of the barricading.

The following issues are not in dispute:

(a) The Harare–Mutare Road was barricaded at Rusape on 15 January 2019 at the 174km peg. Tyres and logs were placed on the road and some of the tyres were burning.

(b) The police and the army reaction team arrived at the scene and the perpetrators fled.

(c) The two appellants were at the scene of the barricade and they were chased after and arrested.

The pertinent question is: whether the two appellants were part of the perpetrators?

The version of the appellants, deduced from the defence, is that they were merely passers-by at the crime scene. They were arrested while running away.

On p53 of the record of proceedings, the first appellant stated, that, whilst they were using the Mutare Road, they passed where people were violent. After passing, they heard people shouting “soldiers” and they started running.

The second appellant, relating the same event on p58, stated that, when they were in Mutare Highway and had passed the mob, they started running away since they had passed the scene; they were trying to separate themselves from the scene.

One can see the difficulties the two appellants find themselves in trying to explain their presence at the scene and why they were arrested.

However, as the State counsel properly put it in the heads of argument, the appellants were at or near the scene of the crime; they ran away when the police and the army arrived. They were caught in the process of running away.

The army and the police caught them by surprise, and, the probabilities, deduced from the circumstances of this case, is that the appellants were arrested because they were the last to be on the scene participating in the barricading.

The police details witnessed the two partaking in the barricading and chased after the two.

The court weighed both versions presented by the State and the appellants and believed the State.

The court a quo remains the domain on the issue of credibility, and, the factual findings of the lower court cannot easily be interfered with by a superior court unless the lower court's findings are so outrageous or irrational that no tribunal would act upon it: see S v Mpetha and Others 1983 (4) SA 262; S v Mlambo 1994 (2) ZLR 410 (S); Lovemore Dewa v S HH206-14; S v Mashonganyika HH131-18.

The trial magistrate reached a verdict after a competent analysis of evidence adduced, and, there is no basis by this court to quash that conviction; there is no irregularity shown by the appellants: see S v Gore 1991 (1) ZLR 117 (H)…,.

The conclusion by the court a quo is far from being erroneous, and, there are no compelling reasons advanced to this court to justify interference: see S v Madeyi 2013 (1) ZLR 14 (H)…,.

The defence went at sea attacking the contradictions between the written statements by the police details and their evidence in court.

It is not in dispute, that, the witnesses wrote almost identical versions of what happened on 15 January 2018.

That is not strange, since it happened that all three witnesses observed the chain of same event.

I do not agree with the defence, that, these statements are a result of connivance among the police witnesses.

A witnesses statement is not, per se, evidence but a precis of what the witnesses perceive happened.

In most cases, such a statement is prepared by a police detail. However, when juxtaposed with oral evidence in court, under oath, the oral evidence in court has more probative value for the assessment of the witness conduct in court, demeanour, and credibility.

The written statement forms part of the tools used by a court in evaluating the credibility of the witness, but, a statement cannot be classified as evidence so to speak, in my view. It is not confirmed by the fact that he said the same thing to somebody else on a previous occasion: see S v Moyo 1989 (3) ZLR 250 (S)…,.

The defence did not manage to prove that the witness statements or evidence discrepancies were material.

The discrepancies in witness's statements must be of such a magnitude and value that it goes to the root of the matter to such an extent, that, their presence would no doubt give a different complexion of the matter altogether: see S v Nduna and Another 2003 (1) ZLR 440 (H).

Discrepancies whose presence do not usher in that change should be regarded as immaterial, and, as such, of no value in the determination of the truth or otherwise of the matter before the court.

The criticism advanced by the defence, on the discrepancies, does not justify this court to interfere with the conviction.

Identification of the appellants, by the police, was direct, and, the police pursued the very people whom they have seen participating in the barricading and burning of tyres.

Those people are the two appellants.

I am convinced, that, the conviction is beyond reproach and hence the appeal against conviction is dismissed.

The soldiers were part of the reaction team constituting both army and police, and, the latter, has the right to arrest offenders and the police details did their constitutional mandate to arrest the appellants.

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

On 21 November 2018, we outlined reasons for dismissal of the appeal. The written reasons are captured herein.

Both appellants were convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They were convicted, on their own plea of guilty, for having assaulted the complainant with fists and booted feet several times all over the body for having worn a ZANU PF t-shirt.

The facts informing the charge, as discerned from the Outline, are that, on 4 July 2018, at 1600 hours, at Sedze Bottle Store, Chief Mutasa, Mutasa the complainant, who was wearing a ZANU PF t-shirt was approached by both appellants who questioned why he was wearing a ZANU PF t-shirt. Thereafter, the appellants teamed up and subjected the complainant to assaults till he fell to the ground and they persisted with the assault, kicking him with booted feet before the complainant made good his escape.

The complainant sustained injuries as follows: painful chest, painful teeth, and swollen face.

The appellants were each sentenced to 12 months imprisonment of which 4 months imprisonment was suspended for five years on the usual conditions of good behaviour.

Dissatisfied with the sentence imposed on them, both appellants lodged an appeal against sentence. The four (4) grounds of appeal are as follows:

“1. The learned magistrate in the court a quo erred in not considering community service or the payment of a fine as competent sentence.

2. The court a quo erred in holding imprisonment as the only deterrent punishment and failing to consider other forms of punishment, considering that both appellants were first offenders who pleaded guilty to the offence.

3. Further, the learned magistrate erred by ignoring the general principle of keeping first offenders out of prison, especially if there are no compelling reasons for the imposition of a custodial sentence.

4. The court a quo erred by failing to accord a plea of guilty sufficient weight it must be accorded.”

The respondent opposed the appeal, arguing that the sentence imposed was appropriate in the circumstances of a politically-motivated assault.

From the grounds of appeal, what falls for determination in this case is whether or not the court a quo, in sentencing the appellants, judiciously applied its mind to the general sentencing principles in the exercise of its sentencing discretion.

It is trite law, that, the determination of sentence, in criminal matters, is pre-eminently a matter for the discretion of the trial court: see S v Mungwenhe and Another 1991 (2) ZLR 66; S v Matanhire and Others HH18-03; and S v Mundowa 1998 (2) ZLR 395.

In S v Mundowa 1998 (2) ZLR 395 it was held, that, a superior court will not lightly interfere with a court's sentence unless the discretion was not judiciously exercised; that is, unless sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court would have imposed it.

In the present case, the sentencing court reasoned, that, any other form of sentence would trivialise an otherwise serious politically motivated assault which occasioned serious injuries on the complainant as per the medical evidence.

The sentencing court took into account that the nation was in an election mode and that there was need to pass a deterrent sentence so as to promote peace and political tolerance.

The court took note, that, the appellants were first offenders who pleaded guilty and gave credit for that by suspending a portion of the prison term.

The question that begs for an answer is: given the circumstances of the matter, and the assessment of sentence, was there an error committed by the sentencing court in determining and/or applying facts and sentencing principles in a bid to come up with an appropriate sentence?

If there was an error, then, it amounts to a misdirection warranting interference; but, if there was no error, then, there is no basis and justification for interfering with the sentencing discretion of the court.

It is important to bear in mind, that, in an appeal against sentence, the question for the Appeal Court is not what sentence it would have imposed, but, whether or not the sentencing discretion was improperly exercised and whether the sentence imposed is so outrageous as to induce a sense of shock.

In the case of S v Berliner 1967 (2) SA 193 AD…, the court explained, elaborately, what falls for consideration in an appeal against sentence when it held that:

“As the essential inquiry in an appeal against sentence, however, is not whether the sentence is right or wrong, but whether the court imposing it exercised its discretion properly and judiciously.

A mere misdirection is not, by itself, sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or serious that it shows directly, or indirectly, that the court did not exercise its discretion at all or exercised it improperly or unreasonably.

Such a misdirection is usually termed one that vitiates the court's decision on sentence.

That is the type of misdirection that the dictates of justice clearly entitle the Appeal Court to consider the sentence afresh.

The enunciated stance clearly shows, that, an Appeal Court does not lightly interfere with the sentencing discretion and only does so when the sentence so imposed shows an improper exercise of discretion, and sentencing discretion which is contrary to the interests of administration of justice.”

CHINHENGO J, in S v Mutemi 1999 (2) ZLR 290 H…, adopted this approach, albeit, in a review, when he had this to say:

“I will therefore, despite the failure by the magistrate, in principle, to adopt the correct approach to sentence in this matter, confirm proceedings as having been in accordance with real and substantial justice.”

Also on point is section 38(2) of the High Court Act [Chapter 7:06]. It provides:

“Notwithstanding that the High Court is of the opinion that any point raised might be decided in favour of the appellant, no conviction or sentence shall be set aside or altered unless…, the High Court considers that a substantial miscarriage of justice has actually occurred.”

In the present case, the fact that the court a quo did not give detail on discarding the option of a fine and community service cannot be said to vitiate the proper exercise of sentencing discretion; moreso, given the reasoning that the court took it other forms of sentence would trivialise an otherwise serious offence.

The court did not take that assault as an ordinary assault, but a politically-motivated assault which involved violation of the Constitutional rights of freedom of participation and aligning one to a party of their own choice.

The court, in its reasoning, considered the politically motivated assault as a serious offence for which community service was not appropriate.

In the case of S v Chiweshe 1996 (1) ZLR 425 it was held, that, it is not every case where an accused is sentenced to a short sentence of imprisonment that community service is imposed.

See also S v Chikomo HH107-94 in which the court remarked, that, there is need for caution in imposing community service on offenders lest there be risk of adverse public reaction.

In this case, the sentencing court was mindful of the fact, that, the politically motivated assault occurred at the backdrop of a politically charged environment with a clarion call for need to maintain political maturity, tolerance, and so as to conduct the national election in peace.

I am alive to the fact, that, the sentencing provisions for assault, as provided for in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], provide for the option of a fine up to level fourteen or imprisonment for a period not exceeding 10 years or both.

It is also settled, that, where the penalty provision provides for the option of a fine, that should be the starting point before resorting to the rigorous sentence of imprisonment.

In the case of State v Matanhire 1982 (1) ZLR 139 McNALLY J…, had this to say:

“When sentencing first offenders, the court should consider very carefully whether to send them to prison. The courts should resort, more frequently, to fines than they have done in the past, if the circumstances of the case allow it…,.. This does not mean a blanket rule that criminals only lose their amateur status after their second offence. The court should, in each case, ask itself 'is it necessary to send this man to prison for the offence?' Only if the answer is 'yes' should a term of imprisonment be imposed.”

See also S v Ngombe HH04-87 and S v Mugande HB132-17.

In S v Mugande HB132-17, the court had this to say in respect of a prison sentence:

“It is trite a principle of our law that prison sentences are reserved for serious offence. The principle is well established that custodial sentences are only to be imposed as a last resort where a non-custodial sentence would tend to trivialise the case. The guiding principle is, however, that, the sentencing court must exercise its discretion, and, where such discretion is not used judiciously, a higher court has untethered right to interfere with such sentence in the interests of justice.”…,.

What is clear in all these cases is that the sentencing court has to properly exercise its sentencing discretion.

The circumstances of each case come into consideration holistically. The thought process and reasoning ought to be visible in the reasons for sentence.

In this case, the sentencing court did not consider the assault as an ordinary assault but a politically-motivated one which called for deterrence.

The trial magistrate reasoned, that, other forms of sentence would trivialise the matter and imposed a prison term with a portion suspended.

The failure to record details of the thought process, given the reasons for sentence, in my view, does not vitiate the exercise of the sentencing discretion to the detriment of the interest of administration of justice.

The circumstances of the case warranted imposition of imprisonment.

The sentencing court sought to match the offence to the offender and decided on an appropriate sentence which cannot be described as outrageous.

In S v Mark Tekwane HH204-01 and S v David Pedzisa HH184-02 effective prison terms were imposed for politically-motivated assaults.

The sentencing court, in this case, was mindful of other sentencing options which it discounted and gave reasons for imposing a custodial term.

The sentence of 12 months with 4 months suspended on usual conditions of good behaviour for a politically motivated assault, in the circumstances, was befitting. The sentencing discretion was properly and judiciously exercised such that there is no basis for interference with the findings of the court a quo.

Consequently, the appeal against sentence is dismissed.

HMT49-19 : MAXWELL MARANGWANDA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellant, Maxwell Marangwanda, aged 56 years, was charged and convicted of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] where it is alleged, that, on 29 August 2018, at Nyachityu Business Centre, Marange, Mutare, the appellant hit Patson Chakawanda twice on his arms with an iron bar.

On 27 February 2019, the appellant was sentenced to 12 months imprisonment of which 3 months imprisonment was suspended for 2 years on condition accused does not during that period commit any offence involving violence for which he is sentenced to imprisonment without the option of a fine, leaving an effective prison term of 9 months.

On 5 March 2019, the appellant noted an appeal against both conviction and sentence and outlined the following as grounds of appeal:

“1. AD CONVICTION

(a) The learned trial Magistrate erred at law and facts in convicting the appellant when the evidence led by the State was totally inadequate for the purposes of securing a conviction. The conviction was based on a single witness, the complainant, who was not credible. This is because the other State witnesses did not corroborate the evidence of the complainant.

(b) The learned trial Magistrate misdirected herself by accepting the evidence of the complainant which was not corroborated by the evidence of the other two witnesses.

(c) The learned Magistrate erred and misdirected herself by putting onus on the appellant when all that was required of appellant was to offer an explanation which is possibly true.

(d) The learned Magistrate erred and misdirected herself in law and fact in mis-interpreting the medical affidavit and reaching a conclusion that the injuries were as a result of an assault when they could have been caused by complainant falling as he was drunk.

(e) The learned Magistrate erred and misdirected herself in failing to properly appraise the credibility and testimony of appellant and giving reasons why such evidence was rejected.

(f) The learned Magistrate erred and misdirected herself in making a finding of facts that the State had discharged its onus of proving the essential elements of the crime beyond reasonable doubt as is required by the law.

2. AD SENTENCE

(i) The learned Magistrate erred in imposing a sentence that is disturbingly disproportionate to the gravity of the crime; that is to say, the sentence is manifestly excessive and so harsh as to cause a sense of shock.

(ii) The learned Magistrate misdirected herself by over-emphasising the appellant's crime and under estimating the person, character, and circumstances of the crime resulting in the miscarriage of justice.

(iii) The learned Magistrate misdirected herself by failing to consider non-custodial forms of punishment like a wholly suspended sentence, a fine, community service and/or a combination of the above. Moreso the penal provision provides for a fine.

(iv) The learned Magistrate misdirected herself by failing to take into account the mitigation by appellant and to indicate what portion of the sentence was modestly reduced as a result of these mitigatory circumstances.”

EVIDENCE LED ON BEHALF OF THE STATE

The complainant, Patson Chakawanda, told the trial court that he had known the appellant since 1995. He knew the reason why the appellant was in court - the appellant had assaulted him on 29 August 2018.

On that date, the complainant was coming from Mutare when he decided to go to the appellant's shop to buy opaque beer, commonly called 'supa'. Upon arrival, he shook the appellant's gate; there was no response. The witness waited assuming that the appellant had heard the shaking. The appellant came from behind, did not ask what the complainant wanted, but then struck the complainant on the arm.

The complainant ventured to ask the appellant why he was assaulting him; the appellant did not respond but went on to hit the other arm.

The complainant screamed, and, because of the assault, fainted.

In that condition, the complainant regained consciousness whilst he was then by a fowl run. He was in pain.

Upon gaining consciousness, he recalled the appellant summoning Lovemore Nyadongo to come to the scene and check whether he could identify the complainant.

Lovemore Nyadongo brought a torch and positively identified the complainant as his uncle.

The appellant told Lovemore Nyadongo that the complainant intended to steal chickens, but, Lovemore Nyadongo disbelieved the appellant's allegation indicating that the complainant could not possibly steal, since, as a pensioner, he had his own money.

The appellant went on to call another person, his neighbour, who obliged to the appellant's call.

The appellant went on to tell the neighbour that he (appellant) found the complainant surrounded by dogs and that the complainant tried to jump a wire that was about 3 metres. The neighbour called by the appellant pointed out, that, the complainant was in pain and needed hospital attention, but, the complainant did not accede to the issue of hospital.

The appellant went on to call yet another neighbour who heeded to the appellant's call. Upon that third neighbour's arrival, the appellant explained to the neighbour, that, he had found the complainant in his fowl run.

The complainant was then taken to Bocha Clinic.

Under cross-examination, he told the court that he arrived at the appellant's place at around 8-9pm. The complainant told the court, that, he was not intoxicated; he had taken only one 'supa'. He further testified, that, he could not have been found by the appellant at the fowl run for that would have meant that he would have jumped the perimeter fence, coupled with his age (74 years), he would not have scaled the fence.

He did not see what hit his arm but he believed it was a metal bar.

As far as he recalled, he fell unconscious at the gate and the appellant lifted him up to the fowl run. He did not pace up and down in the appellant's premises; he only did so when he regained consciousness and did so out of pain.

One clear observation can be deduced from the complainant's evidence. He was hit from behind by a hard object and screamed.

The appellant did not leave the scene thereafter. He then summoned three of his neighbours to the scene, and, Lovemore Nyadongo positively identified the complainant. When the second neighbour arrived at the scene, he observed that the complainant was in pain and needed medical attention.

There is no break on the chain of events and the accused did not, at all the stages, explain how the complainant had sustained the pain observed by one of the neighbours.

He deliberately concealed the information.

The second witness called by the State was Lovemore Nyadongo.

He knows both the appellant and the complainant. On 29 August 2018, he was woken up by his wife after hearing someone screaming. He took a torch and went where the cry was coming from. He heard the appellant calling out whether it was him and he confirmed. He was told by the appellant that the appellant had caught someone at the fowl run and had entered his yard.

The witness jumped the wire to gain entrance and the wire he jumped is one and half metres high.

Upon arrival by the witness, he saw the appellant, his worker, and wife; he was asked whether he knew the complainant - he knew him.

Of importance, when Lovemore Nyadongo arrived at the scene, he saw that the complainant was severely injured on his hands….,.

Lovemore Nyadongo asked the appellant how the complainant sustained a fracture on his hands, he was told by the appellant: “I saw this guy jumping wire and had found him surrounded by dogs and upon trying to jump again he then fell.”…,.

Lovemore Nyadongo did not perceive any dogs barking but heard cry screams.

The appellant indicated to the witness that he wished to call his neighbour, Mr Mutongo, to come and see the complainant.

Later, the appellant left the witness.

Meanwhile, the witness saw the complainant crying, walked towards the witness homestead, he fell in a pit. The witness lifted him from the pit; the complainant could not help himself, he was in a confused state.

Under cross-examination by the defence, he reiterated, that, when he was called to the scene, the complainant had sustained a broken arm.

After the examination of the complainant by a medical doctor, he then learnt that both hands had been fractured.

To the witness, the complainant was average drunk.

He only saw footprints, at a later stage, belonging to the complainant and they were both inside and outside the appellant's residence.

Felix Majaya, a police detail, was called by the State.

The piece of evidence crucial to this appeal, from this witness, is what he was told by the appellant.

The appellant told the police, that, the complainant had been robbed and he went on to get into the appellant's fence….,.

The appellant later told the police, that, the complainant wanted to steal chickens.

The witness told the court a quo, that, the appellant gave different versions.

The appellant testified.

He is 58 years old. He saw the complainant at 9pm behind his fowl run; he was the first person to see the complainant. When he saw the complainant, he woke up his employee, Clever Nyahotsi.

Whilst he was with Clever Nyahotsi, the complainant jumped into the paddock, Clever went towards the complainant and had dogs. The appellant went where Clever and the complainant were and asked the complainant to sit down.

He saw Lovemore Nyadongo coming and went where the complainant was seated.

Lovemore Nyadongo confirmed to the appellant that the complainant was his uncle.

He decided to call another neighbour, and, when he returned he found Clever Nyahotsi and the complainant seated inside the yard.

When the appellant came to the place where the complainant was seated, he heard, for the first time, from Godfrey, that, his hands had been injured.

It was Godfrey who proposed to the appellant that they should go to the hospital because the complainant was crying.

The footprints did not lead to the main gate, he said, but behind his house.

He did not hear any scream from the complainant. He does not know why the complainant would allege that he assaulted him. He had woken up to protect his chickens and thought that the complainant was a thief.

This is the evidence which was presented before the court a quo. This is the evidence which the appellant impugns saying it was not adequate to prove the State case beyond a reasonable doubt.

It is not in dispute that the court a quo was faced with a single witness - the complainant.

In terms of section 269 of the Criminal Procedure and Evidence Act, it is competent to convict an accused on the evidence of a single witness.

See also S v Tsvangirai & Ors 2003 (2) ZLR 88 (H).

What is important in such a scenario is for the trial court to be alive to the fact, that, where there is only one single witness to the crime, special evidential rules apply.

What the trial court should try to do is to guard against the obvious risk of convicting the accused on the basis of uncorroborated evidence of a single witness. The single witness should therefore be credible in all respects.

What matters at the end of the day is the quality rather than the quantity of evidence led: see S v Zvimbovora 1992 (1) ZLR 41 (S); S v Mutandi 1996 (1) ZLR 367 (H); R v Mokoena 1956 (3) SA 81 (A); and S v Magodo 2017 (1) ZLR 294.

In casu, the court a quo did not critically analyse this aspect of a single witness. That was a misdirection - though it was not fatal to the proceedings.

It accepted the State's evidence and rejected the defence's version.

The appellant's conduct, on the date in question, portrays a guilty mind. He gave various versions to what had caused the fractures on the complainant's arms.

To the police, he mentioned that the complainant had been robbed; on one occasion he told the court a quo that the complainant jumped over high fences and that could have led to his fracture. Yet, on the other hand, he wanted to convince the court that the complainant had fallen into a pit.

The complainant gave a coherent un-impeached chronicle of what happened; he wanted a 'supa' and went to the appellant's property. The appellant might have retired, and, when he heard the shaking of the gate, he woke up and found the complainant at his premises; he hit him thinking that he was a thief and intruder.

When Lovemore Nyadongo arrived and dispelled the fear of the complainant being a thief, the appellant decided to create a way of trying to find some other causes of injury other than his assault.

Lovemore Nyadongo found the complainant injured already, well before the complainant fell into the pit, which event occurred after the arrival of Nyadongo.

Throughout the night, the appellant stated he saw the complainant first and tracked his movement whilst in the appellant's yard. However, he could not tell the court exactly at what point the complainant sustained the injuries.

Although the learned trial magistrate failed to pinpoint the cautious approach in single witnesses cases, he nevertheless, properly in my view, did an appropriate evaluation of the State witnesses and arrived at an appropriate decision.

I am convinced the State managed to prove its case beyond reasonable doubt and the conviction of the appellant, by the court a quo, is unassailable.

The appeal against conviction has no merit.

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

prev 1 2 3 next

Back Main menu

Law Portal Zimbabwe

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

HB171-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs ALLAN COURTNEY RORY MUIL Ruled By: MAKONESE J

HB246-16 : WASHINGTON MUCHENU vs THE STATE Ruled By: MAKONESE J and MOYO J

HMA14-18 : GILBERT BALOYI vs THE STATE Ruled By: MAWADZE J and MAFUSIRE J

HH778-15 : WILSON MUKARONDA ZUNIDZA vs THE STATE Ruled By: CHIWESHE JP and HUNGWE J

HMA33-17 : AUBREY CUMMINGS vs THE STATE Ruled By: MAFUSIRE J

HH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE Ruled By: HUNGWE J and MUSHORE J

Appealed SC44-19 : FEATHERS MUKONDO vs THE STATE Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE Ruled By: GOWORA JA

Appealed SC79-18 : WONDER MUNSAKA vs THE STATE Ruled By: MAKARAU JA, GUVAVA JA and BERE JA

HH303-15 : LYSON ZIYADHUMA vs THE STATE Ruled By: HUNGWE J and BERE J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE Ruled By: HUNGWE J and BERE J

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE Ruled By: PATEL J and HUNGWE J

HH420-13 : MAZVITA EVELYN FATA vs THE STATE Ruled By: HUNGWE J and MAVANGIRA J

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE Ruled By: HUNGWE J and BERE J

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA Ruled By: CHITAPI J

HH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE Ruled By: MATHONSI J

HH15-20 : MARY MUBAIWA vs THE STATE Ruled By: KWENDA J

CCC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY Ruled By: MALABA CJ

SC43-17 : JOSEPH CHANI vs THE STATE Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

View Appeal HH277-17 : FEATHERS MUKONDO vs THE STATE Ruled By: HUNGWE J and MWAYERA J

CCC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MAKONESE J and MOYO J

View Appeal SC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH42-12 : WILLARD CHAWIRA vs THE STATE Ruled By: UCHENA J and MWAYERA J

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE Ruled By: CHIKOWERO J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT Ruled By: UCHENA JA

HH196-18 : IGNATIUS CHOMBO vs THE STATE Ruled By: MUSHORE J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

SC69-21 : NEVERSON MWAMUKA vs THE STATE Ruled By: MAVANGIRA JA

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL Ruled By: MAKONI JA

SC75-14 : ABRAHAM MBOVORA vs THE STATE Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC114-21 : TONGAI JINDU vs THE STATE Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

HB61-15 : MICHAEL NDIWENI vs THE STATE Ruled By: KAMOCHA J and TAKUVA J

HMA03-19 : STATE vs JOHANIS MUKWENA Ruled By: MAFUSIRE J and MAWADZE J

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE Ruled By: MAWADZE J and WAMAMBO J

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT05-20 : TELLMORE MANWERE and SEBASTINE TANAKA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT07-20 : FIBIAN MUNYUKI vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT08-20 : LIKANI SITHOLE vs THE STATE Ruled By: MUZENDA J and MWAYERA J

HMT42-19 : AGNESS CHIGWADA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE Ruled By: MUSAKWA J and MWAYERA J

HMT49-19 : MAXWELL MARANGWANDA vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT54-19 : CHIVHARANGE TONGI vs THE STATE Ruled By: MWAYERA J and MUZENDA J

Categories

Your Donation.

Law Portal
Zimbabwe

HB171-16 : THE PROSECUTOR GENERAL OF ZIMBABWE vs ALLAN COURTNEY RORY MUIL
Ruled By: MAKONESE J

HB246-16 : WASHINGTON MUCHENU vs THE STATE
Ruled By: MAKONESE J and MOYO J

HMA14-18 : GILBERT BALOYI vs THE STATE
Ruled By: MAWADZE J and MAFUSIRE J

HH778-15 : WILSON MUKARONDA ZUNIDZA vs THE STATE
Ruled By: CHIWESHE JP and HUNGWE J

HMA33-17 : AUBREY CUMMINGS vs THE STATE
Ruled By: MAFUSIRE J

HH231-17 : PETER CHIKUMBA and GRACE NYARADZAYI PFUMBIDZAI vs THE STATE
Ruled By: HUNGWE J and MUSHORE J

Appealed SC44-19 : FEATHERS MUKONDO vs THE STATE
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

Appealed SC79-18 : WONDER MUNSAKA vs THE STATE
Ruled By: MAKARAU JA, GUVAVA JA and BERE JA

HH303-15 : LYSON ZIYADHUMA vs THE STATE
Ruled By: HUNGWE J and BERE J

HH289-17 : STANLEY MUSENDO and TAPIWA GIVEMORE KASUSO vs THE STATE
Ruled By: HUNGWE J and BERE J

HH72-06 : GIVEMORE CHIMANIKIRE vs THE STATE
Ruled By: PATEL J and HUNGWE J

HH420-13 : MAZVITA EVELYN FATA vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

HH63-15 : DHIN'INDLELA NYASHA MTETWA vs THE STATE
Ruled By: HUNGWE J and BERE J

HH65-18 : THE STATE vs SHEPHERD SHAMBARE and EVERSET MATUNGE and GEORGE KASEKE and STANLEY CHITENDA
Ruled By: CHITAPI J

HH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE
Ruled By: MATHONSI J

HH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

CCC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

SC43-17 : JOSEPH CHANI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

View Appeal HH277-17 : FEATHERS MUKONDO vs THE STATE
Ruled By: HUNGWE J and MWAYERA J

CCC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

CCC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

HB40-16 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MAKONESE J and MOYO J

View Appeal SC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH42-12 : WILLARD CHAWIRA vs THE STATE
Ruled By: UCHENA J and MWAYERA J

View Appeal HH16-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: CHIKOWERO J

SC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

HH196-18 : IGNATIUS CHOMBO vs THE STATE
Ruled By: MUSHORE J

Appealed SC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

SC69-21 : NEVERSON MWAMUKA vs THE STATE
Ruled By: MAVANGIRA JA

SC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

SC84-21 : TAFADZWA MAPFOCHE vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

SC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

SC75-14 : ABRAHAM MBOVORA vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC114-21 : TONGAI JINDU vs THE STATE
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

HH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

SSC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

HB61-15 : MICHAEL NDIWENI vs THE STATE
Ruled By: KAMOCHA J and TAKUVA J

HMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

CCC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA48-19 : PROSPER CHITANGA vs THE STATE
Ruled By: MAWADZE J and WAMAMBO J

HMT02-20 : KUNDAI TSAURA and JOSEPH TSAURA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT05-20 : TELLMORE MANWERE and SEBASTINE TANAKA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT07-20 : FIBIAN MUNYUKI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT08-20 : LIKANI SITHOLE vs THE STATE
Ruled By: MUZENDA J and MWAYERA J

HMT42-19 : AGNESS CHIGWADA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT46-19 : ARCHFORD CHARI and LEONARD REBANEWAKO vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT47-19 : ROBERT KABVUNZA and ITAI KABVUNZA vs THE STATE
Ruled By: MUSAKWA J and MWAYERA J

HMT49-19 : MAXWELL MARANGWANDA vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT54-19 : CHIVHARANGE TONGI vs THE STATE
Ruled By: MWAYERA J and MUZENDA J